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.
Continue reading “V.O.S. Selections, Inc. and the Sword of Yoshida”
