U.S. LAW & GLOBAL TRADE RELATIONS.

                         Malawer.Virginia_Universities_Virginia-Pilot_11.30,2025_.pdf

                   My recent article in the Virginia-Pilot (November 30, 2025).

The recent Virginia election has opened a real possibility for restoring stability and integrity to the commonwealth’s public university system. The elections of Abigail Spanberger as governor and Jay Jones as attorney general create an important opportunity to reverse the damaging effects of the President Donald Trump-Gov. Glenn Youngkin-Attorney General Jason Miyares campaign against the boards of visitors and university counsel offices. These efforts must be halted — and will almost certainly be undone. Board members should be respected  professionals who provide oversight to the university, not politicized ideologues. Likewise, university counsel should be respected professionals appointed by the university president.

The recent neo-Nazi controversy at the Heritage Foundation has further eroded confidence in the Youngkin-appointed university rectors connected to that institution. Moreover, the Virginia Supreme Court’s decision striking down Youngkin’s appointments to the boards of visitors at George Mason University, Virginia Military Institute and the University of Virginia has effectively dismantled what remains of Youngkin’s educational legacy.

Youngkin, with a smile, embraced Trump’s harsh policies — including those targeting international students — while Miyares enforced them with a snarl. Virginia now has an opportunity to chart a new course and put an end to the inexplicable attacks by the governor and attorney general on the commonwealth’s leading universities. Ultimately, Youngkin’s most enduring legacy may prove to be the blue wave generated in the recent election, which even produced new Democratic gains in rural counties for the first time in memory.

As a former faculty member at George Mason University who taught international law and global trade for more than 40 years in both the law school and the newer public policy school, I am proud of George Mason University and its president for standing firm against both the Trump and Youngkin administrations. A diverse and global student body is essential to a university education today and competing in today’s global economy. This is essential to a broad range of industries in Northern Virginia, Richmond and Tidewater as well as agriculture throughout Virginia.

                                   
The new Spanberger administration should be fully prepared to confront the Trump administration in federal court. The federal judiciary has repeatedly shown itself to be a viable — if not the only — battleground for safeguarding the nation from presidential abuses of power and law.  This is underscored even more today by Trump’s fierce opposition to the pending Supreme Court litigation seeking reversal of his tariffs, by Trump’s newest proposals to dismantle the U.S. Department of Education and his continuous attacks on foreign students — resulting in declining international student enrollment.

What is needed now is strong legal advocacy from the new attorney general and firm leadership from the new governor, supported by the General Assembly and its newly elected members, to aggressively oppose Trump’s millionaire-inspired educational policies.

It is encouraging that the new governor has already taken a decisive step regarding UVA by calling for a pause in its presidential search under the Youngkin-appointed Board of Visitors.

Virginia’s public universities are essential to the commonwealth’s economic development. They have been a driving force in building a highly skilled workforce and have contributed significantly to Virginia’s long-standing recognition by CNBC as “the best state for doing business” — a distinction earned more times than any other state.

Just as importantly, Virginia’s public universities have played a central role in Virginia’s successful engagement in the global trading system for many decades, attracting new businesses and investment and, in turn, expanding employment and prosperity throughout the commonwealth. In the light of the Trump-induced chaos in both domestic and global politics today, a strong public university system is vital to Virginia and is critical to our national interest.

Stuart S. Malawer, J.D., Ph.D., of Great Falls is a distinguished service professor of law and international trade emeritus in the Schar School of Policy and Government at George Mason University. He is a former gubernatorial appointee to the Virginia Economic Development Partnership Board of Directors and the Advisory Committee on International Trade, and former chair of the international section of the Virginia State Bar.

                      Malawer.Virginia_Universities_Virginia-Pilot_11.30,2025_.pdf

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                          Virginia Universities – Restoring Stability

                    Professor Stuart S. Malawer (George Mason University)

                                                           Virginia Universities (VP) (Nov. 2025).

The recent Virginia election has opened a real possibility for restoring stability and integrity to the Commonwealth’s public university system. The elections of Spanberger and Jones create an important opportunity to reverse the damaging effects of the Trump–Youngkin–Miyares campaign against the Boards of Visitors and university counsel offices. These efforts must be halted—and will almost certainly be undone.

The recent neo-Nazi controversy at the Heritage Foundation has further eroded confidence in the Youngkin-appointed university rectors connected to that institution. Moreover, the Virginia Supreme Court’s decision striking down Youngkin’s appointments to the Boards of Visitors at George Mason University, VMI, and UVA has effectively dismantled what remains of Youngkin’s educational legacy.

Youngkin, with a smile, embraced Trump’s harsh policies—including those targeting international students—while Miyares enforced them with a snarl. Virginia now has an opportunity to chart a new course and put an end to the inexplicable attacks by the governor and attorney general on the Commonwealth’s leading universities. Ultimately, Youngkin’s most enduring legacy may prove to be the blue wave generated in the recent election, which even produced new Democratic gains in rural counties for the first time.

As a former faculty member at George Mason University teaching international law and global trade for over forty years in both the law school and the newer public policy school, I am proud of George Mason University and its president for standing firm against both the Trump and Youngkin administrations. A diverse and global student body is essential to a university education today and competing in today’s global economy. This is essential to a broad range of industries in Northern Virginia, Richmond and Tidewater as well as agriculture throughout Virginia.

The new Spanberger administration should be fully prepared to confront the Trump administration in federal court. The federal judiciary has repeatedly shown itself to be a viable—if not the only—battleground for safeguarding the nation from presidential abuses of power and law.  This is underscored even more today Trump’s fierce opposition to the pending Supreme Court litigation seeking reversal of his tariffs, by Trump’s newest proposals to dismantle the U.S. Department of Education and his continuous attacks on foreign students – resulting in declining international student enrollment.

What is needed now is strong legal advocacy from the new attorney general and firm leadership from the new governor, supported by the General Assembly and its newly elected members.

It is encouraging that the new governor has already taken a decisive step regarding UVA by calling for a pause in its presidential search under the Youngkin-appointed Board of Visitors.

Virginia’s public universities are essential to the Commonwealth’s economic development. They have been a driving force in building a highly skilled workforce and have contributed significantly to Virginia’s long-standing recognition by CNBC as “the best state for doing business”—a distinction earned more times than any other state.

Just as importantly, Virginia’s public universities have played a central role in Virginia’s successful engagement in the global trading system for many decades, attracting new businesses and investment and, in turn, expanding employment and prosperity throughout the Commonwealth. In the light of the Trump-induced chaos in both domestic and global politics today, a strong public university system is vital to Virginia and is critical to our national interest.

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Stuart S. Malawer, J.D., Ph.D., Distinguished Service Professor of Law and International Trade (Emeritus) at George Mason University. Former gubernatorial appointee to the board of the Virginia Economic Development Partnership and to the Advisory Committee on International Trade. Former Chair of the International Section of the Virginia State Bar.

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“In a loss for Gov. Glenn Youngkin and the state attorney general’s office, the Supreme Court of Virginia will not review a lower court’s ruling that blocked three Virginia universities from seating rejected Youngkin board appointees …. Representing the rectors of George Mason University, the University of Virginia and Virginia Military Institute, state Attorney General Jason Miyares office had asked the state’s high court to overturn a Fairfax County Circuit Court judge’s temporary injunction issued in July. That injunction prevented the rectors from recognizing eight Youngkin board appointees who were not confirmed by a Democratic-controlled state Senate committee …. Senate Majority Leader Scott Surovell tweeted Monday that the state Supreme Court “has affirmed the Senate P&E committees’ authority to reject gubernatorial nominations because MAGA rules don’t work in Virginia where we still have a rule of law that Youngkin and Miyares have to follow.” The political dispute over university governance has hit a fever pitch this year under the Trump administration’s investigations into diversity, equity and inclusion initiatives and alleged antisemitism at the University of Virginia and George Mason University …. George Mason’s president, Gregory Washington, is still in office despite coming under heavy criticism by congressional Republicans and the U.S. Department of Education, which found in August that the university violated federal civil rights law.” “Virginia Supreme Court and Youngkin’s Board Appointments — Governor Loses” Virgina Business (Nov. 18, 2025).

“The Virginia Supreme Court has refused to take up a case that suspended multiple appointees by Gov. Glenn Youngkin from serving on three Virginia university governing boards. Virginia Attorney General Jason Miyares appealed to the court after the Fairfax County Circuit Court suspended eight governing board appointments from serving at George Mason University, Virginia Military Institute and the University of Virginia. The 15-member Senate Committee on Privileges and Elections rejected 22 appointments in the past year and the issue has been one of several that rocked Virginia’s higher education landscape in 2025.” “Virginia Supreme Court and Youngkin’s Board of Visitor Appointments.” Virginia Mercury (Nov. 17. 2025).

“Virginia’s governor appoints the board members at each campus who oversee the state’s public university system, and conservative board members and alumni have engineered efforts to oust leaders of the universities, largely over disputes about diversity initiatives …. Virginia may be an early example of how shifting political control could hobble the White House’s national campaign to change higher education …. The Trump administration also set its sights on George Mason, claiming that its first Black president, Gregory Washington, unlawfully favored underserved minority candidates in hiring and promotion, and demanded that he issue a public apology. Dr. Washington has refused …. On Thursday, Republicans on the U.S. House Judiciary Committee stepped up the pressure campaign against Dr. Washington by releasing a 50-page report that accuses him of unlawfully discriminating against white and Asian job candidates in favor of Black and Latino applicants, and of lying to congressional staff members about the matter. Douglas Gansler, a lawyer for Dr. Washington, strongly denied the accusations.” “Virginia and Higher Ed.” New York Times (Nov. 11, 2025).

“And the rule of law? England was the birthplace of the Industrial Revolution partly because of a legal system that offered protection and predictability. In contrast, Trump has periodically defied lower courts and used the Department of Justice to punish his political opponents ….  These three factors (universities, trade and law and immigration) are central to America’s rise as the world’s leading power today. And these strengths are now being systematically undermined, especially universities, trade, the rule of law and recruitment of the world’s best minds …. But decline seems to me more likely if America chokes trade and immigration while stifling universities.”  “Universities, Trade and Law – Innovation.” New York Times (11.16.25).

     Just to note an anniversary. I edited The FEDERAL REGULATION OF INTERNATIONANL BUSINESS (5 volumes).  It was published 45 years ago (1980) by the U.S. Chamber of Commerce in conjunction with Georgetown University (Institute of International and Foreign Trade Law). It was the first comprehensive treatment of the topic — federal legislation, regulation and cases impacting the exploding post-war era of global business. It was updated for many years and widely relied upon by lawyers, policymakers and corporate executives.

     The Virginia election has opened up huge possibilities that the election of Spanberger and Jones can restore sanity to the great public university system in Virginia. Trump-Youngkin-Miyares degrading of the Board of Visitors and university counsel offices at Virginia universities need to be stopped and will surely be reversed. 

     The recent Neo-Nazi dispute at the Heritage Foundation doesn’t help the university rectors from the Heritage Foundation appointed by Youngkin.  Needless to say, the recent Virginia Supreme Court decision against the Youngkin appointments to the Board of Visitors at George Mason, VMI and UVa totally demolishes whatever remains of Youngkin’s heritage.     

     With a smile Youngkin, as a lackey for Trump, copied Trump’s reactionary policies. Miyares did so with a snarl. Finally, we will have a change in the Commonwealth — away from its inexplicable attack by its governor and attorney general on Virginia’s major universities. Youngkin’s legacy is the blue wave in the recent election — carrying even rural counties, for the first time ever.

     Proud of George Mason’s and its president’s stand against the Trump and Youngkin administrations. The new state administration should confront the Trump administration in court. The federal courts have proven a very viable battlefield, if not the only one.

     We need strong legal advocacy by the new attorney general, strong leadership by the new governor, with the support of the General Assembly and its new members.

     It’s good to see that the new governor has already taken a strong stand concerning UVa — calling for pausing its presidential search under the Youngkin-appointed Board of Visitors.

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“The Virginia Supreme Court has refused to take up a case that suspended multiple appointees by Gov. Glenn Youngkin from serving on three Virginia university governing boards. Virginia Attorney General Jason Miyares appealed to the court after the Fairfax County Circuit Court suspended eight governing board appointments from serving at George Mason University, Virginia Military Institute and the University of Virginia. The 15-member Senate Committee on Privileges and Elections rejected 22 appointments in the past year and the issue has been one of several that rocked Virginia’s higher education landscape in 2025.” “Virginia Supreme Court and Youngkin’s Board of Visitor Appointments.” Virginia Mercury (Nov. 17. 2025).

“Virginia’s governor appoints the board members at each campus who oversee the state’s public university system, and conservative board members and alumni have engineered efforts to oust leaders of the universities, largely over disputes about diversity initiatives …. Virginia may be an early example of how shifting political control could hobble the White House’s national campaign to change higher education …. The Trump administration also set its sights on George Mason, claiming that its first Black president, Gregory Washington, unlawfully favored underserved minority candidates in hiring and promotion, and demanded that he issue a public apology. Dr. Washington has refused …. On Thursday, Republicans on the U.S. House Judiciary Committee stepped up the pressure campaign against Dr. Washington by releasing a 50-page report that accuses him of unlawfully discriminating against white and Asian job candidates in favor of Black and Latino applicants, and of lying to congressional staff members about the matter. Douglas Gansler, a lawyer for Dr. Washington, strongly denied the accusations.” “Virginia and Higher Ed.” New York Times (Nov. 11, 2025).

“And the rule of law? England was the birthplace of the Industrial Revolution partly because of a legal system that offered protection and predictability. In contrast, Trump has periodically defied lower courts and used the Department of Justice to punish his political opponents ….  These three factors (universities, trade and law and immigration) are central to America’s rise as the world’s leading power today. And these strengths are now being systematically undermined, especially universities, trade, the rule of law and recruitment of the world’s best minds …. But decline seems to me more likely if America chokes trade and immigration while stifling universities.”  “Universities, Trade and Law – Innovation.” New York Times (11.16.25).

         https://www.us-global-law.net/images/Links_Interviews_Nov._7,_2025_.pdf

Global TV Interviews by Dr. Stuart Malawer on Trump’s Tariffs (2025)

Stuart S. Malawer, JD, Ph.D. (December 2025)

• Trump’s Farm Bailout and Midterm Elections. CGTN (2025).
• Supreme Court & Oral Argument. WION (India) (2025).
• Supreme Court Tariff Case and Canada’s (Ontario’s) Reagan Ad. RT Interview (2025).
• Litigation Strategies and Trump’s Tariffs. PTI India (2025).
• Global Business: Impact of U.S. Tariffs CGTN (China) 2025.
• Global Business: Impact of U.S. Tariffs on Mexican Farm Products CGTN (China) 2025.
• White House Slams Jeff Bezos’s Amazon Over Tariff Display Plan | Race To Power WION (India) 2025.
• China Hits Back At Donald Trump With 84% Retaliatory Tariff On US Goods | WION WION (India) 2025.
• Рейды, протесты и ввод войск в Калифорнию ][ Итоги второго раунда переговоров США и Китая (English ……… mp4 – Google Drive) RT (Russia) 2025.

India (Wion TV) (11.5.25) – Oral Arguments in Supreme Court “Trump Tariff Case.”      https://www.youtube.com/watch?v=KOMFnuOWeuA (at 4:03).

India (Wion TV) (11.5.25) – Oral Arguments in Supreme Court “Trump Tariff Case.”      https://www.youtube.com/watch?v=KOMFnuOWeuA (at 4:03).

    The oral arguments did not go well for Trump. He continues afterwards trying to intimidate the court. To me, the role of Chief Justice Roberts in handling this case will have immense impact on its outcome of it and on executive power.

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  The following is from CNBC’s initial assessment of the oral arguments — Trump may lose. “Supreme Court Skeptical of Trump’s Tariffs.“ CNBC (11.5.25).

Supreme Court justices on Wednesday morning expressed skepticism about the legality of aggressive tariffs imposed by President Donald Trump against most of the world’s nations. Conservative and liberal justices sharply questioned Solicitor General D. John Sauer on the Trump administration’s method for enacting the tariffs, which critics say infringes on the power of Congress to tax. Lower federal courts have ruled that Trump lacked the legal authority he cited under the International Emergency Economic Powers Act to impose the so-called reciprocal tariffs on imports from many U.S. trading partners, and fentanyl tariffs on products from Canada, China and Mexico. Sauer, who is defending the tariff policy as grounded in the power to regulate foreign commerce, said “these are regulatory tariffs. They are not revenue-raising tariffs.” The fact that they raise revenue was only incidental,” Sauer said, shortly after oral arguments in the case began. Justice Sonia Sotomayor, one of the court’s three liberal members, told Sauer, “You say tariffs are not taxes, but that’s exactly what they.” “Generating money from American citizens, revenue,” Sotomayor said.

She later noted that no president other than Trump has ever used IEEPA to impose tariffs. Justice Neil Gorsuch, one of six conservatives on the court, pressed Sauer on the fact that Trump had unilaterally imposed the tariffs, citing purported international emergencies of trade imbalances and the flow of fentanyl into the United States, without Congress authorizing them. “Happens when the president simply vetoes legislation to take these powers back?” Gorsuch asked. “So Congress as a practical matter can’t get this power back once it’s handed it over to the president,” Gorsuch said. “It’s a one-way ratchet toward the gradual but continual accretion of power in the executive branch and away from the people’s elected representatives. “Other conservatives — Chief Justice John Roberts and the justices Amy Coney Barrett, Brett Kavanaugh and Samuel Alito — also pressed Sauer. The tariffs start at a baseline of 10% on many nations and spike to as high as 50% on goods from India and Brazil. The tariffs, if allowed to stand, would result in $3 trillion in extra revenue for the United States by 2035, according to the Committee for a Responsible Federal Budget. That group last week said the federal government collected $151 billion from customs duties in the second half of fiscal year 2025, “a nearly 300% increase over the same period in” fiscal year 2024.

Katyal opened his argument by saying, “Tariffs are taxes,” picking up the theme that multiple justices had raised with Sauer. Our founders gave that taxing power to Congress alone.” “We don’t think IEEPA allows this junking of the world-wide tariff architecture,” Katyal later said. When Roberts asked Katyal is tariffs implicated the power of the president to conduct foreign policy for the United States, as Sauer argued, Katyal replied, “We agree that tariffs have foreign policy implications. “But he added that the Founding Fathers had delegated the power to tax to Congress in the Constitution. Katyal also pointed out that despite the argument that the reciprocal tariffs are being used to address trade deficits, Trump imposed a tariff of 39% on imports from Switzerland, an ally of the U.S., even though the U.S. runs a trade surplus with that nation. No other president has ever done something like that, he said. The Supreme Court, which heard more than two-and-a-half hours of arguments, will not issue a decision in the case on Wednesday. It is not clear when the court will release its ruling. Treasury Secretary Scott Bessent said in a court filing in September that the U.S. might have to refund $750 billion or more if the Supreme Court ruled the tariffs are illegal and waited until next summer to issue that ruling. The case is seen as a key legal test for Trump, who has won some favorable rulings from the Supreme Court for other policies during his second term in the White House.

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“President Donald Trump’s administration is working behind the scenes on fallback options if the Supreme Court strikes down one of his major tariff authorities, looking to replace the levies as quickly as possible …. Both the Commerce Department and the Office of the US Trade Representative have studied Plan B options if the court rules against the administration.  Those include Section 301 and Section 122 of the Trade Act, which grant the president unilateral ability to impose duties …. The replacements come with risks — they tend to be either slower or more limited than the wide-ranging powers Trump has asserted so far and could face their own legal challenges …. In some cases, backup plans are already in motion. Trump has launched a 301 investigation against Brazil, for instance, and has 301 levies on some Chinese products from his first term. The provision typically requires a lengthy investigation before duties can be implemented …. Section 122 powers would let the president impose tariffs of 15% — but only for a maximum of 150 days … “Trump’s Tariffs Fallback.” Bloomberg (11.24.25).

“Trump has been bragging about how much money the tariffs will raise for the government, but “before the Supreme Court on Wednesday, his lawyer said something different. The tariffs were tools to achieve policy goals …. ‘The fact that they raise revenue,’ he said, ‘is only incidental.‘” “The difference was legally significant. If the Supreme Court finds that the tariffs are, at bottom, a kind of tax, it is likely to rule against them, since the Constitution gives Congress, not the president, the power to tax,” ….”If the justices agree that the tariffs are diplomatic tools, they may sustain them, as part of the president’s foreign policy prerogative.” “Trump’s Tariffs – Blunder in Brief?” New York Times (Nov. 9, 2025).

“I want to remind readers that while the decision will be enormously important in determining the extent of presidential authority, in the immediate case, the outcome will not make much difference. If Trump wins, the tariffs stay in place. If he loses, he will reimpose at least some of them using different statutes…. The two big issues are how much of its authority Congress can delegate to the executive and whether the authority delegated in this case constitutes a “major question” …. Two other topics took up some time. First was whether the IEEPA language “regulate . . . importation” includes tariffs. Plaintiffs contend it does not. The second concerned the revenue the tariffs are raising. Several justices pointed out that if they are raising revenue, then they are a tax, which only Congress has the authority to impose …. The prevailing view of observers was that justices across the spectrum indicated varying degrees of skepticism about the administration’s arguments. I agree with that, but don’t think it necessarily means a defeat for the president.” “Waiting for the Supreme Court.” CSIS (Nov. 10, 2025).

“Chief Justice John Roberts faces a defining challenge as he enters his third decade leading the Supreme Court: how far to let Donald Trump’s presidency rewrite the bounds of executive power ….  Still, in some areas, Roberts has been less aggressive than other conservative justices, and he has nurtured the reputation of an institutionalist: a judge who places value on consensus, stability in the legal system and building credibility with the public. That has been more difficult this year. Trump has been deliberately aggressive in challenging norms and boundaries. A flood of lawsuits have followed …. In last week’s case, Roberts appeared to lean against the administration’s arguments that Trump had the power to unilaterally impose tariffs with virtually every nation. But the arguments barely touched on the implications of ruling against the president. Not only are the economic consequences enormous—the government says it expects to have collected between $750 billion and $1 trillion in tariffs by next June—the political implications could be even greater. Trump has championed an aggressive tariff regime for decades; as president, he views import taxes as essential to remaking the U.S. economy. Taken together, the economic stakes and the president’s intense personal commitment to his tariffs almost make the case too big to lose.” “Chief Justice Roberts and Trump’s Tariffs.” Wall Street Journal (Nov. 10, 2025).

“So does the ruling matter at all? It could very well, and here’s how. The Supremes have generally been supine towards Trump, extending presidential immunity against prosecution being one particularly egregious example. Ruling against him on IEEPA will be quite a jolt, especially since Trump has made so much of the case including threatening to attend the hearing in person. The idea that tariffs are a bad idea in themselves is pretty solidly lodged with the public and particularly with businesses. Being declared illegal won’t improve their image. Even CEOs who generally don’t dare speak out against Trump economic policy are prepared to diss them.” “Political Risk for Trump and Tariff Case.” Financial Times (Nov. 11, 2025).

“Trump claims tariff ‘unwind’ would cost $3 trillion — In a Truth Social post, Trump contended that the “U.S. Supreme Court was given the wrong numbers” in the tariffs case and that “the U.S. would be on the hook for $3 trillion in refunds and lost investments if the administration loses” …. “That would truly become an insurmountable National Security Event, and devastating to the future of our Country.”  Scotus Blog (Nov. 12, 2025).

     What about the Iranian Hostage Case (Dames & Moore)?  What about two major Supreme Court doctrines (Major Question Doctrine and Non-delegation Doctrine), and presidential foreign policy – national security powers?  These are among issues that the Supreme Court will confront when deciding Trump’s tariff case that is set for oral argument tomorrow. Other issues include some very basic statutory interpretations.

     To me, most importantly is the issue of whether or not some justices will put aside their obvious bias toward Trump and vote according to the law. Justices Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett, who were all appointed to the Supreme Court by Trump. While Trump won’t be at the oral arguments, the U.S. Treasury Secretary Bessent said that he will “hopefully [be] in the front row and … have a ringside seat.” Is this administration attempt at intimidation?

    This case will be essential to deciding the most important case this term — concerning Trump’s power grab. My guess — the case will be decided by a very narrow vote — one way or another. Hopefully, against Trump’s unlawful tariffs.

     The country is against these tariffs — both businesses and people — as well as the global trading community. Even though most have tried to avoid his whimsical and grievous behavior. It’s the small firms that have brought litigation, not the large ones. It’s been conservative organizations that have bankrolled and joined the litigation. We’ll see …………

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• The Iranian Hostage Crisis began on this day in 1979. As CNN reported last week, the International Emergency Economic Powers Act played a role in President Jimmy Carter’s work to resolve the crisis; he invoked IEEPA to explain why he could use “frozen Iranian assets as a ‘bargaining chip.'” The Supreme Court later reviewed and upheld his interpretation of IEEPA, which was supported by his successor, President Ronald Reagan, in a decision that may play a role in this term’s tariffs case …. Big business sits out the Supreme Court fight over Donald Trump’s tariffs — The challenges to Trump’s tariffs that are now in front of the Supreme Court came from a group of states and small businesses, not large retailers. The names of well-known, large companies also won’t be found among the organizations that filed friend-of-the-court briefs on the tariffs, even though companies such as General Electric, Procter & Gamble, and Intel have weighed in on other recent, high-profile cases, according to CNN. Legal experts and “multiple people involved with the case” …. that major companies’ relative silence may stem from fear of retribution from the Trump administration or insulation from the immediate financial effects of the tariffs, as some “can switch supply chains or absorb the costs.” Scotus Blog (11.4.25).  

• “The tariffs case is the first time the justices have weighed the underlying legal merits of a key administration priority …. The case has divided the conservative legal community …. The case will also force the justices to address two doctrines favored by the conservative legal movement, both of which appear to work against the president’s claims. The “major questions doctrine” … and the other — the “nondelegation doctrine” — says that Congress cannot transfer unlimited legislative powers — like its taxing authority — to the executive branch …. A recent concurring opinion from Justice Brett M. Kavanaugh in another case that suggested the two doctrines play little to no role in the context of national security and foreign policy emergencies.” “Justices and Tariffs.” New York Times (11.4.25).

• “Trump likes to call 19th-century President William McKinley the “Tariff King.” The Supreme Court on Wednesday will take up cases that will determine if Trump and every other President really have the power to act like a king (Learning Resources, Inc. v. Trump, Trump v. V.O.S. Selections) …. Trump this spring slapped tariffs on most countries around the world, declaring that the U.S. trade deficit and foreign fentanyl are national emergencies …. Arbitrary taxation without representation is precisely what the Constitution’s Framers sought to prevent by vesting power over taxes and trade with Congress ….     As for the law, the U.S. has run a trade deficit for 50 years and deaths from fentanyl have been declining. How do these suddenly qualify as “national emergencies”? ….  The Trump Administration tries to leapfrog all of these statutory obstacles by citing the President’s Article II foreign-policy authority. Few conservatives are more deferential to presidential overseas authority, but the power of the purse still belongs to Congress and can’t simply be wished away with the words “foreign policy.” Tariffs are taxes on Americans.”   “Tariff King and Supreme Court.” Wall Street Journal (11.3.25).

     We have a range of legal issues concerning the Trump’s tariff case before the Supreme Court. For example, separation of powers and the ‘major question doctrine. But the one primary issue that is on everyone’s mind is without a doubt — Will politics of the conservative majority override careful legal analysis of the statute (IEEPA) and presidential authority? This question is wide open. So is the role of Congress in setting tariffs, presidential foreign affairs and the role of courts in reviewing such issues.

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• “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).

• “Ahead of next week’s oral arguments on tariffs let’s look behind the scenes of an interesting, related case: Dames & Moore v. Regan. In it, the court considered the president’s authority under the International Emergency Economic Powers Act (the same policy that’s at issue in the tariffs dispute) to use frozen Iranian assets to resolve the Iranian hostage crisis. Chief Justice John Roberts, then a clerk for Justice William Rehnquist, helped write the court’s decision in favor of the president. The justices are expected to revisit Dames & Moore as they weigh whether IEEPA authorizes President Donald Trump’s tariffs.” “Dames & Moore and Trump’s Tariff Case.” Scotus Blog (10/30.25).

• “Tariffs or taxes on imports have been a powerful weapon in Donald Trump’s trade policy in his second term, but could they be illegal? The United States Supreme Court will next week start to hear a case that challenges the president’s right to impose those duties without the approval of Congress. Defeat for Trump could have major ramifications for US trade policy. Victory could give the president broad new powers, not just over tariffs. Which way is the case likely to go? And what will Trump’s options be if he loses? …. It’s going to be really hard for the court to actually write an opinion that says that this particular statute, the International Economic Emergency Powers Act, or what we call often, IEEPA, actually provides the tariff authority that the president has claimed …. This statute grew out of something called the Trading with the Enemy Act, and the idea was that during times of war, you needed to give the president particular powers over trade …. So Trump is doing something that has never been done. The statute that he’s using was passed in 1977. So in its, you know, 50-plus history, it has never been used to impose tariffs. It has been used repeatedly to impose economic sanctions, particularly financial sanctions on transactions …. If the Congress disagrees with the president’s use of this particular authority, the law gives the Congress the ability to pass a resolution that terminates the emergency …. But built into the law was this notion that either the House or the Senate in the United States could pass a resolution saying, we disagree. We therefore terminate the emergency …. In Yoshida, the court was very clear that we will allow these tariffs because they were very limited in time. They were very limited in the scope of what they covered. They only established tariff levels that were already below the level that the Congress itself had established for tariff levels …. Trump’s view is, as long as you’re under that foreign affairs national security tent, their view is the president has unlimited powers and that the courts should not, could not scrutinize anything that the president does in the realm of foreign affairs, national security …. This is a very conservative court and they have ruled in many instances in Trump’s favor. But I think a couple things are different here …. And at some level, the court, I think has to take on board those basic facts that the word tariff and duty do not appear anywhere in this statute …. All of those other statutes require, again, an evidentiary finding and they are typically both product- and country-specific. And again, the president would have to show that they have met the terms of each one of those individual statutes for each one of the products, each one of the countries, in order to uphold any tariffs that they might impose under them …. The particular national security exception, Article 21 of the GATT, was itself fairly limited. I mean, yes, it said that you could declare what was in your own essential security interests, but in theory, you could only take exceptions if what was involved was trade in nuclear materials or arms, ammunition, implements of war …. What everybody is complaining about is the chaos, is the uncertainty, the inability to plan …. That level of predictability, instability, insecurity within the trading system is something that over the long haul is intolerable. And therefore, I do think you’re going to see more and more of the broadly writ business community say, we cannot live with this level of chaos. We need more of a rules-based system.” “Are Trump’s Tariffs Legal (Jennifer Hilman).”  Financial Times (Oct. 30, 2025).

“How did the dispute over the tariffs start? Beginning in February, Trump issued a series of executive orders imposing tariffs. The tariffs can be divided into two categories. The first type, known as the “trafficking” tariffs, targeted products of Canada, Mexico, and China, because Trump says those countries have failed to do enough to stop the flow of fentanyl into the United States. The second category, known as the “worldwide” or “reciprocal” tariffs, imposed a baseline tariff of 10% on virtually all countries, and higher tariffs – anywhere from 11% to 50% – on dozens of them. In imposing the worldwide tariffs, Trump cited large trade deficits as an “unusual and extraordinary threat to the national security and economy of the United States.” One case was filed in the U.S. District Court for the District of Columbia by Learning Resources and hand2mind, two small, family-owned companies that make educational toys, with much of their manufacturing taking place in Asia. Another case challenging the tariffs was brought in the U.S. Court of International Trade by several small businesses, including V.O.S. Selections, a New York wine importer, and Terry Precision Cycling, which sells women’s cycling apparel. What are the laws at the center of the dispute over the tariffs? Article I of the Constitution gives Congress the power to “lay and collect Taxes, Duties, Imposts and Excises,” and it requires that “Bills for raising Revenue shall originate in the House of Representatives.” In issuing the executive orders that imposed the tariffs, Trump relied primarily on a 1977 law, the International Emergency Economic Powers Act. Section 1701 of IEEPA provides that the president can use the law “to deal with any unusual and extraordinary threat, which has its source in whole or substantial part outside the United States, to the national security, foreign policy, or economy of the United States,” if he declares a national emergency “with respect to such threat.” Section 1702 of the act provides that, when there is a national emergency, the president may “regulate … importation or exportation” of “property in which any foreign country or a national thereof has any interest.” Has the Supreme Court addressed this question? The Supreme Court has not weighed in on the president’s power to impose tariffs under IEEPA. United States v. Yoshida International, a 1975 decision by the U.S. Court of Customs and Patent Appeals, is perhaps most relevant to the current tariff debate because of the similarities between IEEPA and the text of the law at the center of that case, the Trading with the Enemy Act of 1917. That case began as a challenge to then-President Richard Nixon’s imposition of a 10% temporary tariff on imports in response to a large trade deficit, which in 1971 was a relatively unusual development in U.S. history. In 1974, the U.S. Customs Court – the predecessor to the Court of International Trade – ruled that Nixon did not have the power under the Trading with the Enemy Act, which allowed the president in the case of an emergency to “regulate … the importation … of … any property in which any foreign country or a national thereof has any interest.”   In response to the ruling by the Customs Court, a provision of the Trade Act of 1974 specifically gave the president the power to impose tariffs to “deal with large and serious United States balance-of-payment deficits,” but – at the same time – the law limited tariffs to a maximum of 15% and a duration of five months. The Court of Customs and Patent Appeals reversed the decision of the Customs Court, concluding that Nixon had the authority to impose the tariffs after all. The 10% tariff, the court explained, was a “limited” one imposed “as ‘a temporary measure’ calculated to help meet a particular national emergency, which is quite different from ‘imposing whatever tariff rates he deems desirable.’” What are the challengers’ arguments? The challengers contend that – unlike other laws that directly deal with tariffs – IEEPA doesn’t mention tariffs or duties at all, and that no president before Trump has ever relied on IEEPA to impose tariffs. And the government has not provided an example of any other law, they add, in which Congress used the phrase “regulate” or “regulate … importation” to give the executive branch the power to tax. Interpreting IEEPA to give the president the power to impose unilateral worldwide tariffs would create a variety of constitutional problems, the challengers before the Federal Circuit also contend.  First, they write, it would run afoul of a doctrine known as the major questions doctrine, they say, which requires Congress to be explicit when it wants to give the president the power to make decisions with vast economic and political significance. Allowing the president to rely on IEEPA to impose the tariffs would also violate the nondelegation doctrine – the principle that Congress cannot delegate its power to make laws to other branches of government. How did the lower courts rule on these cases? In the cases brought by V.O.S. Selections and the other small businesses as well as the states, the CIT on May 28 ruled for the small businesses and the states, and it set aside the tariffs. The CIT reasoned that IEEPA’s delegation of power to “regulate … importation” does not give the president unlimited tariff power. The limits that the Trade Act sets on the president’s ability to react to trade deficits, the court continued, indicates that Congress did not intend for the president to rely on broader emergency powers in IEEPA to respond to trade deficits. The “trafficking” tariffs are also invalid, the CIT continued, because they do not “deal with an unusual and extraordinary threat,” as federal law requires. Instead, the CIT concluded, Trump’s executive order tries to create leverage to deal with the fentanyl crisis. The U.S. Court of Appeals for the Federal Circuit, which hears appeals from the Court of International Trade, put the CIT’s ruling on hold while the government appealed. By a vote of 7-4, a majority of the Federal Circuit agreed that “IEEPA’s grant of presidential authority to ‘regulate’ imports does not authorize the tariffs” that Trump had imposed. In the case in federal court in the District of Columbia, U.S. District Judge Rudolph Contreras ruled for Learning Resources and hand2mind, agreeing with them that “the power to regulate is not the power to tax.” Contreras’ order was a narrow one, barring the government only from enforcing the tariffs against Learning Resources and hand2mind, and he put that decision on hold while the government appealed. “ “Trump’s Tariffs – Summary of Case.”  Scotus Blog (10.30.25).

“Five Republicans join Democrats to repeal the 50% border tax on Brazil …. It’s good to see some Members of Congress push back against Trump’s usurpation of their constitutional power over trade and taxes …. The Supreme Court next week will hear a challenge to Trump’s use of IEEPA …. The Senate vote is a welcome signal that he won’t get it.” “Senate Stirs Against Tariffs.” Wall Street Journal (Oct.31, 2025).

“Trump’s approach to world affairs is deeply transactional …. For large parts of the world, it is Trump’s tariff policies that are now the single most important aspect of their relationship with the US. …. It is probably too much to expect that an instinctive and egotistical figure like Trump will ever come up with a fully formed and internally consistent approach to the outside world.” “The Trump Doctrine.” Financial Times (Nov. 1, 2025).

“This momentous case must either undermine or buttress the Constitution’s architecture: the separation of powers. Six amicus briefs explain why …. The conservative Goldwater Institute and the liberal Brennan Center separately argue that the statute the president says gives him unreviewable power to impose taxes (which tariffs are)  … does no such thing …. A brief from a broad spectrum of economists argues: Even if the IEEPA permits imposing tariffs (it has never been so used), tariffs would not “deal with” (IEEPA language) trade deficits. Besides, over the past 50 years, in any given year, most countries have run trade deficits …. A brief from the New York University School of Law’s Institute for Policy Integrity stresses the “major questions” doctrine, which protects Congress from having its words twisted to unintended purposes. It holds that Congress does not cryptically delegate enormous powers. Presidents claiming such delegated powers must cite specific congressional language ….  A brief by three Cato Institute researchers refutes the extralegal doomsaying the administration uses, perhaps to compensate for the weakness of its legal arguments …. The administration says tariffs imposed under the IEEPA are indispensable for negotiating agreements with trading partners. But since the IEEPA’s 1977 enactment, 14 regional and bilateral agreements have been reached, without any IEEPA tariffs.” “S. Ct. Tariff Case – Separation of Powers.” Washington Post  (11.1.25).

Click to access Malawer.Trump,_Courts_and_Congrss_RTD_4.13.25_.pdf

     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.

………………………………………..

“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).