The oral arguments before the Supreme Court in the IEEPA case concerning Trump’s reciprocal tariffs will be heard shortly (November 5th). It involves a host of issues: whether the use of tariffs is authorized by any interpretation of IEEPA (under ‘regulation of importation’), and related questions concerning national security / foreign policy, national emergencies, ‘major question doctrine,’ and the ‘non-delegation doctrine, among others. 

     This case also includes interpretation of other more specific and tailored trade statutes and their impact on the more general IEEPA statute.

     Trump has already begun switching his reliance from IEEPA to other trade statutes with other rationales for tariffs, such as Section 232 (national security) and Section 301 (retaliation for unfair or illegal foreign actions). He is threatening China because of its expanded export controls over rare-earth minerals as well as threatening a Section 301 investigation for failure to observe a prior trade truce (2020) during Trump I.

     Trump’s tariffs have already forced multinational companies to shift their business strategies from cost-cutting to seeking stability. By the way, millions of dollars of potential tariff refunds may be owed to firms if the Supreme Court rules against Trump.      

     To me, the IEEPA case will be the most important case ever concerning the president’s trade powers. It will be a clear indication of the likely Supreme Court’s position in other pending cases concerning Trump’s excessive grab of power.

     Trump’s threats to attend (and to intimidate the Justices) and his fierce reaction concerning Ontario’s ad using excerpts from Reagan’s speech concerning tariffs — are unheard of. Just as his destruction of the East Wing of the White House and the sinking of boats on the high seas and murder of their occupants.

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“Lawyers for small businesses and states challenging Trump’s authority to impose sweeping tariffs on almost all goods imported into the United States urged the Supreme Court to leave in place rulings by lower courts that struck down most of the tariffs. One group of small businesses told the justices that the tariffs “have equated to the largest peacetime tax increase in American history,” while another contends that the tariffs “upend a century of trade law” …. In Washington, D.C., a pair of small businesses that make educational toys and products went to federal court to challenge the tariffs …. Two other lawsuits were filed in the Court of International Trade: one by a different group of five small businesses and the second by a group of 12 states. That court also agreed with the challengers that IEEPA did not give Trump the power to impose the tariffs …. The Trump administration appealed to the U.S. Court of Appeals for the Federal Circuit, which hears appeals from the Court of International Trade. The Federal Circuit agreed that IEEPA did not give Trump the power to impose the trafficking or reciprocal tariffs. It explained that Trump’s “use of tariffs qualifies as a decision of vast economic and political significance,” which required the government to “‘point to clear congressional authorization’” – which, the majority wrote, the government could not do …. The Trump administration asked the justices to review both lower courts’ decisions. The court agreed to do so, fast-tracking the briefing and scheduling oral arguments for the justices’ November argument session …. In their briefs the challengers offered a range of arguments for why the court should strike down the trafficking and reciprocal tariffs. First, unlike every actual tariff statute, IEEPA nowhere mentions ‘tariffs …. Second, the phrase “regulate importation” is not normally understood to include the power to tax or impose tariffs ….. Third, tariffs are precluded by the “major questions” doctrine – the idea that when Congress wants to give the executive branch the authority to make decisions with “vast economic and political significance,” it must clearly say so. …. The challengers resisted the government’s argument that the major questions doctrine should not apply to the president’s tariffs because of their national-security and foreign-policy implications. Fourth, the tariffs violate the nondelegation doctrine – the principle that Congress cannot delegate its lawmaking powers to other institutions. The states acknowledged that “Congress has delegated authority to the President to adjust tariff rates in response to discrete, specifically enumerated circumstances.” “Small Businesses, States and Trump’s Tariffs in S. Ct. (Filings).” Scotus Blog (10.22.25).

“The dispute over President Donald Trump’s authority to impose sweeping tariffs, set for argument on Wednesday, Nov. 5, centers on the International Emergency Economic Powers Act, which gives the president the power to “regulate … importation” of “property in which any foreign country or a national thereof has any interest” during a national emergency. But it is drawing attention to a different law on trade called Section 122, which more explicitly grants the president tariff powers. Section 122, part of the Trade Act of 1974, empowers the president to impose “a temporary import surcharge,” not to exceed 15%, for up to 150 days in order to address “fundamental international payments problems.” The text of the law explains that it’s designed to help the president address “large and serious … balance-of-payments deficits” or to “prevent an imminent and significant depreciation of the dollar in foreign exchange markets.” The small businesses and states challenging Trump’s authority to impose tariffs under IEEPA highlighted Section 122 in briefs filed Monday in the Supreme Court. Section 122 shows that when Congress wants to delegate tariff powers to the president it does so explicitly, they said, and with clear limitations ….  And the limits outlined in Section 122 and other laws that explicitly mention tariffs control the scope of IEEPA, they added. “It makes no sense to read IEEPA’s general language to allow the President to circumvent these statutes’ specific substantive and procedural limits … And the very existence of these tailored statutes belies the notion that IEEPA grants him unbounded power to impose tariffs whenever and however he sees fit,” contended one of the groups of small businesses …. Trump likely used IEEPA, rather than Section 122 or another law regarding tariffs, to implement his tariffs policy because – at least in the administration’s reading – it allows the president to impose tariffs without a federal agency investigation into their potential impact and over a longer term.” “Section 122 of the Trade Act of 1974 and Interpretation of IEEPA.” Scotus Blog (10.23.25).

“Trump’s first “liberation day” didn’t make it clear, his latest round of tariffs certainly did — the era of easy international business is over. Gone are the days of prioritizing streamlined operations and low-cost supply chains. We are now living in a re-globalised world, where countries seek to balance the benefits of globalisation with the desire to build greater resilience in critical industries Collaboration between public and private partners is crucial. Policymakers  and international companies can serve as partners …. There are also new rules of operation to consider. Where companies used to prioritise efficiency and cost-saving, they are now looking for stability and security …. For long-standing companies, re-globalisation means redesigning operating models …. This new playbook isn’t only important for business leaders looking to appease shareholders — it is necessary for survival. “Global Business & Re-Globalized World.” Financial Times (10.22.25).

“Trump’s strategy to persuade the Supreme Court to uphold his sweeping tariffs is not subtle. To some opponents of his tariffs, Trump’s frequent use of apocalyptic rhetoric about his signature policy ahead of the Nov. 5 oral argument is an obvious attempt to influence the court by focusing on the potential consequences of a ruling against him …. Trump, who has a long history of harshly criticizing judges who rule against him, has even suggested he might attend the Supreme Court in person for the oral argument Nov. 5. There is no official record of any sitting president ever attending a Supreme Court argument …. Trump is also quick to accuse others of seeking to put pressure on the justices. He posted that he was ending trade negotiations with Canada because he thought the country was trying to influence the Supreme Court to rule against him on tariffs via an ad sponsored by the province of Ontario.” “Trump’s Threats and Supreme Court (Tariffs Case).” NBC News (10.24.25).

“Trump said he was motivated (to cancel Canadian trade negotiations) by an ad, paid for by the province of Ontario, that featured Ronald Reagan criticizing tariffs in a 1987 radio address …. Trump said he was terminating negotiations with Canada over the high tariffs that he imposed on its steel, auto parts and other major exports …. The quotes in the ad are drawn from a radio address that Reagan gave in April 1987, in which he urged Congress not to pursue protectionist policies against Japan and gave a blistering critique of the economic effects of tariffs.” “Trump, Canada and China and Ontario’s Reagan Ad.” New York Times (10.25.25).

“The Trump administration plans to file a Section 301 trade investigation into China’s failure to uphold the terms of a trade deal signed in Trump’s first term …. The trade case could also provide the Trump administration with a way to keep pressure on Beijing in the coming months if the Supreme Court strikes down other tariffs the president has issued on China.” “New Trump Section 301 Investigation of China.” New York Times (10.25.25).

“A broad range of specialists in laws governing the use of lethal force have called Trump’s orders to the military patently illegal. They say the premeditated extrajudicial killings have been murders …. In peacetime, targeting civilians — even suspected criminals — who pose no threat of imminent violence is considered murder. In an armed conflict, it is a war crime …. The silence about what legal theory can support Trump’s assertion that suspected drug smugglers are lawful military targets as “combatants” in an armed conflict dovetails with a growing pattern in his administration’s assertions of executive power.” “Sinking Boats and Killing Smugglers on High Seas – No Legal Memo.” New York Times (10.26,25).

“The Supreme Court isn’t likely to be influenced by anything other than the law, but Mr. Trump’s Canada eruption is a good argument for the Justices to rein in his tariff power. The President gets angry at a TV ad and imposes on a whim a 10% tax on Americans who buy goods from their northern neighbor. Mr. Trump claims he’s not “a king,” but on tariffs he is acting like one, and without a proper delegation from Congress as the Constitution requires …. Mr. Trump has been fortunate that his tariffs haven’t triggered much retaliation, which has spared us from a global trade war. But the tariffs are doing economic damage by raising costs for consumers.” “Reagan vs. Trump on Tariffs.” Wall Street Journal (10.27.25).

“For months, companies and officials throughout Asia have been waiting for Trump to address a question that cuts to the heart of his disruptive plans for global trade. How will he decide the origin of goods in a world where virtually all the things we buy …. The determination that the Trump administration makes on the so-called rule of origin could blow up laboriously negotiated agreements. That is because if a product is shipped from one country but does not meet the origin criteria, it will be hit with a hefty special tariff, which Mr. Trump has warned will be 40 percent.” “Origin Rule at Center of Trade War.” New York Times (10.27.25).

“The Major Question Doctrine requires Congress to use plain and direct language to authorize sweeping economic actions by the executive branch. The 1977 law that Trump is relying on, the International Emergency Economic Powers Act, might seem to fail that test, as it does not feature the word “tariffs” or similar terms like “duties,” “customs,” “taxes” or “imposts” …. There is some reason to think the doctrine may disappear in the tariffs case …. In a 7-to-4 decision in August, the U.S. Court of Appeals for the Federal Circuit relied on the major questions doctrine to rule against Trump’s tariffs program …. A 2024 article published in The University of Pennsylvania Law Review called “Foreign Affairs, Nondelegation and the Major Questions Doctrine” (concluded the doctrine is applicable to national security and foreign affairs issues.).” “ ‘Major Question Doctrine’ and Trump’s Tariff Case in the Supreme Court.” New York Times (10.28.25).

“Neal Katyal, a “prominent litigator” and former acting solicitor general who “has argued more than 50 cases at the Supreme Court,” will argue there again next week on behalf of small businesses that challenged Trump’s authority to impose tariffs under the International Emergency Economic Powers Act …. Katyal won the job through “a coin flip” over Pratik Shah, the head of Akin Gump’s Supreme Court practice. “We are honored to be represented by Neal at this important moment in the case and are putting all our energy into preparing for the hearing in Nov. 5th.” “Katyal to Argue Tariff Case Before Supreme Court.” SCOTUS Blog (10.29.25).