Today, The Dispatch published my new article (gift link) on the Supreme Court’s tariff decision, entitled “The Supreme Court Spurns a Presidential Power Grab.” Here’s an excerpt:
On Friday, the Supreme Court ruled on three cases challenging President Donald Trump’s massive system of tariffs imposed under the International Emergency Economic Powers Act of 1977 (IEEPA). In a 6-3 decision, the court rightly held that IEEPA does not give the president the power to impose tariffs. Among the cases decided was VOS Selections Inc. v. Trump, which the Liberty Justice Center and I filed on behalf of five small American businesses harmed by the tariffs (we were later joined by prominent litigators Neal Katyal and Michael McConnell). The decision is important for its impact on tariffs, and as a rejection of a sweeping executive power grab. But it also raises a crucial broader—and as yet unresolved—issue: how much deference to give presidential invocations of sweeping emergency powers. That issue is central to various cases working their way through the courts, and may soon arise again in the tariff context….
The main basis for the court’s ruling is that IEEPA does not even mention the word “tariff,” and has never been used to impose them by any previous president during the statute’s nearly 50-year history. The power to “regulate” importation, which IEEPA does grant in some situations, does not include a power to impose taxes.
But an additional crucial factor was the sheer scope of the authority claimed by Trump. As Chief Justice John Roberts noted in his opinion for the court, the president claimed virtually unlimited power to “impose tariffs on imports from any country, of any product, at any rate, for any amount of time…”
Under Trump’s interpretation of the law, the president would have virtually unlimited tariff authority, similar to that of an absolute monarch of the kind King Charles I aspired to be. The court decisively rejected this aspiration to unconstrained presidential power. Roberts’ majority opinion, a concurring opinion by Justice Neil Gorsuch, and one by Justice Elena Kagan (writing for all three liberal justices) all, in different ways, emphasized this aspect of the case. As Gorsuch put it, “Our system of separated powers and checks-and-balances threatens to give way to the continual and permanent accretion of power in the hands of one man. That is no recipe for a republic…”
But the judiciary’s future ability to constrain dangerous presidential power grabs depends in large part on an issue the court managed to avoid in the IEEPA case: whether and to what extent to defer to presidential assertions that an extraordinary situation exists justifying the invocation of sweeping emergency powers.
The article goes on to discuss how the issue of deference is likely to come up in potential litigation over Trump’s efforts to use Section 122 of the Trade Act of 1974 to impose a new set of sweeping tariffs:
The issue of how much deference to give to presidential invocation of emergencies is also likely to arise again in the context of tariffs. Within hours of the court’s decision, Trump issued an executive order using Section 122 of the Trade Act of 1974 to impose 10 percent global tariffs, before upping the rate to 15 percent the next day. But Section 122 only permits tariffs in response to “fundamental international payments problems” that cause “large and serious United States balance-of-payments deficits” (which are not the same thing as trade deficits), “an imminent or significant depreciation of the dollar,” or to cooperate with other countries in addressing an “international balance-of-payments disequilibrium.” As prominent conservative legal commentator Andrew McCarthy explains in an insightful article for National Review, these preconditions for the use of Section 122 do not exist. There is no “fundamental international payments problem,” and the United States does not have a balance-of-payments deficit. In addition, Section 122 tariffs can only remain in force for up to 150 days unless extended by Congress.
But when the Section 122 tariffs are challenged in court (as they likely will be), judges will have to decide whether to defer to Trump on the question of whether the statutory prerequisites are met. And when the 150-day period expires, they may also have to decide whether Trump can extend it simply by claiming a new balance-of-payments problem has arisen. If judges (mistakenly) give him broad deference, Section 122 could become a blank check for presidential tariff-setting that the Supreme Court just denied him in the IEEPA case.
The US Supreme Court ruled 6-3 that Trump‘s tariffs under IEEPA exceeded presidential authority.
Chief Justice John Roberts authored the majority opinion citing lack of clear congressional authorization.
The ruling invoked the major questions doctrine limiting executive power on significant economic actions.
The decision was challenged by businesses and 12 US states, mostly Democratic-governed.
The U.S. Supreme Court struck down Donald Trump‘s sweeping tariffs that he pursued under a law meant for use in national emergencies, handing a stinging defeat to the Republican president in a landmark opinion on Friday with major implications for the global economy.
The justices, in a 6-3 ruling authored by conservative Chief Justice John Roberts, upheld a lower court’s decision that Trump‘s use of this 1977 law exceeded his authority. The justices ruled that the law at issue – the International Emergency Economic Powers Act, or IEEPA – did not grant Trump the power he claimed to impose tariffs.
“Our task today is to decide only whether the power to “regulate … importation,” as granted to the president in IEEPA, embraces the power to impose tariffs. It does not,” Roberts wrote in the ruling, quoting the statute’s text that Trump claimed had justified his sweeping tariffs.
The White House had no immediate comment on the ruling. Democrats and various industry groups hailed the ruling.
Part of the Supreme Court’s majority also declared that such an interpretation would intrude on the powers of Congress and violate a legal principle called the “major questions” doctrine.
The doctrine, embraced by the conservative justices, requires actions by the government’s executive branch of “vast economic and political significance” to be clearly authorized by Congress. The court used the doctrine to stymie some of Democratic former President Joe Biden’s key executive actions.
Roberts, citing a prior Supreme Court ruling, wrote that “the president must ‘point to clear congressional authorization’ to justify his extraordinary assertion of the power to impose tariffs,” adding: “He cannot.”
Roberts wrote that if Congress had intended IEEPA to bestow on the president “the distinct and extraordinary power to impose tariffs, it would have it would have done so expressly – as it consistently has in other tariff statutes.”
Trump has leveraged tariffs – taxes on imported goods – as a key economic and foreign policy tool. They have been central to a global trade war that Trump initiated after he began his second term as president, one that has alienated trading partners, affected financial markets and caused global economic uncertainty.
The Supreme Court reached its conclusion in a legal challenge by businesses affected by the tariffs and 12 U.S. states, most of them Democratic-governed, against Trump‘s unprecedented use of this law to unilaterally impose the import taxes.
The three dissenting justices were conservatives Clarence Thomas, Samuel Alito and Brett Kavanaugh. Joining Roberts in the majority were conservative Justices Neil Gorsuch and Amy Coney Barrett, both of whom Trump appointed during his first term in office, along with the three liberal justices, Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson.
The liberal justices did not join the part of the opinion invoking the major questions doctrine.
The Supreme Court, which has a 6-3 conservative majority, previously had backed Trump in a series of other decisions issued on an emergency basis since he returned to the presidency in January 2025 after his policies were impeded by lower courts.
Trump‘s tariffs were forecast to generate over the next decade trillions of dollars in revenue for the United States, which possesses the world’s largest economy.
Trump‘s administration has not provided tariffs collection data since December 14. But Penn-Wharton Budget Model economists estimated on Friday that the amount collected in Trump‘s tariffs based on IEEPA stood at more than $175 billion. And that amount likely would need to be refunded with a Supreme Court ruling against the IEEPA-based tariffs.
POWERS OF CONGRESS
The U.S. Constitution grants Congress, not the president, the authority to issue taxes and tariffs. But Trump instead turned to a statutory authority by invoking IEEPA to impose the tariffs on nearly every U.S. trading partner without the approval of Congress. Trump has imposed some additional tariffs under other laws that are not at issue in this case. Based on government data from October to mid-December, those represent about third of the revenue from Trump-imposed tariffs.
IEEPA lets a president regulate commerce in a national emergency. Trump became the first president to use IEEPA to impose tariffs, one of the many ways he has aggressively pushed the boundaries of executive authority since he returned to office in areas as varied as his crackdown on immigration, the firing of federal agency officials, domestic military deployments and military operations overseas.
Kavanaugh, who also was appointed by Trump during his first term as president, in a written dissent said that IEEPA’s text, as well as history and prior Supreme Court rulings supported the Trump administration’s position.
“Like quotas and embargoes, tariffs are a traditional and common tool to regulate importation,” wrote Kavanaugh, whose dissenting opinion was joined by Thomas and Alito.
“The tariffs at issue here may or may not be wise policy,” Kavanaugh added. “But as a matter of text, history, and precedent, they are clearly lawful. I respectfully dissent.”
Kavanaugh also said the decision could impact current trade deals.
“Because IEEPA tariffs have helped facilitate trade deals worth trillions of dollars—including with foreign nations from China to the United Kingdom to Japan, the Court’s decision could generate uncertainty regarding various trade agreements,” Kavanaugh wrote.
Trump described the tariffs as vital for U.S. economic security, predicting that the country would be defenseless and ruined without them. Trump in November told reporters that without his tariffs “the rest of the world would laugh at us because they’ve used tariffs against us for years and took advantage of us.” Trump said the United States was abused by other countries including China, the second-largest economy.
Candace Laing, president and CEO of the Canadian Chamber of Commerce, said the decision was a legal ruling, not a reset of U.S. trade policy.
“Canada should prepare for new, blunter mechanisms to be used to reassert trade pressure, potentially with broader and more disruptive effects,” Laing said in a statement.
After the Supreme Court heard arguments in the case in November, Trump said he would consider alternatives if it ruled against him on tariffs, telling reporters that “we’ll have to develop a ‘game two’ plan.”
Treasury Secretary Scott Bessent and other administration officials said the United States would invoke other legal justifications to retain as many of Trump‘s tariffs as possible. Among others, these include a statutory provision that permits tariffs on imported goods that threaten U.S. national security and another that allows retaliatory actions including tariffs against trading partners that the Office of the U.S. Trade Representative determines have used unfair trade practices against American exporters.
None of these alternatives offered the flexibility and blunt-force dynamics that IEEPA provided Trump, and may not be able to replicate the full scope of his tariffs in a timely fashion.
Senate Democratic Leader Chuck Schumer called the decision a “victory for the wallets of every American consumer,” adding: Trump‘s illegal tariff tax just collapsed. He tried to govern by decree and stuck families with the bill. Enough chaos. End the trade war.”
Democratic Senator Elizabeth Warren said the ruling left many questions unanswered.
“The Court has struck down these destructive tariffs, but there is no legal mechanism for consumers and many small businesses to recoup the money they have already paid. Instead, giant corporations with their armies of lawyers and lobbyists can sue for tariff refunds, then just pocket the money for themselves,” Warren said.
INCREASED LEVERAGE
Trump‘s ability to impose tariffs instantaneously on any trading partner’s goods under the aegis of some form of declared national emergency raised his leverage over other countries. It brought world leaders scrambling to Washington to secure trade deals that often included pledges of billions of dollars in investments or other offers of enhanced market access for U.S. companies.
But Trump‘s use of tariffs as a cudgel in U.S. foreign policy has succeeded in antagonizing numerous countries, including those long considered among the closest U.S. allies.
IEEPA historically had been used for imposing sanctions on enemies or freezing their assets, not to impose tariffs. The law does not specifically mention the word tariffs. Trump‘s Justice Department had argued that IEEPA allows tariffs by authorizing the president to “regulate” imports to address emergencies.
The Congressional Budget Office has estimated that if all current tariffs stay in place, including the IEEPA-based duties, they would generate about $300 billion annually over the next decade.
Total U.S. net customs duty receipts reached a record $195 billion in fiscal 2025, which ended on September 30, according to U.S. Treasury Department data.
On April 2 on a date Trump labeled “Liberation Day,” the president announced what he called “reciprocal” tariffs on goods imported from most U.S. trading partners, invoking IEEPA to address what he called a national emergency related to U.S. trade deficits, though the United States already had run trade deficits for decades.
In February and March of 2025, Trump invoked IEEPA to impose tariffs on China, Canada and Mexico, citing the trafficking of the often-abused painkiller fentanyl and illicit drugs into the United States as a national emergency.
EXTRACTING CONCESSIONS
Trump has wielded his tariffs to extract concessions and renegotiate trade deals, and as a weapon to punish countries that draw his ire on non-trade political matters. These have ranged from Brazil’s prosecution of former president Jair Bolsonaro, India’s purchases of Russian oil that help fund Russia’s war in Ukraine, and an anti-tariffs ad by Canada’s Ontario province.
IEEPA was passed by Congress and signed by Democratic President Jimmy Carter. In passing the measure, Congress placed additional limits on the president’s authority compared to a predecessor law.
The cases on tariffs before the justices involved three lawsuits.
The Washington-based U.S. Court of Appeals for the Federal Circuit sided with five small businesses that import goods in one challenge, and the states of Arizona, Colorado, Connecticut, Delaware, Illinois, Maine, Minnesota, Nevada, New Mexico, New York, Oregon and Vermont in another.
Separately, a Washington-based federal judge sided with a family-owned toy company called Learning Resources.
Lawmakers are rallying against President Donald Trump’s tariffs a week before the Supreme Court is scheduled to hear oral arguments over the legality of the newly imposed duties.
A bipartisan group of 207 lawmakers last week submitted an amicus brief arguing that Trump does not have the authority to implement such sweeping tariffs under the the International Emergency Economic Powers Act, a 1977 law Trump has used to justify his policies.
“The Administration’s interpretation of IEEPA would effectively nullify the guardrails set forth in every statute in which Congress expressly granted the President limited tariff authority — a result Congress did not intend,” the lawmakers argue in their brief.
They further argue that it is the Constitution that gives Congress the power to implement tariffs, not the president. Thirty-six senators appeared on the brief, along with 171 House Democrats. Sen. Lisa Murkowski (R-AL) was the only Republican to sign off on the brief.
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The brief is the latest in a lawsuit initially filed by Rick Woldenberg, the CEO of Learning Resources, a Vernon Hills, Illinois-based educational toy company that expected 2025 would be its best year on record. Then Trump’s tariffs hit. Woldenberg, who expects sales to dip by 25 percent this year after the new, skyrocketing duties took effect, wants to recoup the tariffs he, along with thousands of other companies, have paid so far this year.
A lower court ruled in August that Trump’s tariffs are illegal, setting off a high-stakes showdown before the Supreme Court, which will settle the matter at the highest judicial level. An early October survey from JPMorgan shows that trade experts believe the odds could be as high as 80 percent that the Supreme Court will rule against Trump’s tariff policies.
“While the sitting three liberal justices are expected to oppose IEEPA tariffs, Chief Justice John Roberts and Justice Barrett–both with pro-business leanings — may also side against,” the survey said.
The Senate is deliberating three different bills that seek to eliminate Trump’s tariffs in some capacity, though passage is unlikely on any front.
Meanwhile, Trump continued escalating his tariff rhetoric, most recently slapping Canada with an additional 10 percent tariff after a Canadian-backed television advertisement ran during a World Series game. The ad, paid for by Ontario, Canada’s most populous province, critiqued Trump’s tariff policies, using then-President Ronald Reagan’s 1987 remarks to extoll the benefits of free trade, decrying what happens when protectionist tariffs are imposed: “Then the worst happens: Markets shrink and collapse; businesses and industries shut down; and millions of people lose their jobs,” he said.
Today, the Supreme Court decided to review V.O.S. Selections, Inc. v. Trump, our case challenging President Trump’s “Liberation Day” tariffs. The case was filed by the Liberty Justice Center and myself on behalf of five small businesses harmed by the tariffs. It is consolidated with a similar suit filed by twelve state governments, led by the state of Oregon. Both challenge massive tariffs Trump has imposed using his supposed authority under the International Emergency Economic Powers Act of 1977 (IEEPA), and both will now be heard on the same accelerated schedule. The Supreme Court also decided to hear Learning Resources v. Trump, a case challenging many of the same tariffs, filed by two importers in a different federal court.
We, the twelve states, and the Learning Resources plaintiffs all prevailed in the lower courts, and I hope the Supreme Court will also recognize the IEEPA tariffs are illegal for a variety of reasons. Fundamentally, these cases come down to whether the president has virtually unlimited power to impose taxes in the form of tariffs on the American people, much like an absolute monarch. The Framers of the Constitution deliberately denied the executive the kind of unbridled tax authority claimed by power-grabbing English kings, like Charles I.
The Court’s order is short. For convenience, I reprint it here in full:
LEARNING RESOURCES, INC., ET AL. V. TRUMP, PRESIDENT OF U.S., ET AL. [24-1287] TRUMP, PRESIDENT OF U.S., ET AL. V. V.O.S. SELECTIONS, INC., ET AL. [25-250]
The petition for a writ of certiorari before judgment in No. 24-1287 is granted. The motion to expedite and the petition for a writ of certiorari in No. 25-250 are granted. The cases are consolidated, and a total of one hour is allotted for oral argument. Respondents in No. 24-1287 and petitioners in No. 25-250 shall file an opening brief on the merits on or before Friday, September 19, 2025. Any amicus curiae briefs in support or in support of neither party shall be filed on or before Tuesday, September 23, 2025. Petitioners in No. 24-1287 and respondents in No. 25-250 shall file response briefs on the merits on or before Monday, October 20, 2025. Any amicus curiae briefs in support shall be filed on or before Friday, October 24, 2025. A reply brief shall be filed by Thursday, October 30, 2025. The cases will be set for argument in the first week of the November 2025 argument session.
The Liberty Justice Center has issued a statement about the order, which I reprint below. No one will be surprised that I agree with it! Here it is:
Today, the Supreme Court granted the government’s expedited request for Supreme Court review (writ of certiorari) in V.O.S. Selections, Inc. v. Trump, agreeing to review whether the Trump Administration’s “Liberation Day” tariffs exceed the President’s legal and constitutional authority. Given the importance of the issues and the need for a prompt resolution, the Liberty Justice Center agreed to the government’s request.
The Liberty Justice Center, along with legal scholar Ilya Somin, filed this case on April 14 in the U.S. Court of International Trade (CIT) on behalf of five American small businesses harmed by the tariffs. The CIT held that the International Emergency Economic Powers Act, or IEEPA, does not give the President unlimited unilateral authority to impose tariffs on the American people whenever he wants, at whatever level he wants, for whatever countries and products he wants, and for as long as he wants.
The government appealed to the U.S. Court of Appeals for the Federal Circuit, where the Liberty Justice Center was joined by leading appellate lawyers and constitutional scholars, Judge Michael W. McConnell and Neal Katyal. And on August 29, in a 7–4 decision, the Federal Circuit affirmed the CIT’s decision, holding that IEEPA does not authorize the President’s so-called “Liberation Day” tariffs. The Supreme Court will now decide whether to affirm those rulings.
Recognizing the urgency of the matter, the Supreme Court has now set this case on an expedited schedule, with oral argument to take place the first week of November.
“We are confident that the Supreme Court, like the CIT and the Federal Circuit, will recognize that the President does not have unilateral tariff power under IEEPA,” said Jeffrey Schwab, Senior Counsel and Director of Litigation at the Liberty Justice Center. “Congress, not the President alone, has the constitutional power to impose tariffs.”
The issues in the case are covered in much greater detail in our various legal filings (see the Liberty Justice Center site for a compilation), and in my earlier writings about this litigation.
Earlier this week, the Trump administration filed a petition for certiorari urging the Supreme Court to review the Federal Circuit decision in the case challenging the president’s massive “Liberation Day” tariffs, brought by the Liberty Justice Center and myself on behalf of five small businesses harmed by the tariffs (we were later joined by leading constitutional law scholars and Supreme Court litigators Neal Katyal and Michael McConnell). The government also submitted a motion for expedited review.
Today, we submitted a response to the petition, in which we agree the Supreme Court should hear the case and resolve it quickly, so as to put an end to the harm caused by the illegal tariffs as quickly as possible. We previously prevailed in the Court of International Trade, and on appeal in the Federal Circuit, and I hope the Supreme Court – should it take the case – will rule the same way.
Our case is consolidated with one filed by twelve state governments, led by the state of Oregon. Both challenge massive tariffs Trump has imposed under his supposed authority under the International Emergency Economic Powers Act of 1977 (IEEPA).
By now, this litigation has generated thousands of pages of briefs and other filings, and 176 pages of judicial opinions (if I have the count right). But underneath all the legalese, the central issue at stake is actually a simple one: Does our constitutional system give one man – the president – the power to impose any tariffs he wants, in any amount, on any nation, at any time, for any reason? If the answer is “no,” then the IEEPA tariffs are illegal.
And the answer should indeed be “no,” because the Framers of the Constitution carefully avoided giving the executive the kind of unbridled tax authority claimed by power-grabbing English monarchs, like Charles I. The president cannot wield monarchical power, and letting him do so is an affront to the rule of law.
We have presented an assortment of more detailed reasons why “no” is the right answer to the central question raised by this case: the fact that IEEPA doesn’t even mention tariffs and has never previously been used to impose them, that there is no “unusual and extraordinary threat” of the kind required to invoke IEEPA, the major questions doctrine, the constitutional nondelegation doctrine, and more. These points are covered in much greater detail in our various legal filings (see the Liberty Justice Center site for a compilation), and in some of my earlier writings about the litigation.
If the Supreme Court takes the case, there may well be many additional briefs, and other filings. Such materials are important. But it is also essential to remember the deeper principle underlying all the details: the president is not a king, and our Constitution does not grant him monarchical power.
Today the US Court of Appeals for the Federal Circuit ruled against President Trump’s massive “Liberation Day” tariffs in VOS Selections v. Trump, a case filed by Liberty Justice Center and myself on behalf of five small US businesses (we have since been joined by prominent Supreme Court litigators Michael McConnell and Neal Katyal; Neal skillfully conducted the oral argument before the Federal Circuit). The ruling also covers the case filed by twelve states led by Oregon; they prevailed, as well. On these points, a 7-4 majority of the en banc Federal Circuit affirmed the earlier trial court decision issued by the Court of International Trade. The court also remanded the issue of how broad the injunction against the tariffs should be to the Court of International Trade. That litigation is, however, postponed until October 14, to give the government a chance to ask the Supreme Court to review the case.
The majority concluded that the tariffs in question are not authorized by the International Emergency Economic Powers Act of 1977 (IEEPA), and that the major questions doctrine precludes interpreting IEEPA to give the president the virtually unlimited tariff authority he claims.
The majority, concurring and dissenting opinions, are 127 pages long, and I will not attempt to cover everything in them here. I will merely highlight some key points.
Here is an excerpt from the per curiam majority decision (issued in the name of all seven majority judges), explaining why IEEPA doesn’t authorize the tariffs imposed by the president:
[I]n each statute delegating tariff power to the President, Congress has provided specific substantive limitations and procedural guidelines to be followed in imposing any such tariffs. It seems unlikely that Congress intended, in enacting IEEPA, to depart from its past practice and grant the President unlimited authority to impose tariffs. The statute neither mentions tariffs (or any of its synonyms) nor has procedural safeguards that contain clear limits on the President’s power to impose tariffs….
[W]henever Congress intends to delegate to the President the authority to impose tariffs, it does so explicitly, either by using unequivocal terms like tariff and duty, or via an overall structure which makes clear that Congress is referring to tariffs. This is no surprise, as the core Congressional power to impose taxes such as tariffs is vested exclusively in the legislative branch by the Constitution; when Congress delegates this power in the first instance, it does so clearly and unambiguously…
Contrary to the Government’s assertion, the mere authorization to “regulate” does not in and of itself imply the authority to impose tariffs. The power to “regulate” has long been understood to be distinct from the power to “tax.” In fact, the Constitution vests these authorities in Congress separately. U.S. Const. art. I, § 8 cl. 1, 3; see also Gibbons v. Ogden, 22 U.S. 1, 201 (1824) (“It is, that all duties, imposts, and excises, shall be uniform. In a separate clause of the enumeration, the power to regulate commerce is given, as being entirely distinct from the right to levy taxes and imposts, and as being a new power, not before conferred. The constitution, then, considers these powers as substantive, and distinct from each other.”); Nat’l Fed’n. of Indep. Bus. v. Sebelius, 567 U.S. 519, 552, 567 (2012) (holding that the individual mandate provision of the Patient Protection and Affordable Care Act was a permissible exercise of Congress’s taxing power but exceeded Congress’s power to regulate commerce). While Congress may use its taxing power in a manner that has a regulatory effect,… the power to tax is not always incident to the power to regulate…
Upon declaring an emergency under IEEPA, a President may, in relevant part, “investigate, block during the pendency of an investigation, regulate, direct and compel, nullify, void, prevent or prohibit” the “importation or exportation of . . . any property in which any foreign country or a national thereof has any interest.” 50 U.S.C. § 1702(a)(1)(B). “Regulate” must be read in the context of these other verbs, none of which involve monetary actions or suggest the power to tax or impose tariffs…
The majority also emphasized that the government’s claim to unlimited tariff authority goes against the major questions doctrine:
The Government’s interpretation of IEEPA as providing the President power to impose unlimited tariffs also runs afoul of the major questions doctrine. See, e.g., Oral Arg.16at 19:28–19:39 (the Government stating “there is no limit on the cap of the tariff in IEEPA itself”). The Supreme Court has explained that the doctrine applies in “cases in which the ‘history and the breadth of the authority . . . asserted’” by the Government entails vast “economic and political significance.”West Virginia v. EPA, 597 U.S. 697, 721 (2022)…. In such cases, there may be a “‘reason to hesitate before concluding that Congress’ meant to confer suchauthority.”Id…. When the major questions doctrine is implicated, the Government must point to “clear congressional authorization” for that asserted power.Id.at 732….
The tariffs at issue in this case implicate the concerns animating the major questions doctrine as they are both “unheralded” and “transformative.” Id. at 722, 724; see also id. at 725 (“[J]ust as established practice may shed light on the extent of power conveyed by general statutory language, so the want of assertion of power by those who presumably would be alert to exercise it, is equally significant in determining whether such power was actually conferred.)” ….
Since IEEPA was promulgated almost fifty years ago, past presidents have invoked IEEPA frequently. But not once before has a President asserted his authority under IEEPA to impose tariffs on imports or adjust the rates thereof. Rather, presidents have typically invoked IEEPA to restrict financial transactions with specific countries or entities that the President has determined pose an acute threat to the country’s interests….
Additionally,… tariffs are a core Congressional power. The “basic and consequential tradeoffs” that are inherent in the President’s decision to mpose the Trafficking and Reciprocal Tariffs “are ones that Congress would likely have intended for itself.” Ne- braska, 600 U.S. at 506 (quoting West Virginia, 597 U.S. at 730). Moreover, the United States imports more than $4 trillion of goods annually; these imports account for 14 percent of the nation’s economy. J.A. 215. The Government itself has claimed that the Reciprocal Tariffs will “generate between $2.3 trillion and $3.3 trillion over the budget window….” The Executive’s use of tariffs qualifies as a decision of vast economic and political significance, so the Government must “point to clear congressional authorization” for its interpretation of IEEPA. West Virginia, 597 U.S. at 723…
For the reasons discussed above, we discern no clear congressional authorization by IEEPA for tariffs of the magnitude of the Reciprocal Tariffs and Trafficking Tariffs. Reading the phrase “regulate . . . importation” to include imposing these tariffs is “a wafer-thin reed on which to rest such sweeping power.” Ala. Ass’n of Realtors v. Dep’t of Health & Hum. Servs., 594 U.S. 758, 765 (2021)
The majority goes on to reject claims that the major questions doctrine does not apply to delegations to the president (their reasoning is similar to that which I outlined here). It also rejects the argument that the doctrine does not apply because tariffs are a “foreign affairs” power.
The majority did not address whether the government’s claim of unlimited tariff authority would also run afoul of the nondelegation doctrine, which limits the extent to which Congress can delegate legislative authority to the executive. But it does note the significance of the fact that tariffs are a “core congressional power.”
The majority explicitly chose not resolve the issue of whether IEEPA can be used to impose any tariffs at all. But their reasoning suggests either that such imposition is indeed categorically barred, or that any tariff authority that exists under IEEPA is strictly limited.
The concurring opinion, written by Judge Cunningham, on behalf of four judges goes further than the majority. It concludes that IEEPA does not authorize any tariffs at all. It also indicates that the sort of sweeping delegation of tariff authority claimed by the president here is precluded by the nondelegation doctrine, which which limits the extent to which Congress can delegate legislative power to the president, relying in part on the Supreme Court’s recent ruling in FCC v. Consumers’ Research (which was helpful to our case in a number of ways):
The Government’s interpretation of IEEPA would render it an unconstitutional delegation. Because taxation authority constitutionally rests with Congress, any delegation of that authority to the President must at least set out an intelligible principle that includes “both ‘the general policy’” that the President “must pursue and ‘the boundaries of [its] delegated authority.’” FCC v. Consumers’ Rsch., 145 S. Ct. 2482, 2497 (2025)… Similarly, Congress must “provide[ ] sufficient standards to enable both ‘the courts and the public [to] ascertain’” whether the President “has followed the law.” Id…. Because this is undoubtedly a case that “affect[s] the entire national economy,” the “‘guidance’ needed is greater . . . than when [Congress] addresses a narrow, technical issue.” Id…. For taxes, both “quantitative” and “qualitative limits on how much money” the President can raise are permissible, but it would “pose a constitutional problem” if the “statute gives the [executive branch] power, all on its own, to raise [a] hypothetical $5 trillion” with no “ceiling.” Id. at 2501–02.
The Government’s interpretation of IEEPA would be a functionally limitless delegation of Congressional taxation authority.
The majority did however vacate the trial court’s universal injunction against the tariffs, and remand the issue of the scope of the injunction to the trial court to determine how broad it should be, in light of the Supreme Court’s recent ruling restricting universal injunctions, in Trump v. CASA. We have a variety of arguments as to why a broad injunction is appropriate in this case, even after CASA (see relevant section of our brief).
The dissent by Judge Taranto, on behalf of himself and three other judges, largely accepts many of the government’s arguments. I won’t go over them in detail here, as this post is already too long. Obviously, I have responded to these arguments in some detail in previous writings, and our legal team also did so in our briefs.
The court has, for the moment, stayed its ruling until October 14, to give the government a chance to ask the Supreme Court to review the decision. We shall see what the justices choose to do.
