PRESIDENT TRUMP’S CONTROVERSIAL TARIFFS AT THE SUPREME COURT ON NOVEMBER 5TH—THE ISSUES AND POSSIBLE OUTCOMES
INTRODUCTION AND BACKGROUND
I have routinely in this Blog opined that the President has sought to utilize his Article II vested powers to protect national security in a variety of ways. In the realm of immigration enforcement, he has fulfilled a campaign promise to remove those who are here illegally and who benefited from Biden’s outright failure to enforce federal laws requiring their removal. In the realm of foreign policy, he has ordered strikes on Iran’s nuclear capabilities and engineered what is a fragile peace in the Gaza conflict, spawned by the inhuman depredations of Hamas on October 7th, 2023. On the day of his inauguration, President Trump set in motion a reevaluation of geopolitical relationships regarding trade and its relationship to the realities of transnational crime and new forms of terror and incursions into the United States. His declarations of “emergency’” have ignited concerns over the separation of powers and Article II overreach. His goals of onshoring manufacturing in areas critical to national security are part of the mix. Will his methodology withstand constitutional and statutory scrutiny? A case for the ages will be argued this week. Let’s explore the background that got it there.
The tariff impositions occurred in sequence after his January 20th, 2025, declaration of an emergency pursuant to Sections 201 and 301 of the National Emergencies Act, 50 U.S.C. Sections 1601-1651, wherein the President identified the presence of cartels, criminal gangs, and terrorists that have safe harbor in Mexico and that the harmful and lethal effects of drugs, human trafficking, and related criminal acts threatened the sovereignty and security of the United States. See Proclamation 10886. On February 1st, 2025, the President expanded the scope of that Proclamation to include China and Canada, whom he identified as failing to stop the flow of illicit drugs and their components from their countries to the United States. He particularly specified China’s geopolitical aims, in so many words, to look the other way while precursor chemicals, critical to the manufacture of fentanyl, flowed from China to Mexico. Those narcotics, then, are trafficked by cartels into our interior.
What resulted from these Proclamations was the issuance of what are now known as the “Trafficking Tariffs,” which involved additional duties on all articles that are products of China, Mexico, and Canada.
In April of 2025 the President imposed what are known as the “Reciprocal Tariffs,” a baseline 10 percent duty, and in some cases much more, on any country with which the United States has any significant trade relationship. These were based upon the threat to the national security and economy of the United States posed by “underlying conditions, including a lack of reciprocity in our bilateral trade relationships, disparate tariff rates and non-tariff barriers, and U.S. trading partners’ economic policies that suppress domestic wages and production.” See Executive Order 14257.
The claimed authority for this unprecedented and extraordinary adjustment to the Harmonized Tariff Schedule of the United States (HTSUS) sounded in constitutional Article II authority to direct foreign policy and relations, the International Emergency Economic Powers Act (IEEPA) 50 U.S.C. Section 1701, 1702, as well as the Trade Act of 1974, 19 U.S.C. Section 2483, 3 U.S.C. 301, and the National Emergency Act cited above (NEA).
Utilizing the effect of these newly adjusted and imposed duties, the President’s team has negotiated numerous trade agreements with affected countries and has adjusted those tariffs on a targeted basis. In fact, some tariffs were suspended by order of July 7th, 2025, for a period of 90 days to allow negotiations to level the trading playing field. These have been largely successful and are in place. Duties in the tens of billions are in the Treasury. The future of the agreements and the collected duties depends upon the Supreme Court’s decision on the ultimate issues presented.
A group of small businesses on April 14th, 2025, sued the Administration in the Court of International Trade along with eleven states, claiming the economic impact of increased duties on their domestic businesses and citizens. The Court of International Trade (CIT) granted summary judgment without trial to the plaintiffs and the states, holding that both the Reciprocal Tariffs and the Trafficking Tariffs exceeded the President’s authority under the IEEPA and granted a permanent injunction against enforcement of the tariffs. An appeal by the President ensued, and the ruling was stayed by the Court of Appeals for the Federal Circuit pending the appeal. On August 29th, 2025, the Court of Appeals affirmed the findings of the CIT, holding that the IEEPA did not grant presidential authority to impose tariffs when it authorized “regulation” of imports by the President in the statute itself.
A stay is in effect, and the United States Supreme Court granted the government’s petition for review. The case was placed on an expedited review schedule, and after briefing, arguments are set for November 5, 2025. The issues are as certified:
- 1. Whether the International Emergency Economic Powers Act (IEEPA) authorizes the tariffs imposed by President Trump pursuant to the national emergencies declared or continued in Proclamation 10886 and Executive Orders 14157, 14193, 14194, 14195, and 14257, as amended;
- 2. If IEEPA authorizes the tariffs, whether the statute unconstitutionally delegates legislative authority to the President
The major raft of IEEPA tariffs was authorized by President Trump with the following findings:
“Underlying conditions, including a lack of reciprocity in our bilateral trade relationships, disparate tariff rates and non-tariff barriers, and U.S. trading partners’ economic policies that suppress domestic wages and consumption, as indicated by large and persistent U.S. goods trade deficits, constitute an unusual and extraordinary threat to the national security and economy of the United States. That threat has its source in whole or substantial part outside the United States in the domestic economic policies of key trading partners and structural imbalances in the global trading system…. Trading partners have repeatedly blocked multilateral and plurilateral solutions, including in the context of new rounds of tariff negotiations and efforts to discipline non-tariff barriers.”
The crux of the issue is if these pronouncements, as well as the Proclamation’s statement of harm from increased cartel activity, trigger the emergency authority that Congress delegated to the President, and further, was Congress aware from previous history that trade and policy could constitute such an emergency permitting the tariff regimes?
The stay has seen a continuation of trade negotiations and additional agreements as business continues. As recently as last week, China and the United States have apparently resolved trade disagreements and reinstituted trade in soybeans and rare earth minerals refined to usable status. South Korea and Japan have also come to the table, and agreements have led to manufacturing commitments in the United States and a more level playing field. European markets have opened to American products as well as those in Asian countries that had practiced some forms of protectionism, including Japan. The ramifications of this ruling are significant not only in the area of Article II authority regarding foreign relations and the economy, but whether there is a delegation of authority to the President under the IEEPA to “regulate” imports as provided in the statute and to what extent any President can declare “emergencies” that sound in long-standing trade realities and drug and crime incursions into the United States that have existed for years. Are “emergencies” properly defined as a guardrail to true authoritarian Executive Orders in the relevant statutes? These issues will be before the Court this week. Let’s unpack the Court of Appeals ruling that is before the Supreme Court.
A DIVIDED COURT OF APPEALS AFFIRMED THE FINDING OF THE CIT AND SET THE STAGE FOR THE SUPREME COURT ARGUMENTS ON NOVEMBER 5TH
The Court of Appeals for the Federal Circuit upheld the findings of the CIT but vacated the permanent injunction and remanded the case for consideration of the criteria for such an injunction. The Supreme Court may also remand, but for reasons I suggest later on. Nonetheless, given the core finding that the tariffs were unlawfully imposed, the Administration appealed the entire ruling immediately. The core reasons for the ruling of the Federal Circuit in a 7-4 decision with a strong dissenting opinion by four Judges are distilled below. First, the Court held that tariffs are essentially taxes and that power is an Article I Congressional power, stating:
“The Constitution grants Congress the power to ‘lay and collect Taxes, Duties, Imposts and Excises’ and to ‘regulate Commerce with foreign Nations.’ U.S. Const. art. I, § 8, cl. 1, 3. Tariffs are a tax, and the Framers of the Constitution expressly contemplated the exclusive grant of taxing power to the legislative branch; when Patrick Henry expressed concern that the President ‘may easily become king,’ 3 Debates in the Several State Conventions 58 (Jonathan Elliot ed., 1836), James Madison replied that this would not occur because ‘[t]he purse is in the hands of the representatives of the people.’”
The Court also looked at the operative language of the IEEPA and found persuasive the lack of reference to tariffs or even the word “tariffs” specifically;
“IEEPA provides that, after declaring a national emergency pursuant to the NEA, the President may ‘investigate, block during the pendency of an investigation, regulate, direct and compel, nullify, void, prevent or prohibit, any … 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). Notably, IEEPA does not use the words ‘tariffs’ or ‘duties,’ nor any similar terms like ‘customs,’ ‘taxes,’ or ‘imposts.’ IEEPA also does not have a residual clause granting the President powers beyond those which are explicitly listed.”
Finally, among other reasons, the Court found that “regulation” as used in the statute does not delegate authority to the Chief Executive to impose import duties;
“IEEPA authorizes the President to take certain actions in response to a declared national emergency arising from an ‘unusual and extraordinary threat … to the national security, foreign policy, or economy of the United States.’ 50 U.S.C. § 1701(a). Upon the declaration of such an emergency, IEEPA authorizes the President to investigate, block during the pendency of an investigation, regulate, direct and compel, nullify, void, prevent, or prohibit any acquisition, holding, withholding, use, transfer, withdrawal, transportation, importation or exportation of, or dealing in, or exercising any right, power, or privilege with respect to, or transactions involving, any property in which any foreign country or a national thereof has any interest by any person, or with respect to any property, subject to the jurisdiction of the United States.
The statute bestows significant authority on the President to undertake a number of actions in response to a declared national emergency, but none of these actions explicitly include the power to impose tariffs, duties, or the like, or the power to tax. The Government locates that authority within the term ‘regulate … importation,’ but it is far from plain that ‘regulate … importation,’ in this context, includes the power to impose the tariffs at issue in this case. In 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 does it have procedural safeguards that contain clear limits on the President’s power to impose tariffs. Taken together, these other statutes indicate that whenever 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.”
In direct contrast, four judges strongly dissented and would have upheld the tariff impositions and the declared emergencies as set forth in the President’s Executive Orders. The Judges looked at the plain meaning of the term “regulate” as used in the statute and wrote:
“Plaintiffs argue that ‘regulat[ing] … importation’ does not include imposing tariffs. We disagree.
Definitions of the term ‘regulate’ provide broad understandings of the term’s ordinary meaning: to ‘fix, establish or control; to adjust by rule, method, or established mode; to direct by rule or restriction; to subject to governing principles or laws.’ Black’s Law Dictionary 1156 (5th ed. 1979); see also [**99] Webster’s Third New International Dictionary 1913 (1976) (defining ‘regulate’ as ‘to govern or direct according to rule’ and ‘to bring under the control of law or constituted authority’). As the government states in its opening brief, ‘[i]mposing tariffs on imports is clearly a way of “control[ling]” imports (Black’s)’; ‘govern[ing] or direct[ing]’ them ‘according to rule’ (Webster’s); ‘adjust[ing]’ them ‘by rule, method, or established mode’ (Black’s); or, more generally ‘subject[ing]’ them ‘to governing principles or laws.’ We know of no persuasive basis for thinking that Congress wanted to deny the President use of the tariffing tool, a common regulatory tool, to address the threats covered by the IEEPA.”
Other issues framed by the dissent that will be argued in the Supreme Court are
- The broad delegation of authority to the President set forth in the IEEPA is inextricably intertwined with the President’s foreign relations and foreign policy exclusive responsibilities, and the major questions doctrine would not be applicable in this distinct area;
- The major questions doctrine would prohibit broad delegations of power without clear and unambiguous language, however, in conditions of emergency and given the foreign policy powers of the Executive, the doctrine would not bar the delegation of tariff authority to the President in this instance;
- Similarly, the delegation of tariff authority to the President under extraordinary and emergency conditions is not an unconstitutional delegation of legislative authority by Congress to the President; it is the President being given the broad Article II foreign affairs authority he already possesses in this unique sphere.
MY VIEW OF A PROBABLE OUTCOME
The political implications of a broad ruling striking down both the Trafficking and Reciprocal Tariffs are significant. Months of negotiations and the forging of agreements might be in jeopardy unless the Court crafts some exceptions. The fate of billions collected in duties would also be uncertain, and the notion of refunds to foreign clients is daunting at best. On the other hand, Presidential declarations of emergency are to be viewed with the skepticism necessary to prevent the harm that the Founders sought might flow from an unchecked Executive or Legislative Branch. I see a procedural route that might at least allow for a factual development of the record and a remand of the proceedings to the lower court. Remember, in the CIT summary judgement was granted pursuant to Rule 56, which is identical to Rule 56 in the Federal Rules of Civil Procedure—that means, in lay terms, that the issues were so clear AS A MATTER OF LAW AND FACT that there was no material dispute as to any material fact, and therefore judgement would be granted to the moving party essentially without a trial on ALL issues. This is a drastic remedy, and the Supreme Court may zero in on that and, as pointed out by my colleague Ilya Shapiro, may define the terms “emergency,” “unusual and extraordinary threat,” and/or “property in which any foreign country has any interest,” as well as what is included in the term “regulate,” all as used in the IEEPA, and send the case back for a full retrial on those standards. Judgment without a trial, either with a jury as is allowed in the CIT or by the Court sitting without a jury, is not favored. Whether or not that issue was preserved by the Government, it may well get the Courts’ attention in the interests of justice. With the delay caused by remand and retrial, the tariffs may revert to pre-emergency levels, and agreements could be held to moot the issue, as both trading parties at arm’s length will have negotiated a new relationship going forward. The Court can avoid the ultimate issue for the time being and see what transpires on remand.
Finally, the Court can hold that tariff authority has properly been delegated, as the Executive would be wielding powers already vested to engage in foreign relations and validate the Trafficking Tariffs and invalidate the Reciprocal Tariffs or vice versa. The fact that the President has broad emergency authority does not mean that the Court must defer when the predicate as Proclaimed by the President does not establish an extraordinary state of emergency or unusual circumstances warranting such a broad exercise of authority with significant domestic consequences.
CONCLUSION
The arguments will set the stage for a significant ruling that examines the delegation of authority by Congress and whether separation of powers between Articles I and II could create a situation wherein the IEEPA is declared unconstitutional. The case provides a mix of statutory interpretation and constitutionality issues all at the core of Supreme Court jurisdiction to “say what the law is.” I do believe that the Court will examine the simple procedural issues first and sidestep the substantive ones until it is satisfied the record is properly developed. In the interim some issues may be mooted. The safe step or the big step? We will see.
Mike Imprevento
November 3rd, 2025
