US Takes IEEPA Tariff Suit to SCOTUS, Asks for Speedy Resolution
The U.S. on Sept. 3 asked the Supreme Court to review the lead case on the legality of tariffs imposed under the International Emergency Economic Powers Act, concurrently moving the court for expedited consideration of its petition for writ of certiorari. Should the petition be granted, Solicitor General D. John Sauer asked that the court expedite the briefing schedule as well, which would conclude with oral argument held the first week of November (Donald J. Trump v. V.O.S. Selections, U.S. 25-250).
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The solicitor general said the plaintiffs, five importers and 12 U.S. states, have "indicated that they will acquiesce in, or not oppose, certiorari, and that they agree" with the government's proposed briefing schedule.
That schedule would have the court decide on the cert petition by Sept. 10. From there, the government's opening brief would be due by Sept. 19, the plaintiffs' brief would be due Oct. 20, and the government's reply would be due by Oct. 30. Oral argument then would be held the first week of November.
The motion comes on the heels of the Trump administration's loss at the U.S. Court of Appeals for the Federal Circuit on the legality of various tariffs imposed under IEEPA (see 2508290073). In particular, the appellate court struck down the reciprocal tariffs and tariffs on China, Canada and Mexico meant to combat the flow of fentanyl as a violation of the statute.
The solicitor general appealed the decision to the Supreme Court. Invoking declarations from various Cabinet officials, Sauer said that to the "President and his most senior advisors, these tariffs thus present a stark choice: With tariffs, we are a rich nation; without tariffs, we are a poor nation."
The petition dubbed the Federal Circuit's reasoning "profoundly wrong" in that it "contradicts IEEPA’s plain text, the Court’s cases, statutory history, and longstanding practice." The solicitor general said the power to tariff firmly falls under the statute's permission for the president to "regulate ... importation."
Sauer stressed that the Federal Circuit didn't find that IEEPA doesn't confer any tariff authority, faulting the court for taking a "some-but-not-others" approach to what tariffs are allowed under the statute. The brief said this theory "would leave courts with no metrics for judging when tariffs last too long, realize too much revenue, cover too many countries, or become too effective for the court’s liking," adding that IEEPA doesn't let judges "perversely declare tariffs unlawful at some judicially discerned point when they achieve too much."
The solicitor general said the high court should consider the cert petition and the merits of the case on an expedited basis "to the maximum extent feasible," due to the "enormous importance of quickly confirming the full legal standing of the President's tariffs" under IEEPA.
Sauer attached a declaration from Treasury Secretary Scott Bessent attesting to the importance of a quick ruling. The secretary said the Federal Circuit's ruling already has adversely impacted ongoing trade negotiations by casting a "pall of legal uncertainty over the President's" tariffs. "World leaders are questioning the President's authority to impose tariffs, walking away from or delaying negotiations, and/or imposing different calculus on their negotiating positions," Bessent said.
Sauer added that the longer a ruling is delayed, the "greater the risk of economic disruption." Delaying a ruling on the merits until June 2026 could lead to a scenario in which $750 billion to $1 trillion in tariffs have been collected, which could turn the process of returning them into a "significant disruption," the brief said. A delayed or adverse ruling also could disrupt trade deals that have already been struck, under which foreign nations have agreed to buy from or invest in the U.S., Sauer said.