By way of executive order, the Trump administration has imposed tariffs on its global trading partners under the International Emergency Economic Powers Act (“IEEPA”), which gives the president powers to deal with national emergencies stemming from “any unusual and extraordinary threat” that comes in whole or in large part from outside the United States. The tariffs have taken two forms: targeted tariffs against China, Mexico, and Canada relating to the importation of illegal narcotics (fentanyl) into the United States (though little evidence supports any such importation from Canada); and so-called “Reciprocal Tariffs” pertaining to perceived trade imbalances, which have been implemented as of August 7, 2025, against nearly all countries with any significant trade relationship with the United States, except as otherwise negotiated through bilateral trade deals with individual nations.
In V.O.S. Selections, Inc. v. United States, the Court of International Trade (“CIT”) combined challenges from various shipping importers and 12 states arguing that these tariffs are unconstitutional and violative of U.S. law, and that such tariffs require congressional approval. On May 28, 2025, the CIT ruled that IEEPA’s statutory authority for the president to “regulate . . . importation” does not extend to imposing unlimited tariffs under the Supreme Court’s major questions doctrine, which limits federal agencies from broadly construing their powers from vague or implied grants of authority, or the Trade Act, which limits tariffs imposed to respond to balance of payment problems to 15 percent and a maximum duration of 150 days. These tariffs also require an extensive investigation by the U.S. Trade Representative before implementation, which has not occurred. The CIT also ruled that Congress cannot delegate such unlimited power under the Constitution, which assigns Congress the exclusive powers to “lay and collect Taxes, Duties, Imposts and Excises,” and to “regulate Commerce with foreign Nations.” Quoting Supreme Court precedent addressing the nondelegation doctrine, the CIT noted that delegation of such authority, of course, is permitted “as long as Congress ‘lay[s] down by legislative act an intelligible principle to which the person or body authorized to [exercise that authority] is directed to conform,’” which means when Congress “meaningfully constrains” the president’s authority.
One authorized congressional mechanism to address tariff rates is the U.S. Harmonized Tariff Schedule (“HTSUS”) administered by the U.S International Trade Commission, which has the power to investigate tariff relations between the United States and foreign nations. Congress has also delegated certain trade authority to the president, but each delegation has made clear that Congress retains legislative power over the imposition of duties and foreign commerce. CIT discussed various delegations over the years under the Trade Expansion Act of 1962; the Trade Act of 1974; and amendments to the Trading with the Enemy Act (“TWEA”) during the Nixon years, which resulted in IEEPA; and the National Emergencies Act of 1976, which placed restrictions on declaring emergencies and requires the president to transmit to Congress a notification of a national emergency declaration. In this case, the President has declared several national emergencies since January 2025 and imposed tariffs to address each.
In addressing the trafficking tariffs, the CIT held that IEEPA’s authority to “regulate . . . importation” cannot be read broadly to allow the imposition of unbounded tariffs and under IEEPA such tariffs must “deal with the unusual and extraordinary threat with respect to which the national emergency has been declared” and not for any other purpose. Because the trafficking tariffs do not meet IEEPA’s conditions, the CIT held they exceed the statute’s scope.
With respect to the retaliatory tariffs, the government argued that “regulate . . . importation” derives from TWEA, which the courts found allowed tariffs in reliance upon that language. The CIT found any interpretation of IEEPA that delegates unlimited tariff authority is unconstitutional whether considered under the nondelegation doctrine, the major questions doctrine, or separation of powers principles. Specifically, CIT held that the words “regulation . . . importation” do not confer unlimited tariff authority, and that the congressional grant of authority under IEEPA is narrower than under TWEA. Congress passed IEEPA during the Vietnam War era when it looked to constrain the presidential exercise of broad economic powers without congressional review. IEEPA served to limit TWEA, not continue its grant of authority. Further, the Trade Act of 1974 limits the quantum and duration of any tariffs imposed to address balance of payment deficits, which fall under the non-emergency authorities of section 122 of the Act. Section 122 serves to “meaningfully constrain” the president’s authority under the nondelegation doctrine to which the CIT held the Trump administration must conform.
Among other arguments, the government relied upon the political-question doctrine to argue that the tariff controversy is nonjusticiable. That doctrine applies “where there is ‘a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it.’” The CIT found that the trafficking tariff executive orders presented a justiciable question of statutory construction and do not deal with an “unusual and extraordinary threat” as required by IEEPA.
The U.S. Federal Circuit Court of Appeals stayed enforcement of the CIT’s ruling on June 10, and held oral argument on July 31. During oral argument before the en banc court, the government argued per United States v. Yoshida International, Inc., that the president has the power to impose tariffs. In Yoshida, the Court of Customs and Patent Appeals held that President Nixon had the authority to impose a 10 percent import duty surcharge under TWEA’s authority to “regulate . . . importation.” The government argued before the Federal Circuit that Congress is presumed to have ratified Yoshida in its adoption of IEEPA two years later. The government’s counsel admitted that “we take all of Yoshida.” Amici counsel argued that “if you want to live by the sword of Yoshida, you’re going to die by the sword of Yoshida,” and then pointed out that the Yoshida court was not approving in advance any surcharge of a different nature or sanctioning the exercise of unlimited power, which would strike a blow to the Constitution. While approving the 10 percent import duty surcharge, Yoshida made clear that each presidential proclamation must be evaluated on its own facts and circumstances. In that case, the measure issued under TWEA was temporary, did not supplant the entire tariff scheme of Congress, and did not apply to all imports, but only those imports already subject to tariffs. Yet, despite such limitations, the Yoshida court recognized that there was a broad grant of authority under TWEA, and said: “[t]hough such a broad grant may be considered unwise, or even dangerous, should it come into the hands of an unscrupulous, rampant President, willing to declare an emergency when none exists, the wisdom of a congressional delegation is not for us to decide.” During argument in V.O.S. Selections, a number of the Court’s judges expressed concerns about the government’s position: it is the first time in 50 years that IEEPA has been used for tariffs; it would dislocate the entire trade relief framework enacted by Congress in numerous statutes; and it would permit unbounded authority to set tariff percentages. One judge noted that under Yoshida, the declaration of an emergency is not a talisman that allows the president to rewrite the tariff schedules, which would sound the death knell of the Constitution.
The government argued that for the Court to overturn the President’s actions, it must find that he violated IEEPA, which he did not. Further, the Court’s authority is limited to examining whether IEEPA authorizes tariffs (it does, according to the government, based upon Yoshida’s interpretation of the words “regulate . . . importation” under TWEA) and whether the limits imposed by IEEPA have been met (that is, the existence of a national emergency, which presents an unusual and extraordinary threat that emanates from outside the United States). The essential threat appears to be the collapse of U.S. manufacturing capability that affects national security (which at least one of the judges found alarming) brought on by persistent trade deficits that the administration contends has spiked over the past four years.
On August 29, 2025, the Federal Circuit affirmed the district court’s finding that the trafficking and Reciprocal Tariffs exceeded the President’s authority under IEEPA and its grant of declaratory relief that the executive orders are contrary to law. However, the Federal Circuit vacated the permanent injunction that universally enjoined enforcement of the tariffs and remanded the case to the CIT to reevaluate whether it comports with the standards outlined in the Supreme Court’s decision in Trump v. CASA, Inc., which limited a district court’s authority to impose nationwide injunctions, and the four factors that govern whether a permanent injunction is warranted set forth in the Supreme Court’s decision in eBay, Inc. v. MercExchange, L.L.C.
The Federal Circuit noted at the outset that a tariff is a tax and that the exclusive power to tax belongs to Congress. Tariffs were the primary means of taxation at the Republic’s founding and “setting policy was thus considered a core Congressional function.” The Court addressed how Congress enacted legislation establishing basic tariff schedules and in 1962 enacted the HTSUS, which gave the president authority to bring trade agreements to which the United States was a party in line with the HTSUS. However, the president’s authority to increase tariff rates was “cabined in various respects,” including limiting the authority to increase rates “by more than a certain percentage of the established statutory rate.” The Court addressed TWEA’s history and Yoshida International’s challenge to President Nixon’s temporary tariff surcharge thereunder to address a balance of payments deficit. The Court noted that Yoshida did not grant the President unlimited power to modify the HTSUS, but only the “limited temporary authority to impose tariffs” that do not exceed “Congressionally-approved tariff rates.” In 1976, Congress pared back TWEA under the National Emergencies Act and the president’s power thereunder. IEEPA followed in 1977 with no mention of tariffs, taxes, or duties or a residual clause that granted the president powers beyond those specifically granted. The Federal Circuit also addressed other statutory authority promulgated by Congress that authorized the president to impose or modify tariffs in certain circumstances, including the Trade Act of 1974, each of which includes “well-defined and substantive limitations.”
The Federal Circuit decided only one issue on appeal—whether IEEPA authorized the trafficking and Reciprocal Tariffs. The decision boiled down to whether the words “regulate . . . importation” authorize such tariffs. The Court addressed the Supreme Court’s decision in Federal Energy Admin. v. Algonquin SNG., Inc. in which the Court held that power to “adjust the imports” under section 232 of the Trade Expansion Act of 1962 allowed the President to impose import “license fees.” Yet, the Federal Circuit noted that it does not follow from Algonquin that IEEPA’s use of “regulate . . . importation” includes tariffs. The Court noted that in every case where Congress has authorized the president to impose tariffs, it did so explicitly, “either by using unequivocal terms like tariff or duty, or via an overall structure which makes clear that Congress is referring to tariffs.” Neither apply to IEEPA. The Court noted that the “power to ‘regulate’ has long been understood to be distinct from the power to ‘tax.’” For example, Congress has granted the Securities and Exchange Commission the power to regulate without delegating to it the power to impose tariffs.
The Federal Circuit noted that the government’s interpretation of IEEPA as granting the president the power to impose unlimited tariffs runs afoul of the major questions doctrine. “When the major questions doctrine is implicated, the Government must point to ‘clear congressional authorization’ for that asserted power.” Noting that no president in the past 50 years has invoked IEEPA to impose tariffs or adjust rates, the Court discerned “no clear congressional authorization by IEEPA for tariffs of the magnitude” of the trafficking and Reciprocal Tariffs.
The Federal Circuit addressed the government’s heavy reliance upon Yoshida II for the proposition that TWEA delegated the power to impose an import duty surcharge by employing the words “regulate . . . importation.” But the Court noted that the authority was limited in time, scope and amount. Even if Congress recognized Yoshida’s precedent at the time that it enacted IEEPA, “because Yoshida II was explicit in its view that an unbounded tariff authority would not be permitted, that understanding must be attributed to Congress as well.” In sum, the Federal Circuit held that the trafficking and Reciprocal Tariffs imposed by the Trump administration, “unbounded in scope, amount and duration,” exceed Yoshida II’s holding and are beyond the authority delegated to the president by IEEPA.
Four judges issued a concurring opinion to note their view that IEEPA does not grant the authority to impose any tariffs.
Four judges issued a dissenting opinion, which will provide grist for the mill whenever the case finally reaches the Supreme Court. They contend that Congress has provided tariff authority to the president in the realm of foreign affairs, the major questions doctrine does not call for a contrary result, and the plaintiffs have not shown on summary judgment that either group of tariffs fails to meet IEEPA’s preconditions for the exercise of presidential authority.
The dissent notes that IEEPA authorizes the president “by means of instructions, licenses or otherwise” to “regulate” the “importation” of “any property in which any foreign country or a national thereof has an interest.” And the Supreme Court has noted that the types of actions that the president may take under IEEPA “are drawn from and essentially [are] the same as those in TWEA.” The dissent believes that the power to “regulate . . . importation” embraces tariffs and cites to, among other reasons, Algonquin’s “adjusts imports” language to support that proposition. Given that IEEPA permits the imposition of tariffs, the issues for the dissent boiled down to whether the tariffs exceeded the limits imposed by IEEPA section 202 or 203 or have been displaced by another statute and whether sections 202 and 203 are unconstitutional under the nondelegation doctrine.
In terms of time, scope, and amount limitations, the dissent notes that by operation of law, the present tariffs expire one year after the emergency declaration, unless the President renews the emergency declaration, which certainly seems likely. Further, the dissent argued there is no temporal restriction imposed by law on the imposition of tariffs by the president, and no such constraint exists in IEEPA. As for the rate amounts, there is nothing in IEEPA that restricts the rates of imposed tariffs, which is not especially surprising since IEEPA makes no mention of tariffs. And there is no language in IEEPA that limits the scope of any tariff that that president chooses to impose. Thus, the dissent argues that the present tariffs do not exceed IEEPA sections 202 and 203. The dissent views the majority’s time, scope and amount rationales as “non-text-based limitations” that have no statutory foundation. The dissent also dispenses with the CIT’s reliance upon another statute, section 122 of the Trade Act of 1974, as limiting the authority to implement tariffs under IEEPA. The two statutes operate in different realms with IEEPA applying to national security and foreign policy threats “well outside” the scope of section 122’s non-emergency situations. The dissent’s view is that the predicate requirement for the application of section 122 (“fundamental international payments problems,” that is, issues attendant to currency reserves) does not apply to the Reciprocal Tariffs, which pertain to out-of-kilter balance of payment issues. Thus, the Trade Act of 1974 does not displace any tariffs imposed under IEEPA.
The dissent rejected the argument that IEEPA constitutes an unconstitutional delegation of legislative authority to the president given the deference that Congress has afforded the president in foreign affairs, tariffs involve the president’s role and responsibilities in foreign affairs, and Congress has granted the president a broad delegation of power under IEEPA in such affairs. Further, the dissent noted that the Court in Algonquin held that section 232(b) of the Trade Expansion Act of 1962 (addressing the “adjusts imports” language) “easily fulfills” the “intelligible principle” test. The dissent saw no reason to treat IEEPA (“regulate . . . importation”) any differently.
As for the major questions doctrine, the dissent’s view is that it does not bar presidential action in the realm of national security or foreign affairs. Congress granted a broad delegation of power to the president under IEEPA to deal with emergencies within these realms, and so long as IEEPA’s section 202 standards are met, the president has the authority to choose the tools by which to restrict imports.
As for the trafficking tariffs, the dissent rejected the argument that the tariffs had to address only goods that are the source of illegal opioid importation or precursor elements. Instead, IEEPA allows the president to use tariffs as leverage in negotiating with foreign nations to solve the problem identified, much as the United States did with seizing Iranian assets during the hostage crisis in 1980.
Though the Federal Circuit remanded the case to the CIT, it stayed issuing its mandate to allow the filing of a petition for writ of certiorari to the U.S. Supreme Court, which the government filed on September 3, 2025. The government presented two questions and its view of the answers: whether IEEPA authorizes the tariffs imposed by the president (yes), and if so whether IEEPA unconstitutionally delegates legislative authority to the president (no). In its petition, the government argues that “[w]ithout qualification, IEEPA authorizes the President to ‘regulate’ – i.e., to govern or control – foreign imports to address national emergencies.” The government relies upon the Supreme Court’s Algonquin decision, which “interpreted the phrase ‘adjust imports’ to encompass tariffs,” and Yoshida, which upheld tariffs imposed under TWEA relying upon the same language in IEEPA, that is, the power to “regulate . . . importation.” The government argues that the Federal Circuit’s holding might authorize some tariffs, but “not ones of the duration, scope, or amount of the tariffs challenged here,” yet cites to no limitations in IEEPA’s text. The government describes the president’s power to impose tariffs as “capacious” and argues that the major questions doctrine does not apply for a variety of reasons, including that: IEEPA authorizes tariffs and so there is no reason to apply the major questions doctrine to “atextually limit the types of authorized tariffs”; the major questions doctrine does not apply when Congress delegates authority directly to the president; and the doctrine does not apply in the context of national security or foreign policy. As for the nondelegation doctrine, the government contends that in the context of national security and foreign affairs, the doctrine plays “an even more limited role in light of the President’s constitutional responsibilities and independent Article II authority” noting the Supreme Court in Mazurie held that “limitations on Congress’s authority to delegate are ‘less stringent in cases where the entity exercising the delegated authority itself possesses independent authority over the subject matter.’” In any event, the government argues that IEEPA passes muster under the nondelegation doctrine’s standard because it prescribes a general policy for the president to follow and imposes various boundaries.
The Supreme Court has granted the government’s petition and scheduled oral argument for the first week in November 2025. With the stage almost set, the Roberts Court will have to address a variety of constitutional issues, including confronting the application of its major questions doctrine (whether it only applies to domestic policy) and the nondelegation doctrine to the cornerstone economic policy of this administration. Quite a showdown is looming.
This article is one in a series of articles written for Blank Rome’s MAINBRACE: September 2025 edition.
An earlier version of this article was published in Texas Lawyer on August 18, 2025.
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