In a 6-3 decision Feb. 20, the Supreme Court struck down President Trump’s tariffs imposed under the International Emergency Economic Powers Act. The case will now return to the Court of International Trade, which will have to decide the appropriate remedy, including whether and how refunds should be processed.
What You Should Do
ST&R’s advice to importers continues to be that there is no need to file suit now before liquidations occur to preserve their rights to potential IEEPA tariff refunds. In addition, because it is still uncertain whether protests will ultimately be required and whether U.S. Customs and Border Protection will refund IEEPA tariffs through protests without the need for litigation, we still advise importers to protest liquidations to ensure the availability of refunds.
ST&R will conduct a webinar Feb. 26 to review the court’s decision, what comes next for importers, and possible replacements for IEEPA tariffs. Click here for more information or to register to attend.
What the Decision Said
The majority opinion framed the main question in this case as whether the statutory provision allowing the president to “regulate importation” under IEEPA includes the authority to impose tariffs. Reviewing the statutory context, the court emphasized that IEEPA has historically been used to restrict transactions—such as freezing assets or banning certain imports and exports—rather than adjusting tariff rates. It also noted that Congress has enacted numerous trade statutes that grant tariff‑setting authority in explicit, limited circumstances, suggesting that IEEPA was never intended to serve as a broad tariff power. The court also found that reading IEEPA to authorize unlimited tariffs would upset the balance of congressional control over foreign commerce.
Further, the court rejected the government’s argument that emergencies justify expanding presidential authority in this context. Although IEEPA gives the president flexibility when responding to extraordinary threats, the court held that it does not override clear structural limits on tariff authority. Because nothing in the statutory text suggested that Congress intended to delegate such sweeping power, the court concluded that the president’s tariff proclamations exceeded his statutory authority. As such, the court declined to address whether the tariffs also violated the non-delegation doctrine.
Accordingly, the majority held that IEEPA does not authorize the tariffs imposed by President Trump, effectively invalidating all executive orders imposing tariffs under IEEPA.
Several justices filed separate opinions. Justice Gorsuch concurred, emphasizing his agreement with the majority’s conclusion that IEEPA does not authorize presidential tariff‑setting but criticizing other members of the court for not applying the major questions doctrine with full force to the IEEPA tariffs. Justice Kagan, joined by justices Sotomayor and Jackson, also concurred, reasoning that the court could strike down the tariffs without relying on the major questions doctrine at all. Jackson also concurred separately, noting her preference to use legislative history to interpret IEEPA.
Justice Kavanaugh, joined by justices Thomas and Alito, dissented. Kavanaugh said he would have upheld the tariffs because he believed IEEPA’s plain language, together with the historical precedent of tariffs imposed under IEEPA’s predecessor statute, provided the president the authority to impose tariffs.
Notably, Kavanaugh also explained that the majority’s decision “might not substantially constrain a President’s ability to order tariffs going forward” because “numerous other federal statutes authorize the President to impose tariffs and might justify most (if not all) of the tariffs at issue in this case—albeit perhaps with a few additional procedural steps that IEEPA, as an emergency statute, does not require.” Such statutes include the Trade Expansion Act of 1962 (Section 232), the Trade Act of 1974 (sections 122, 201, and 301), and the Tariff Act of 1930 (Section 338).
(As of press time President Trump had declared his intention to issue, but had not yet signed, an executive order imposing a global 10 percent tariff under Section 122, which by law may only remain in effect for 150 days unless Congress approves an extension.)
The case will now return to the CAFC and then the CIT. The CAFC had already partly vacated the CIT’s decision because it had erroneously issued a universal injunction. Now the CIT will have to decide the appropriate remedy for the now-invalidated tariffs, including whether and how refunds should be processed.
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