SCOTUS Will Hear Cases on IEEPA Tariffs, Sets Argument for Early November
The Supreme Court on Sept. 9 agreed to hear two cases on the legality of tariffs imposed under the International Emergency Economic Powers Act and to do so on an expedited basis. The court set a briefing schedule that would conclude by Oct. 30 and set argument for the first week of November (Donald J. Trump v. V.O.S. Selections, U.S. 25-250) (Learning Resources v. Donald J. Trump, U.S. 24-1287).
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The order also consolidated two separate cases on some of President Donald Trump's tariffs. One case, V.O.S. Selections v. Donald J. Trump, is fully before the court on the merits following the U.S. Court of Appeals for the Federal Circuit's decision finding the reciprocal tariffs and tariffs on China, Canada and Mexico to combat the flow of fentanyl were issued in violation of the president's authority under IEEPA (see 2508290073).
The second case, Learning Resources v. Donald J. Trump, is pending before the U.S. Court of Appeals for the D.C. Circuit and was set for a Sept. 30 oral argument date. The plaintiffs in that suit asked the high court for review before judgment solely on whether IEEPA categorically allows for tariffs (see 2506200018).
Under the Supreme Court's briefing schedule, the government will file its opening brief on or before Sept. 19, and any amicus briefs in support of the U.S. "or in support of neither party" are due by Sept. 23. The plaintiffs -- comprising five importers represented by the Liberty Justice Center, 12 U.S. states led by Oregon and two importers represented by Akin -- will then file their reply by Oct. 20. Any amicus briefs in support of the plaintiffs are due by Oct. 24. Finally, the government's reply is due by Oct. 30.
Thus far, each court to have considered Trump's IEEPA tariffs on their merits has found them to be a violation of the statute. Most recently, the Federal Circuit found IEEPA to not convey unbounded tariff authority, finding the reciprocal and fentanyl tariffs to exceed supposed limits found in the tariff authority conveyed by IEEPA. The U.S. District Court for the District of Columbia, meanwhile, said IEEPA doesn't confer any tariff authority whatsoever.
The decision to take up the case comes just one day after the 12 U.S. states challenging the tariffs responded to the government's petition for writ of certiorari. In the response, the states previewed the arguments they will make before the high court, including the claim that IEEPA, which lets the president "regulate ... importation," doesn't include the power to impose tariffs.
The U.S. "cannot identify any other statute in the United States Code that uses the word 'regulate' to authorize taxes or tariffs," the brief said. "Not one." The states added that even if "regulate" could mean "tax" in some contexts, "principles of statutory construction like the major questions doctrine and constitutional avoidance confirm that it does not in this context."
While the U.S. said the Federal Circuit's decision is "textually incoherent" since it "leaves open the possibility that IEEPA would allow more modest tariffs," the states said the high court could find that IEEPA categorically doesn't allow for any tariffs. "But this Court need not decide that question to affirm the majority’s narrower but still textually coherent holding," the brief said. Likening the term "regulate" to the term "modify" interpreted by the Supreme Court to mean "modest" rather than transformational adjustments, the states said the term "connotes at most modest changes to the tariff schedule, but not unlimited authority to rewrite it."
The CAFC ruling "might allow revenue-raising measures in edge cases, but this case is not close: Petitioners have taxed, not regulated," the states said.
Alternatively, the states laid out three different grounds on which the Supreme Court can affirm the Federal Circuit. First, the authority conferred in IEEPA doesn't convey the power to impose the reciprocal tariffs in light of the passage of Section 122, which lets the president impose tariffs to address a balance-of-payments crisis, the brief said. Second, the reciprocal tariffs "also violate IEEPA’s separate requirement that its powers be used only to deal with an 'unusual and extraordinary threat,'" the states argued. Lastly, the tariffs on China, Canada and Mexico "violate IEEPA’s requirement that emergency economic powers 'may only be exercised to deal with' certain threats and not 'for any other purpose,'" the brief said.
Supporting the states were various amici, led by Advancing American Freedom, which argued that the Trump administration's interpretation of IEEPA would violate the nondelegation doctrine, the power to impose tariffs is a "core" legislative power, and the "original meaning of the Constitution prohibits congressional delegation of legislative power."