The court said that all these duties could stay in place through October 14—giving time for the White House to appeal the ruling—and the order’s enforcement will remain suspended until the Supreme Court rules on the case or declines to hear a challenge. On Wednesday night, the White House petitioned the Supreme Court to take up the case and hear arguments by early November. Sauer justified the urgency by writing the Appeals Court ruling “casts a pall of uncertainty upon ongoing foreign negotiations that the President has been pursuing through tariffs over the past five months, jeopardizing both already negotiated framework deals and ongoing negotiations.”
The Supreme Court is likely to take up the case because, as Brookings Institution fellow and former diplomat Scott Anderson told TMD, “when the executive branch asks the Supreme Court to weigh in on a national security or foreign relations case, the Supreme Court always does.”
When Trump enacted his tariffs, he claimed he had authority to do so under the International Emergency Economic Powers Act (IEEPA). Passed by Congress in 1977, the law states that during a declared national emergency, the president may “regulate … importation.”
Congress passed this as part of post-Watergate reforms limiting presidential emergency powers, and presidents generally cite their authority under IEEPA to issue expedited sanctions against foreign actors. Indeed, every president since the law’s passage—from former President Jimmy Carter to Trump—has issued sanctions through IEEPA on several occasions, including to block the sale of imports, bar access to U.S. financial institutions and markets, prevent certain foreign governments from acquiring U.S. property, and deny visas. IEEPA actions are not required to be published in the Federal Register to seek public comment, an often time-consuming process. As such, Anderson said, “Almost all global sanctions are rooted back in IEEPA.”
When litigating challenges to sanctions enacted through IEEPA, courts have generally ruled that national security concerns in specific time-sensitive scenarios warrant decisive decision-making. “In other contexts … we’ve seen lots of litigation around IEEPA,” Anderson explained. But with sanctions, courts have usually been pretty broadly deferential to the executive branch in how they interpret and apply it. And the Trump administration knows this.”
But do the president’s powers through IEEPA extend to tariff power? Lawyers for the Liberty Justice Center—who brought the original case to CIT on behalf of five small businesses—argued that Congress clearly had no intention of giving away its constitutional authority to “lay and collect Taxes, Duties, Imposts and Excises” to the president, as the law’s text makes no direct mention of tariffs or taxation. They also note that no other president has ever attempted to levy duties through the law.
Beyond the CIT ruling, which stated that IEEPA does not greenlight the president “to regulate importation by means of tariffs,” courts have not yet ruled on this question. But in a concurring opinion at the appeals court, four judges in the majority wrote that they did not interpret IEEPA as allowing the president to enact any tariffs. “One group of four judges would have held that IEEPA … simply doesn’t authorize tariffs,” regardless of whether the national emergency is justified, Duke University law professor Timothy Meyer told TMD. “The split among the majority, to me, suggests that this scope of tariff authority under IEEPA remains unresolved.”
Under the major questions doctrine, the Supreme Court has also restrained the executive branch from assuming sweeping power constitutionally reserved for Congress, which, as Anderson explained, requires “very specific and considered authorization to give any agency such broad, ranging authority.” In the 2022 case West Virginia v. Environmental Protection Agency, the Supreme Court’s majority held that courts should “hesitate before concluding that Congress meant to confer such authority.”
“The government’s argument is that the term ‘regulates’ includes the power to tax, and, if you can regulate importation, that’s the power to tax imports or impose tariffs,” Meyer said. Still, he noted that the administration’s interpretation takes some bold and unprecedented leaps: “The word ‘regulate’ appears in lots of statutes, and as far as anyone can tell, outside of this context, nobody has ever suggested that the term ‘regulate’ includes the power to impose a tax.”
But even if the court approves some tariff levies enacted under IEEPA, perhaps in a moment of crisis, there’s the question of whether Trump’s declared emergencies—trade deficits and illicit fentanyl smuggling—clear the bar.
Congress passed IEEPA to ensure that during an international crisis, the president could take swift, decisive action. The law gives “the president extensive power, not unlimited power, but extensive power to deal with crises,” Kathleen Claussen, a Georgetown Law School professor and a former U.S. Trade Representative Office associate general counsel, explained to TMD. “When Congress passed the statute, the intent was that they could not foresee all the possibilities of what might come along, so it’s written in an intentionally broad way.”
The White House argues that, because of the threats posed by negative trade deficits with foreign nations and illicit fentanyl brought from Canada, China, and Mexico, tariffs can be used as diplomatic leverage to gain a trade deal favorable to Trump and to crack down on drug trafficking in countries where fentanyl is produced. “The federal government has used IEEPA to impose economic sanctions, trying to get countries to change their behavior in a number of different circumstances,” Meyer said. For example, Carter invoked sanctions on Iran under IEEPA in 1979 in response to the Iranian hostage crisis, and, more recently, former President Joe Biden enacted sanctions on Russia through the law following President Vladimir Putin’s invasion of Ukraine in 2022.
To the White House, Trump’s IEEPA tariffs are legally no different from those sanctions. Courts have given prior administrations leeway to act in response to national security concerns, so why would Trump not have the same power in foreign policy-related matters?
But it’s a tough argument to make. “Even if IEEPA did allow the president to impose tariffs in some circumstances, [the challengers] add, doing so requires a ‘national emergency,’ and the tariffs must address an ‘unusual and extraordinary threat’ to the ‘national security, foreign policy, or economy of the United States,’” Amy Howe recently wrote at SCOTUSblog. “But trade deficits have existed for decades and are hardly an emergency, the challengers emphasize.”
Similarly, the CIT panel ruled that fentanyl-related tariffs were illegal because there’s no indication that hiking up import duty rates reduces drug smuggling, and thereby “do not deal with the threats” cited by the administration.
The Supreme Court is almost sure to take up these questions, and—according to the rhetoric of the president and his advisers—the very continuance of the United States.
