The Supreme Court is sitting on one of the most consequential separation-of-powers cases in a generation, and Justice Neil Gorsuch appears to have seen it coming from the bench in November.

During oral arguments over President Trump's use of the International Emergency Economic Powers Act to impose tariffs, Gorsuch zeroed in on a structural problem that Congress has spent decades ignoring: once a president gains emergency authority, no one takes it back.

"What president's ever going to give that power back? A pretty rare president. So how should that inform our view?"

That question now hangs over the Court as it prepares to release opinions on three separate days between now and next Wednesday. Prediction market Kalshi saw odds of a tariff decision landing this month jump from 40 percent to more than 70 percent after the Court scheduled those opinion days, The Hill reported. One hundred and five days have passed since oral arguments, longer than in other recent expedited cases.

The one-way ratchet

IEEPA was enacted in 1977. For nearly half a century, it has given presidents sweeping authority to respond to declared emergencies. The question before the Court is whether that authority extends to tariffs, a power the Constitution explicitly assigns to Congress.

Gorsuch wasn't the only Trump-nominated justice raising the alarm. Justice Amy Coney Barrett pressed Solicitor General D. John Sauer on exactly the structural trap Gorsuch described:

"Let's say that we adopt your interpretation of the statute. If Congress said, 'Whoa, we don't like that, that gives a president too much authority under IEEPA,' it's going to have a very hard time pulling the tariff power out of IEEPA, correct?"

Sauer's response was revealing. He argued that Congress retains the ability to claw back delegated power, pointing to Congress's vote to terminate the COVID-19 emergency a few years ago as proof that the system works. He framed the arrangement as a built-in "political discipline."

"What the statute reflects is there's going to be the ability for a sort of political consensus against a declared emergency. Nevertheless, that's a political discipline."

Gorsuch was unconvinced. He noted that any emergency repeal would need to survive a presidential veto, which means Congress would need a two-thirds supermajority in both chambers to override. His assessment of those odds was blunt: "It's going to be veto-proof."

In other words, the emergency ratchet turns in one direction. The president declares, Congress objects, the president vetoes the objection, and the emergency stands unless a supermajority materializes. That's not a check. It's a formality.

Congress proves the point

Last week, the House voted 219-211 to repeal Trump's Canada tariffs under IEEPA. Six House Republicans crossed the aisle. The measure now heads to the Senate, where it only needs a simple majority to pass. Four Senate Republicans joined Democrats on a similar effort last year.

None of it matters if Trump vetoes the repeal. And he will.

This is exactly the dynamic Gorsuch flagged from the bench. Congressional opposition exists, but it cannot reach the two-thirds threshold required to override. The revolt is real in sentiment and entirely symbolic in effect. Speaker Mike Johnson acknowledged as much when he explained the House Republican posture:

"I think the sentiment is that we allow a little bit more runway for this to be worked out between the executive branch and the judicial branch."

Translation: Congress is punting to the Court. The legislative branch, constitutionally vested with the power to regulate commerce and impose duties, is openly asking the judicial branch to sort out the authority that Congress itself delegated away decades ago. The irony writes itself.

The real question the Court faces

This case is not simply about tariffs. It is about whether a nearly fifty-year-old statute can be stretched to cover anything a president declares an emergency. The answer the Court gives will echo far beyond trade policy.

If IEEPA authorizes tariffs under emergency declarations, it authorizes almost anything under emergency declarations. Export controls, financial sanctions, asset seizures, trade barriers: the limiting principle evaporates. Every future president, regardless of party, inherits that precedent. Every future Congress faces the same veto-proof trap Barrett and Gorsuch described.

Conservatives who care about structural limits on government power should pay close attention. The instinct to support a president's policy goals is understandable, but the constitutional architecture matters more than any single trade dispute. Gorsuch and Barrett aren't questioning whether tariffs are good policy. They're questioning whether this is how the American system is supposed to work.

That distinction is everything.

The Court's silence, and one justice who broke it

While the Court deliberates behind closed doors, Justice Ketanji Brown Jackson broke from the usual practice of judicial silence during a book promotion appearance on CBS Mornings last week. She acknowledged there are "lots of nuanced legal issues" involved and that "it takes a while to write."

"The court is going through its process of deliberation, and the American people expect for us to be thorough and clear in our determinations, and sometimes that takes time."

Fair enough. But 105 days is a long time for an expedited case, and the political calendar is tightening. The State of the Union is scheduled for Tuesday evening. Chief Justice Roberts typically attends, and the Court has shown a willingness to time its releases for maximum impact. Last year, while Roberts was sitting on Trump's emergency appeal to freeze foreign aid, the Court released its decision at 8:59 a.m. the morning after the address.

Nobody should be surprised if this week delivers the tariff opinion with similar timing.

What conservatives should watch for

The outcome of this case will reveal where each justice draws the line on executive emergency authority. A few things worth tracking:

• Whether the Court narrows IEEPA's scope or leaves the statute intact while ruling on its application to tariffs specifically
• Whether Gorsuch or Barrett writes separately to address the structural delegation problem
• Whether the decision is narrow enough to preserve presidential flexibility in genuine emergencies while closing the tariff loophole
• How Congress responds, particularly whether Johnson's caucus finds the appetite for legislative clarity it currently lacks

The best outcome for constitutional conservatives is a Court that takes the separation of powers seriously without stripping the executive of legitimate emergency tools. That's a needle to thread, but Gorsuch and Barrett showed in November they understand what's at stake.

Congress handed away its own authority half a century ago. The Court may be the only institution willing to notice.