Attorneys Speculate on Timing of SCOTUS Review of IEEPA Cases
While many attorneys believe that one of the cases on the legality of President Donald Trump's tariffs is on a collision course with the Supreme Court, questions remain about exactly when the high court will review the case and in what form. One possibility would see the lead appeal, V.O.S. Selections v. Trump, which currently sits before the U.S. Court of Appeals for the Federal Circuit, head to the Supreme Court's emergency, or "shadow," docket.
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The shadow docket is where parties seek emergency stays of lower court rulings, and it could come into play should the Federal Circuit rule against Trump's tariffs but refuse to stay its own decision. Then, the Supreme Court would hold limited briefing on the CAFC's decision, though it wouldn't hold any in-person oral argument.
Crowell & Moring attorney Dan Wolff said that if the Federal Circuit issues its decision in September, as is widely expected, the Supreme Court could move to stay the ruling or let a ruling adverse to the Trump administration proceed in October, should the case wind up on the shadow docket.
Without the case appearing on the high court's emergency docket, the question of when and in what form the Supreme Court will consider the legality of Trump's tariffs becomes murkier.
Were SCOTUS to consider the Federal Circuit's impending decision in V.O.S. Selections by itself, it could quickly grant certiorari, order expedited briefing and hear the case in either its December or January sittings. One attorney involved in one of the cases against the tariffs said they could possibly see the Supreme Court taking up the case in January at the earliest, though this would require the "government to really push" for the case to be heard and for all parties to agree on certiorari and a briefing schedule.
Complicating the affair are the other cases challenging tariffs. One such case, brought by importers Learning Resources and Hand2mind, is currently being briefed before the U.S. Court of Appeals for the D.C. Circuit and has a Sept. 30 argument date. However, the importers asked the Supreme Court to preemptively take the case, and SCOTUS will consider that petition at its Sept. 29 conference (see 2508060040).
Wolff said it's "unlikely" the court would grant certiorari in the Learning Resources case before the D.C. Circuit issues its decision. Should the V.O.S. Selections decision come out first, as is likely, the high court could grant certiorari or "hold the [V.O.S. Selections] petition until Learning Resources is decided," he said.
An attorney related to one of the International Emergency Economic Powers Act cases said the Supreme Court may be more inclined to hold the V.O.S. Selections petition until the D.C. Circuit issues its decision. Under this scenario, the court would then grant certiorari in either December or January, pushing oral argument to "late winter," with a decision coming on the "last day of term in June."
Echoing this sentiment, Amy Howe of SCOTUSblog said most "court watchers believe" the court "could issue a decision by next summer."
Further complicating the issue are two appeals before the U.S. Court of Appeals for the 9th Circuit, which are set to be heard by the appellate court on Sept. 17 (see 2507090022). Wolff said it's even possible that the Supreme Court waits until the 9th Circuit also rules on the issue before setting the IEEPA cases for its merits docket.