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

     The Supreme Court will be hearing Trump’s tariff case this November. Trump’s tariffs can lead to an additional 100,000 unemployed. His most recent tariff actions have caused total chaos in trade relations with Korea and Japan as well as other countries including India, China and the EU (over Russian oil purchases). They have already amounted to essentially billions of a new sales tax on U.S. firms and consumers. They may need to be refunded if the Supreme Court denies the validity of his tariffs. They have also resulted in significant less employment in various industries and inflation in the U.S.

     If Trump’s tariff actions are upheld, this will result in one of the biggest business tax increases ever. The Supreme Court will be reviewing the president’s emergency actio0n within the context of several pieces of legislation, most notably IEEPA (1977). This is probably the most important tariff case ever and crucial to Trump’s outrageous tariff actions this year. 

    Here’s the two cites to the lower courts and appeals court decisions against Trump and these tariffs. Keep in mind this is actually only one case of many challenging Trump’s historically abusive attempts at extending presidential authority in a broad range of areas. Trump constantly threatens federal judges and courts. (He also berates foreign and international courts — such as the International Criminal Court — but that’s another story.)

     His total disdain for the U.S. legal system is further evidenced by his unfounded multi-billion-dollar lawsuits against the New York Times and Wall Street Journal for reporting on his business failures. Keep in mind also that Trump’s limited success on the shadow or emergency docket concerning provisional measures does not mean much in projecting success on the merits in the pending tariff case.

     Of course, the Republicans in the House continue to block any actions against Trump’s tariffs, but the Democrats in the Senate have been somewhat successful in bringing resolutions to a vote and passing them. (Led by Senator Kaine of Virginia.) We’ll see more shortly.

………………………………………………….

                                     V.O.S. SELECTIONS, INC.

Trump’s Tariff Case (Court of International Trade) (2025). https://www.cit.uscourts.gov/sites/cit/files/25-66.pdf

Trump’s Tariff Case (U.S. Court of Appeals for the Federal Circuit) (2025). https://www.cafc.uscourts.gov/opinions-orders/25-1812.ERRATA.9-2-2025_2566341.pdf

…………………………………………….

“For the president, the power to issue limitless tariffs is at the heart of his second-term vision, from trade to foreign policy …. When Trump unveiled his initial slate of punishing tariffs he fashioned the announcement as a critical moment in a dawning global trade war …. His  gambit could be in peril, after the Supreme Court agreed to hear a case challenging the legality of Trump’s actions. Now his administration is confronting the potential loss of a powerful tool at the heart of his second-term strategy, one that has allowed the president to force concessions from companies, allies and adversaries …. But judges have repeatedly ruled against Trump, with one panel of judges finding that the president did not possess “unbounded authority” to impose tariffs, especially without the approval of Congress. While the courts have not always choked off the emergency powers law as a way of imposing any tariffs, the judges in each of the cases have still found the president’s duties to be a step too far …. Tariffs aren’t free and, contrary to the administration’s persistent claims, Americans pay them.” “Tariffs and the Pending Supreme Court Case.” New York Times (Sept. 11, 2025).

“In the span of 24 hours last week, Trump managed to roil both South Korea and Japan, two longtime allies that less than two months earlier had said they would invest a combined nearly $1 trillion in the United States in exchange for lower tariffs. U.S. immigration officials raided the construction site of a major Hyundai-LG plant in Georgia, a flagship project by two of South Korea’s most prominent companies. Hundreds of South Korean citizens were arrested and detained …. On the same day, Trump signed an executive order enacting a trade deal he had struck with Japan in July, committing Japan to invest $550 billion in the United States. The order codified the reduced automotive tariffs that Tokyo had desperately sought. However, it came with a memorandum of understanding between the two countries stating outright that Trump, not Japanese officials, will select how the $550 billion will be invested in ….  In both Japan and South Korea, increasingly vocal leaders in government and business feel their countries were strong-armed and are questioning whether it still made sense to comply with Trump’s demands.” “Japan and Korea Fury Over Tariffs.” New York Times (Sept. 12, 2025).

“Trump has often claimed that foreign exporters, not Americans, pay tariffs. In fact, importers (such as retailers) remit the duty to the government. They can, in theory, persuade exporters to absorb some or all of the tariff, or pass it along to their customers. While who ultimately pays can’t be known precisely, several economists estimate that American businesses paid 50% to 60% of Trump’s tariffs to date, with the balance split roughly between exporters and consumers …. So if the Supreme Court gives Trump what he wants, tariffs could end up as one of the biggest business-tax increases in decades, wiping out the tax benefits for expensing capital investment in this year’s Republican tax and spending law. “Tariffs Case and Massive New Powers.” Wall Street Journal (Sept. 12, 2025).

“The U.S. Constitution doesn’t have a general emergency authority. Instead, we have a web of laws that give the president special powers in specific circumstances. Trump has relied upon that web of laws in a systematic way that none of his peacetime predecessors did …. Trump has used 10 emergency declarations to justify hundreds of actions. Consider: The Alien Enemies Act of 1798 empowers the president to quickly deport foreigners during a war or an invasion — but doesn’t say what an invasion is. The International Emergency Economic Powers Act of 1977 says the president can take action against an “unusual and extraordinary threat.” But the trade deficit Trump cites as the reason for his tariffs is usual and ordinary. An appeals court said last week that tariffs imposed by executive order were illegal, but Trump is appealing to the Supreme Court …. This isn’t like the most naked seizures of power in modern history, such as the Nazi takeover after the Reichstag fire in 1933. “ “Trump’s Declaration of Emergencies.” New York Times (Sept. 12, 2025).

“Trump administration prevailing much more often (in the Emergency or Shadow Docket) than its predecessor had — 84 percent of the time, compared with 53 percent for the Biden administration …. In the 17 cases in which the Biden administration sought emergency relief from the Supreme Court over four years …. By contrast, in the 19 cases in which the court has ruled on applications from the second Trump administration …. Rulings on emergency applications filed by the government, moreover, tend to present the same essential questions: how much deference is due the president and whether temporarily blocking a government program challenged as unlawful would cause more harm than letting it proceed …. The emergency docket presents a different portrait of the court, one in which partisan affiliations map onto voting patterns quite closely, reinforcing the declining public confidence in the court reflected in opinion polls …. It is premature to draw larger conclusions about how the second Trump administration will fare at the Supreme Court. Its many victories arising from its second-term initiatives have so far all been in the context of emergency applications for interim relief, and it may face serious headwinds when the court considers cases on the merits. The justices agreed to hear challenges to Trump’s sweeping tariffs, and legal experts say he could well lose …. Partisan politics plays out far more in the emergency applications than in the merits cases.” “Supreme Courts Emergency Rulings – Show Split.” New York Times (Sept. 14, 2025),

“President Donald Trump’s rebukes of judges and courtroom prosecutors have extended far beyond the United States’ borders in his second term in office, as he and his officials question the fairness of an increasing number of foreign nations’ domestic court systems ….  Trump had also invoked sanctions against the International Criminal Court, which the administration has accused of illegitimately asserting jurisdiction and abusing its power …. Trump trying to undermine anything that places limits on what states can do, whether it’s a limit on what a state can do to its own country, or a limit on how states can be judged internationally. Trump wants to undermine the power of institutions that would put a check and balance on a single national leader.” “Trump Opposes Foreign & International Courts Also.” Washington Post (Sept. 14, 2025).

“The federal Court of International Trade (CIT) surprised most of us in May by ruling against the deceitfully named “reciprocal tariffs”, saying that the International Emergency Economic Powers Act (IEEPA) under which they were imposed wasn’t meant for that purpose — though the duties remained in place pending further action. Two weeks ago the Court of Appeals for the Federal Circuit, ignoring Trump’s bizarre warning that striking the tariffs down would destroy the country, upheld the ruling, though again left them in place for now. Last week the Supreme Court decided it would take up the case with great haste and would hold hearings in the first week of November …. It was clear from the beginning of his administration that Trump had little regard for domestic and international trade law …. The specialist Court of International Trade and the appeals court focused precisely on interpretations of statute, and specifically whether the IEEPA was designed to delegate decisions over tariffs to the president. Given that the first section of the US constitution says that the power to impose tariffs is given to Congress …. Both courts decided that IEEPA does not so delegate, and therefore it cannot be used to impose tariffs. At the point the case moves on to the Supreme Court, the trade lawyers shift a bit to the side and the constitutional lawyers edge into the spotlight. The current Supreme Court justices are not collectively a courageous bunch, and Trump has deliberately raised the stakes with his hysterical claims about the judgment destroying the US. More concretely, permanently striking the tariffs down will mean giving up revenue and refunding the money taken in so far. The Committee for a Responsible Federal Budget, a non-profit organisation that analyses US fiscal policy, says that revenue from Trump’s tariffs is now pushing above 1 per cent of GDP. A negative Supreme Court judgment would reduce the projected revenue gains from an estimated $2.8tn by the end of 2034 to $800bn. That’s a big chunk of money to find from somewhere else.” “U.S. Tariff Litigation.” FT—Trade Secrets (Sept. 15, 2025).

“The Republican-led House moved again to relinquish Congress’s power to weigh in on Trump’s tariffs, even as Democrats in the Senate prepared to force votes challenging his trade war …. It was the latest instance in which House Republicans, many of whom have spent much of their career opposing tariffs as a matter of principle, have given up their power over trade …. Democrats in the Senate, where the minority has more tools at its disposal have made more headway in forcing tariff votes through the national emergencies statute. Senator Tim Kaine, Democrat of Virginia, intends to bring forward two resolutions in the coming days to terminate the emergencies Trump declared to justify tariffs on Canada and Brazil.” “Republicans, Congress and Trade – Update.” New York Times (Sept. 19, 2025).

     The Trump administration continues to erode the power of Congress, trampling on its constitutional prerogatives in ways large and small. Rather than the tariff policy, the key question is how much the courts will serve as a lasting check on an administration committed to materially reshaping the domestic and international economic orders. So far so good. Litigation has proven the only effective response to Trump to date. We’ll see. By the way, domestically, Trump has instituted state-owned corporate shares and profit-sharing with the government and rang in cronyism in economic policy and government actions.

      Federal judges are frustrated with the Supreme Court for increasingly overturning lower court rulings involving the Trump administration with little or no explanation. Congress is doing nothing. A few former Republican senators have objected.

    His tariffs are causing domestic harm and more is to come.  The billons of questionable tariffs already collected may be ordered refunded. They were really a national sales tax to fund Trump’s bloated budget, tax bill and increased deficits. The Supreme Court will be hearing the historical tariff case in November and a decision may be reached by the end of the year.

     Worst of all, countries are not following us. They are moving on.

…………………………………..

“The Supreme Court agreed Tuesday to quickly hear the Trump administration’s bid to save its sweeping global tariffs, setting the stage for a final ruling on a cornerstone of the president’s economic agenda. The court in a brief order said it would hear the case in early November, a schedule that could deliver a ruling before the end of the year. It will be the first time the high court has decided on the legality of a major policy from Trump’s second term …. The trade case raises little-explored questions about the president’s unilateral power over the economy. Trump has said that a 1977 law gives him broad powers to impose baseline levies of 10% on virtually every nation—and much higher rates for countries that don’t cut deals with the U.S., as well as an additional set of tariffs for Canada, China and Mexico …. Several courts so far have found that the law, the International Emergency Economic Powers Act, doesn’t authorize Trump to do these things …. Several cases about Trump’s authority in other spheres could land on the Supreme Court’s docket in the new term that starts in October.” “S.Ct. Fast Tracks Tariff Case.” Wall Street Journal (Sept. 9, 2025).

“The Trump administration continues to erode the power of Congress, trampling on its constitutional prerogatives in ways large and small. Through it all, Republicans in charge have mostly shrugged — and in some cases, outright applauded — as their powers, once jealously guarded, diminish in ways that will be difficult to reverse ….  What is different now is the degree of disdain Mr. Trump has shown for Congress — and the willingness of G.O.P. leaders to defer to him even when it means undercutting their coequal branch of government ….. There’s absolutely no question the president doesn’t have the power to take airstrikes on boats outside U.S. waters with no authorization of war …. This president believes he’s above the law. He doesn’t believe the law applies to him. He doesn’t believe the Constitution applies to him, and if we act like that’s normal, then we just encourage the continued illegal constitutional behavior …. The Trump administration also has dismantled government agencies and offices created by Congress.” “Trump Tramples Congress and it Doesn’t Do Anything.” New York Times (Sept. 7, 2025).

“Rather than the tariff policy, the key question is how much the courts will serve as a lasting check on an administration committed to materially reshaping the domestic and international economic orders. This issue is likely to be tested many times in the coming months and years, with an answer that has significant consequences for many around the world and remains uncertain.” “Significance of Tariff Ruling.” Financial Times (Sept. 4, 2025).

“Federal judges are frustrated with the Supreme Court for increasingly overturning lower court rulings involving the Trump administration with little or no explanation, with some worried. In rare interviews with NBC News, a dozen federal judges — appointed by Democratic and Republican presidents, including Trump, and serving around the country — pointed to a pattern they say has recently emerged …. Lower court judges are handed contentious cases involving the Trump administration. They painstakingly research the law to reach their rulings. When they go against Trump, administration officials and allies criticize the judges in harsh terms. The government appeals to the Supreme Court, with its 6-3 conservative majority. And then the Supreme Court, in emergency rulings (Ghost Docket), swiftly rejects the judges’ decisions with little to no explanation. Emergency rulings used to be rare. But their number has dramatically increased in recent years.” “Federal Judges Criticize Supreme Court.” NBC News (Sept. 4, 2025).

“Much of what is blamed on trade these days has more to do with technological changes, inadequate social policies, and macroeconomic imbalances in big nations such as China and the US. But the trading system itself does need reform. Built for interdependence not over-dependence, too many members today are overdependent on the US for market demand and on China for critical supplies. This is not a recipe for global resilience …. Another area where members need more creativity is the WTO’s dispute settlement system. It remains the only trade dispute resolution mechanism with global reach, although its appellate body has been paralyzed since 2019. Under the radar, though, more and more members are still using the system to resolve disputes.” “Stress Test for Global Trade.” Financial Times (Sept. 5, 2025).

“But something else has changed, too. We are no longer in the muzzle velocity stage of this presidency. We are in the authoritarian consolidation stage of this presidency. I want to be very clear about what I am saying here. Donald Trump is corrupting the government — he is using it to hound his enemies, to line his pockets and to entrench his own power. He is corrupting it the way the Mafia would corrupt the industries it controlled. You could still, under Mafia rule, get the trash picked up or buy construction materials. But the point of those industries had become the preservation and expansion of the Mafia’s power and wealth. This is what Trump is doing to the government. “Trump’s Power Grab.” New York Times (Sept. 8, 2025).

“One reason that other nations are not raising their own tariffs is that Trump’s policies are not delivering the promised benefits …. The most telling evidence that countries are not merely putting a brave face on a bad situation is that they are not raising tariffs on other trading partners. They are rejecting Trump’s approach to trade even in relationships in which they hold the upper hand …. Other nations continue to pursue the example established by the United States decades ago because they continue to see trade, managed judiciously, as a path to greater prosperity. The Trump administration, by rejecting this global consensus, has damaged both the American economy and American global leadership.” “On Trade – The World is Moving On.” New York Times (Sept. 8, 2025).

“Reviewing the pending litigation regarding Trump’s use of the International Economic Emergency Powers Act (IEEPA) to impose tariffs on the world. The administration has now lost this argument twice—once in the Court of International Trade (CIT) and once in the Court of Appeals for the Federal Circuit (CAFC), and it is worth looking at those decisions and their implications. Of course, everybody knows that neither decision is the last word, since the administration has appealed to the Supreme Court. Meanwhile, the tariffs stay in effect, so nothing has really changed on the ground and will not change until the Supremes render their verdict. CAFC decision was 7-4, with judges appointed by presidents of both parties on each side. The decisions largely turned on whether IEEPA permits the use of tariffs in addressing an emergency, even though the word “tariffs” is not mentioned in the statute. That absence is sufficient for some people, but the main argument has been over whether other words in the statute, notably “regulate . . . importation,” encompass tariffs. Based in part on the legislative history of IEEPA, the CIT decided that Congress intended to limit presidential power, not expand it, thus confirming “that the words ‘regulate . . . importation’ have a narrower meaning than the power to impose any tariffs whatsoever.” The decision also pointed out that Congress had, prior to IEEPA, included Section 122 in the Trade Act of 1974, which explicitly gave the president limited authority to impose tariffs to deal with trade imbalances—the very emergency Trump cited. The CAFC also determined those words were insufficient, saying, “the statute bestows significant authority on the President to undertake a number of actions in response to a declared national emergency, but none of these actions explicitly include the power to impose tariffs, duties, or the like, or the power to tax.” The CAFC further elaborated that “whenever Congress intends to delegate to the President the authority to impose tariffs, it does so explicitly, either by using unequivocal terms like tariff and duty, or via an overall structure which makes clear that Congress is referring to tariffs. Both courts were careful to say that they were addressing the specific tariffs targeted in the lawsuits—the trafficking tariffs related to fentanyl imposed on Canada, Mexico, and China, and the “Liberation Day” tariffs imposed on everybody else—and were not deciding that IEEPA precluded all tariffs. This was particularly evident in the CAFC decision, where the four dissenting judges concluded the statute did permit tariffs, and the president was properly exercising his authority, and four of the judges in the majority concluded that the statute did not permit any tariffs. The majority, however, agreed with the CIT that IEEPA did not permit the particular tariffs in question. The difference seems to be rooted in how expansive a view one takes of congressional intent and legislative draftsmanship. For some, words like “regulate . . . importation” were sufficient to conclude tariffs were authorized, but for the majority, they were not. Much of the argument turned on how to interpret a previous case, known as Yoshida II, in which the predecessor court to the CAFC affirmed President Nixon’s action imposing tariffs in response to a balance of payments crisis. The government argued that the decision validated Trump’s action, but the courts noted that the tariffs addressed in Yoshida II were limited in time, scope, and amount in contrast to the Trump tariffs, which led both courts to the conclusion that while IEEPA might permit some tariffs, it did not permit these tariffs. That reasoning allowed both courts to largely avoid the messy constitutional question of how and to what extent Congress can delegate its powers under Article I of the Constitution. The argument that Congress cannot delegate its fundamental powers, particularly on what the Supreme Court has called “major questions,” without providing clear guidance and limitations, and whether IEEPA runs afoul of that doctrine remains to be decided.” “Supreme Court and Trump Tariff Litigation.” CSIS (Sept. 8, 2025).

“The United States government has already collected tens of billions of dollars from President Donald Trump’s “reciprocal tariffs.” But that money — and a lot more — could end up being refunded if the Supreme Court agrees with lower courts that many of the levies on imports from other countries are illegal. How much could that end up being? Anywhere between $750 billion to a whopping $1 trillion, warned Treasury Secretary Scott Bessent in a declaration filed with the Supreme Court last week.” “Tariff Refund?” CNBC (Sept. 8, 2025).

“Tariffs are a core Congressional power,” the court wrote in its decision, saying Trump was intruding on the legislature’s prerogatives without clear authorization from lawmakers …. Similar battles are unfolding in courts across the U.S. Challenges to a host of aggressive actions by Trump are being framed largely about the reach—and limits—of presidential power. But in turn, many of the cases are also about the power of Congress, and how they are decided could have long-term ramifications for the legislative branch …. More than 100 lawsuits against the Trump administration involve core questions about congressional authority. In one batch, states, recipients of government grants and fired workers are challenging the White House’s attempts to hollow out the Education Department, the Consumer Financial Protection Bureau and a dozen other government entities. Their cases all have similar central arguments: Trump can’t unilaterally dismantle agencies created and funded by Congress …. The president has already notched some clear wins at the expense of Congress, including in his efforts to fire a range of high-ranking government officials whose jobs Congress had sought to protect from political interference. The Supreme Court in several cases has allowed Trump to proceed with the dismissals for now, a signal that it is likely to overrule past precedent that said such officials could only be fired for cause. In the tariff cases so far, judges have sided firmly with Congress, saying lawmakers never gave the president the broad authority he claims. Cases about the gutting of government agencies remain in early stages …. In the tariff litigation, former Republican Sens. George Allen of Virginia, John Danforth of Missouri and Chuck Hagel of Nebraska urged judges to rein Trump in. Congress’s power over taxation and commerce, they said, was “a structural safeguard of democratic accountability.” “Trump’s Powers and Congress.” Wall Street Journal (Sept. 9, 2025).

“Whether Americans realize it or not, the Trump administration is trying to engineer a radical reconstruction of capitalism in the United States. The new model looks more like China’s, which allows private-sector development but emphasizes government ownership and control …. Commerce Secretary Howard Lutnick has suggested that in addition to Intel and Nippon Steel, Washington could buy into military contractors such as Lockheed Martin, Boeing and Palantir. The White House has pushed chip makers like Nvidia and AMD to give a share of revenue from sales in China to the U.S. government, providing it a stake without formal ownership …. the Trump administration is handing out or imposing deals arbitrarily and retroactively. The danger is evident …. This is how authoritarian economies function. Success depends less on building products that meet people’s needs and more on cultivating connections with the state.” “Trump is Copying China.” New York Times (Sept. 13, 2025).

“A legal resistance led by a patchwork coalition of lawyers, public-interest groups, Democratic state attorneys general, and unions has frustrated Trump’s ambitions. Hundreds of attorneys and plaintiffs have stood up to him, feeding a steady assembly line of setbacks and judicial reprimands for a president who has systematically sought to break down limits on his own power. Of the 384 cases filed through August 28 against the Trump administration, 130 have led to orders blocking at least part of the president’s efforts, and 148 cases await a ruling …. The groundwork for these victories was laid before Trump was even reelected, in a series of summits in 2023 and 2024. Universities hosted symposiums. Organized labor held private meetings. International experts, who had been studying Hungary’s Viktor Orbán, warned that Trump would move quickly and try to overwhelm his opponents. “We needed to flood the zone with rule-of-law shock and awe.” The plan that emerged was not focused on centralizing a response, but on running a barrage of coordinated efforts. Attorneys general would represent states, advocacy groups such as Public Citizen and the ACLU would focus on their areas of expertise, and the unions would gather stories from their members and identify plaintiffs who could show harm. Atop this infrastructure, new organizations took shape, bringing in tens of millions of dollars to pay for it all …. these legal struggles against Trump are just the opening minutes of a much larger battle. “He did not win that round. We did not win either,” he told me, “But we held our own, and that in itself is a victory …. The Supreme Court, which has so far appeared more favorable to Trump than district courts, could ultimately tilt the scorecard in the president’s favor, as the justices begin to consider the substance of the legal questions presented by Trump.” “Legal Resistance Against Trump – So Far Only Viable Resistance.” The Atlantic (Sept. 2025).

“The Alien Enemies Act and the Major Questions Doctrine …. Somin explored whether the Trump administration’s use of the Alien Enemies Act to deport alleged members of the Tren de Aragua drug gang violates the major questions doctrine, which “requires Congress to ‘speak clearly’ when authorizing the executive to make ‘decisions of vast economic and political significance.'” Courts can and should rule against” the administration’s interpretation of the Alien Enemies Act based on the “text and history of the law alone,” but that the major questions doctrine adds further weight to the idea that the administration’s interpretation of the act is wrong.” Scotus Blog (Nov. 14, 2025).

     Trump’s total disdain for international trade law, law generally and now international law of the sea, law of war and domestic law concerning the U.S. military and assassinations is glaringly highlighted — by his blowing up a motorboat on the high seas and killing all aboard. You can detain them and the boat if in U.S. territorial waters and perhaps arrest them. You just cannot blow up a boat on the high seas and kill them. It’s that simple. Period. Where were the Defense Dept. lawyers? Really an abuse of executive authority. This was not self-defense and there is no declared war. If Trump can’t respect this very basic set of rules, what is the hope of him respecting U.S. law and our international agreements? None.

…………………………………………..

“By ordering the U.S. military to summarily kill a group of people aboard what he said was a drug-smuggling boat, Trump used the military in a way that had no clear legal precedent or basis, according to specialists in the laws of war and executive power …. That raises the question of whether Trump has legitimate authority to tell the military to summarily kill people it suspects are smuggling drugs — and whether the administration allowed career military lawyers to weigh in. It’s difficult to imagine how any lawyers inside the Pentagon could have arrived at a conclusion that this was legal rather than the very definition of murder under international law rules that the Defense Department has long accepted …. As a matter of domestic law, a longstanding executive order bars assassinations, and the Uniform Code of Military Justice bars service members from committing unlawful killings. As a matter of international law, the Pentagon has accepted that “murder” is prohibited everywhere.” ”Killing on the High Seas.” New York Times (Sept. 5, 2025).

“Trade Adjustment Assistance was supposed to help people whose jobs were threatened by overseas competition, but Congress eroded its support starting in the 1980s.  For decades, policymakers have grasped that public support for trade was fragile. The benefits were obvious — economic growth, export opportunities for American companies and lower-priced goods for consumers. But workers in factories were certain to lose their jobs …. In 1962, Congress passed the Trade Expansion Act …. The program, known as Trade Adjustment Assistance, was expanded in 1974. By the end of that decade, the federal government was spending $1.6 billion a year to provide training and additional unemployment aid to 500,000 workers, most of them in the auto industry …. The election of Ronald Reagan as president in 1980 brought suspicion against government assistance for individuals. Spending shrank …. Existing government programs designed to cushion the effects of economic dislocation are, for the most part, out of date, ad hoc and inadequate …. President Trump’s election and re-election have resonated in part as a rebuke of international trade. He has drastically increased tariffs …. One of the problems in the United States is that we’ve never made a full commitment to labor market adjustment programs.” “Trade Adjustment Assistance.” New York Times (Sept. 1, 2025).

                        THE VIRGINIA-PILOT                                                      

             Embrace a litigation strategy

               to confront Trump’s tariffs

                              By Stuart S. Malawer | Guest Columnist

                              PUBLISHED: August 31, 2025.

Under Presidents Donald Trump, Joe Biden and now Trump again, U.S. trade policy has dramatically shifted from its traditional post-World War II approach of multilateralism to one centered on national security and unilateral priorities. At the core of this transformation are the unprecedented tariff increases imposed by Trump and the resulting surge in trade tensions with China, India and other major partners. Significant domestic litigation has been filed challenging Trump’s tariffs, and these cases may ultimately prove fatal to them.

Trump’s trade policies have serious implications for Virginia’s economy. Exports and foreign investment are fundamental to the commonwealth’s economic development strategy. During Trump’s first term, China’s retaliatory tariffs severely impacted Virginia’s agricultural exports. Such retaliation is now repeating itself. As U.S.-China trade tensions escalate, the threat to cargo activity at the Port of Virginia and throughout Hampton Roads has increased.

Today, more than 1,200 foreign-owned firms operate in Virginia, employing more than 50,000 people. However, the establishment of new foreign subsidiaries and employment by international firms appear to have declined this year, likely due to trade uncertainty stemming from Trump’s renewed tariff threats. Ending the “de minimis” exemption this week marks Trump’s largest new tariff yet, carrying major implications for e-commerce, shipping and consumer inflation.

What can be done? One option is for affected parties to litigate trade disputes in U.S. federal courts. Foreign states, foreign corporations and domestic businesses should consider this strategy to challenge Trump’s tariffs.

Central to the debate over the legality of Trump’s tariffs is a constitutional reality: Congress holds the exclusive power to regulate international trade and authorize tariffs (Article I, Section 8, Clause 3). The president has no independent constitutional authority in this area. Congress delegates tariff authority to the president under specific statutes, and any presidential action must be within the limits of that delegation.

Unfortunately, Congress has failed to rein in Trump’s aggressive use of tariffs. However, a case has been filed in the U.S. Court of International Trade challenging several of these measures. This court has already ruled against the president. The case is now before the U.S. Court of Appeals for the Federal Circuit, which so far has expressed skepticism toward the administration’s arguments. The case continues to be heard and is likely headed to the Supreme Court. True to form, the Trump administration has warned the court not to rule against it.

Interestingly, lawsuits challenging Trump’s tariffs have not been spearheaded by multinational corporations or foreign governments. Instead, they have been brought by small U.S. companies, supported by conservative Republican donors, attorneys and several Democratic states. These cases argue that the president’s reliance on “national emergencies” as justification is legally unsound because no such emergency exists. The administration has also resorted to questionable national security claims, most recently expanding tariffs on steel imports from close allies Japan and Korea to 50%.

Trump’s sweeping claims of executive authority extend beyond trade to immigration, border security and other areas. Courts have repeatedly ruled against him. Hundreds of cases have been filed across the policy spectrum, and the administration has lost many at early stages.

So where does this leave businesses and U.S. trading partners facing Trump’s historic use of tariffs — a reversal of decades of trade liberalization, pushing U.S. policy back toward the 1930s? From my perspective as an international trade lawyer and professor with a focus on national security, both companies and foreign governments should increasingly turn to U.S. legal processes as part of their trade strategy.

Tariffs today are no longer a technical detail of trade law. They have become geopolitical weapons. For Trump, tariffs are a blunt instrument to achieve a wide-range of policy goals, regardless of the economic or diplomatic cost. This represents a return to the protectionist policies of the 1930s. What is needed now is leadership that embraces a legal strategy suited for the realities of the 21st century.

Stuart S. Malawer, JD, Ph.D., of Great Falls is a distinguished service professor of law and international trade emeritus in the Schar School of Policy and Government and the founder and former director of the Graduate International Transactions Program at George Mason University. He is a member of the bar of the commonwealth of Virginia and the U.S. Court of International Trade. 

The fate of Trump’s tariffs will now be up to the Supreme Court. It may mindlessly uphold them, but maybe not. I don’t think so. This is the question that will be tested many times over the next few months if not years. Not only as to tariffs but to a wide range of really very questionable and aggressive and ever-expanding executive actions. The use of the ‘ghost docket‘ by the Supreme Court to stay presidential actions has been severely criticized by a large group of federal judges. We’ll see  …….

…………………………………………

“The decision is a big blow to President Trump’s trade policies, but the judges left the duties in place for now to allow time for a likely appeal to the Supreme Court …. A federal appeals court ruled on Friday that many of President Trump’s most punishing tariffs were illegal, delivering a major setback to Mr. Trump’s agenda that may severely undercut his primary source of leverage in an expanding global trade war. The ruling, from the U.S. Court of Appeals for the Federal Circuit, affirmed a lower court’s initial finding in May that Mr. Trump did not possess unlimited authority to impose taxes on nearly all imports to the United States. But the appellate judges delayed the enforcement of their order until mid-October, allowing the tariffs to remain in place so that the administration can appeal the case to the Supreme Court …. The adverse ruling still cast doubt on the centerpiece of Mr. Trump’s trade strategy, which relies on a 1970s law to impose sweeping duties on dozens of the country’s trading partners …. Without IEEPA, the president would be limited in the duties he could apply, and the manner and speed in which they could be imposed. Otherwise, he could seek to enact tariffs with the support of Congress …. The administration has no guarantee of success at the Supreme Court. Many leading conservative and libertarian lawyers and scholars have argued that the president’s duties were issued illegally …. Even if Mr. Trump appeals to the Supreme Court and loses, he still retains significant tariff powers. The available tools include a provision of trade law known as “Section 232,” which allows the president to impose duties related to national security. Mr. Trump has used this tool to impose duties on foreign cars and steel, and propose additional tariffs on semiconductors, pharmaceuticals and other products. Other trade laws allow the president to issue more sweeping tariffs for a limited period of time. Section 122 of the Trade Act of 1974, for example, allows a president to impose duties of up to 15 percent globally for up to 150 days, and could be used as a temporary measure. Another provision of that law, known as Section 301, gives the president broad scope to issue tariffs in response to unfair trading practices, as long as the administration first carries out consultations and an investigation.” “U.S. Circuit Court for the Federal Circuit Declares Illegal Trump’s Tariffs.” New York Times (August 30, 2025).

“In his seven months back in office, President Trump has declared nine national emergencies, plus a “crime emergency” in Washington. Those emergency declarations have been used to justify hundreds of actions — including immigration measures, sweeping tariffs and energy deregulation — that would typically require congressional approval or lengthy regulatory review ….  Trump’s use of emergency powers in this term has far outpaced what is typical …. Tracking the use of these emergency orders to justify tariff actions is extraordinarily complicated …. Attempts in Congress to block or forestall the tariffs have not been successful, but court challenges remain underway. “Trump Far Outpaces Other Presidents in Calling National Emergencies.” New York Times (Aug. 28, 2025).

“The ruling on Friday from the U.S. Court of Appeals for the Federal Circuit throws a wrench in President Donald Trump’s trade agenda, and leaves his “reciprocal tariffs” in limbo. Trump has said that he will appeal the ruling to the U.S. Supreme Court. Trump’s sector-specific tariffs, including on copper and steel, remain safe from the ruling, potentially foreshadowing a new trade playbook Trump could use if his “reciprocal tariffs” are blocked …. The ruling injects a heavy dose of uncertainty into a central tenet of Trump’s economic agenda, which has rattled the global economy since April. For now, the appeals court ruling states the duties on goods from most countries — as high as 50% for a few countries — will stay in effect until Oct. 14, to allow the Trump administration time to appeal the decision to the U.S. Supreme Court. “Trump’s Tariffs that Have been Voided,” CNBC (9.2.25).

“I suspect the impact will be less on trade policy but could turn out to be more important in the power struggle between the executive and some parts of the judicial system. In reaching its decision, the court ruled that using the 1977 International Emergency Economic Powers Act to justify broad tariffs exceeded the president’s powers, adding that it could “discern no clear congressional authorisation” for putting the levies on imports from countries including Canada and China via a series of executive orders. Historically, the IEEPA has been used for targeted actions rather than broad tariffs. But in delivering a blow to one of the legal arguments for the current trade policy …. I suspect that, ultimately, this ruling will not fundamentally alter the administration’s propensity to use tariffs to pursue multiple objectives. The approach is integral to the efforts to rewire the international trading system and also the domestic economy.” “Significance of Tariff Decision.” Financial Times (Sept. 2, 2025).

“President Trump’s tariffs are one of the broadest claims of executive power in American history, taxing imports from anywhere on his personal whim. The problem is he doesn’t have that power under the law or the Constitution, as the Court of Appeals for the Federal Circuit ruled late Friday in V.O.S. Selections v. U.S. This is a crucial moment for the Constitution’s separation of powers …. More ominously for Mr. Trump, his tariffs run afoul of the Supreme Court’s major questions doctrine, which says that Presidents need clear authority from Congress for significant economic and political actions. The Court applied the doctrine in overturning President Biden’s $400 billion student-loan forgiveness. Mr. Trump’s tariffs certainly qualify as major, since they hit more than $4 trillion of imports annually and some 14% of the nation’s economy …. Trump is bloody-minded on tariffs, and he’ll use whatever other statutes he can. He recently expanded his use of Section 232 national-security power to impose tariffs on “derivative” steel and aluminum products, including bulldozers, furniture, railcars, appliances, air-conditioning parts, butter knives, spray deodorants and strollers. Who knew that baby buggies were a threat to the homeland? “Trump Isn’t Tariff Queen.” Wall Street Journal (Sept. 2, 2025).

“The Supreme Court has flirted with a flurry of Trump administration matters in recent months, but the battle over the president’s sweeping global tariffs will put the justices directly on the spot over a centerpiece of his economic agenda …. Across three different courts, 15 judges have weighed Trump’s tariff maneuvers—and 11 of them, appointed by presidents of both parties, have found he acted without legal support. The most consequential of those decisions came late Friday from the U.S. Court of Appeals for the Federal Circuit, which rejected the tariffs and gave the president a mid-October deadline to appeal to the Supreme Court before the ruling takes effect …. To date, the administration has sought preliminary relief from the Supreme Court in more than 20 cases in which lower court judges temporarily blocked the White House’s plans. In many of them, the high court gave the administration what it asked for, in orders that provided little—if any—explanation …. Not only does Trump’s policy break with longstanding Republican Party orthodoxy in favor of free trade, his choice to implement it unilaterally rather than through legislation has created legal vulnerabilities that plaintiffs have been quick to exploit.” “Trump’s Tariffs and Supreme Court.” (Sept. 2, 2025).

“The president said he would seek expedited review of a federal appeals court’s ruling that found many of his administration’s tariffs to be illegal …. Trump added that a loss could put at stake the billions of dollars that the United States had collected in revenue, which it might be forced to pay back, and undermine his campaign to pressure companies into making more of their products domestically …. The decision enraged Trump, who savaged the appeals court as partisan in a series of posts on social media through the weekend …. Trump does has other tariff tools at his disposal, but they are more limited than the emergency powers that he has invoked to impose levies of between 10 percent and 50 percent on countries across the globe …. Trump does has other tariff tools at his disposal, but they are more limited than the emergency powers that he has invoked to impose levies of between 10 percent and 50 percent on countries across the globe. 232 of the Trade Expansion Act of 1962 typically require consultations and investigations that can take several months to carry out. That would prevent the president from arbitrarily raising and lowering tariffs. Mr. Trump has repeatedly used Section 232 to impose tariffs on specific products on national security grounds, including foreign steel and automobiles. Those duties were unaffected by the court ruling on Friday. The president is exploring taxes on imported pharmaceuticals, semiconductors and other products under the Section 232 authority. Other trade laws allow the president to issue sweeping tariffs, but only for a limited period of time. Section 122 of the Trade Act of 1974, for example, allows a president to impose duties of up to 15 percent globally for up to 150 days. Another provision of that law, Section 301, allows the president to issue broad tariffs in response to unfair trading practices, after first carrying out consultations and an investigation. Yet another long-unused statute, Section 338 of the Tariff Act of 1930, allows the president to impose tariffs of up to 50 percent on countries that have discriminated against the commerce of the United States.” “Trump and Tariff Appeal to Supreme Court.” New York Times (Sept. 3, 2025).

“Rather than the tariff policy, the key question is how much the courts will serve as a lasting check on an administration committed to materially reshaping the domestic and international economic orders. This issue is likely to be tested many times in the coming months and years, with an answer that has significant consequences for many around the world and remains uncertain.” “Significance of Tariff Ruling.” Financial Times (Sept. 4, 2025).

“Federal judges are frustrated with the Supreme Court for increasingly overturning lower court rulings involving the Trump administration with little or no explanation, with some worried. In rare interviews with NBC News, a dozen federal judges — appointed by Democratic and Republican presidents, including Trump, and serving around the country — pointed to a pattern they say has recently emerged …. Lower court judges are handed contentious cases involving the Trump administration. They painstakingly research the law to reach their rulings. When they go against Trump, administration officials and allies criticize the judges in harsh terms. The government appeals to the Supreme Court, with its 6-3 conservative majority. And then the Supreme Court, in emergency rulings (Ghost Docket), swiftly rejects the judges’ decisions with little to no explanation. Emergency rulings used to be rare. But their number has dramatically increased in recent years.” “Federal Judges Criticize Supreme Court.” NBC News (Sept. 4, 2025).

“Much of what is blamed on trade these days has more to do with technological changes, inadequate social policies, and macroeconomic imbalances in big nations such as China and the US. But the trading system itself does need reform. Built for interdependence not over-dependence, too many members today are overdependent on the US for market demand and on China for critical supplies. This is not a recipe for global resilience …. Another area where members need more creativity is the WTO’s dispute settlement system. It remains the only trade dispute resolution mechanism with global reach, although its appellate body has been paralysed since 2019. Under the radar, though, more and more members are still using the system to resolve disputes.” “Stress Test for Global Trade.” Financial Times (Sept. 5, 2025).

             Trump and Ukraine — Munich 2? — Beginning to Look Like it?

Just remember. After the sellout of the Czecks in Sept. 1938 of the Sudetenland, it only took the Nazis 6 months to take the rest of Czechoslovakia. They claimed the Sudetenland was German speaking. Then in another 6 months Nazi Germany invaded Poland — starting World War II. By the way Stalin’s Russia and Hitler’s Germany were allies. Remember the 1939 German-Russian Non-Aggression Pact. Appeasement is never good. ‘Peace for our time!’ as declared by Chamberlain didn’t work out — Lasted only a few months. Gave Germany and Russia time to plot the joint partition and demise of Poland. So much for Russian cooperation.

     As we wait for the federal courts to rule o the legality of Trump’s tariffs a few concerning voices are now being heard. One argues if the courts rule against Trump somehow that is bad because it will limit future presidents from acting. Of course, that the whole point. Another concern is that Trump has already killed the existing rules-based system. No, he hasn’t. Countries are fighting back as well as a wide range of American plaintiffs. Trump’s egomaniac efforts to destroy domestic and international rules will not stand. His weaponization of trade and outright banditry (often for his personal and family profit) is outrageous. It’s in no one’s interests. Courts need to declare Trump’s tariff actions as contrary to the Constitution. Stay tuned …………….

………………………………………………

“Judicial limits on the executive today will bind the hands of future presidents tomorrow …. We are days away from a major court ruling on a question that could decide the fate of the global economy: is Donald Trump’s trade war on the world legal? The courts are playing with fire …. The courts have repeatedly blessed these arrangements — until Trump, that is …. Among those representing anti-tariff plaintiffs is a Koch-funded law firm dedicated to “cutting the Administrative State down to size”, along with another libertarian outfit that has led attacks on labor unions and gun safety measures. These groups argue that Congress must prescribe in advance, in exhaustive detail, what specific threats presidents should address in the future, and how they should address them …. Yet libertarian legal doctrines like “non-delegation” and “major questions” are being marshalled not only against Trump’s tariffs, but also against labor …. Ultimately, the better resolution is for courts to step back.” “Trump and Tariff Litigation — Caution.” Financial Times (August 15, 2025).

“The global trading system as we have known it is dead. The World Trade Organization has effectively ceased to function, as it fails to negotiate, monitor, or enforce member commitments. Fundamental principles such as “most favored nation” status, or MFN ….  If Washington continues on its current course—defined by unilateralism, transnationalism, and mercantilism—the consequences will be grim …. Yet clinging to the old system and pining for its restoration would be deluded and futile. Nostalgia is not a strategy; nor is hope …. Trade policy has gotten both more credit and more blame than it deserves in the economic debates of recent decades. Critics of the system tend to conflate the effects of globalization with those of trade policy …. Yet such arguments have always been a tough sell politically, since the benefits of trade liberalization are broadly shared but largely invisible …. The United States thus finds itself the subject of a grand experiment in which long-standing assumptions about economics and global trade are being questioned, with significant near-term costs and uncertain long-term benefits. The Trump administration has, in effect, turned the political economy of trade on its head …. A key benefit of open plurilateralism is the flexibility it provides. Not being beholden to holdouts in a system.” “Rules-Based Trade System is Dead.” Foreign Affairs (Sept. / Oct. 2025).

“The Trump administration seems to be catching on to what has been clear for some time: The president’s claim of virtually unlimited, unilateral power to impose tariffs at whatever rate he chooses is in serious legal trouble. Hence the blustery letter Justice Department officials sent Monday to the U.S. Court of Appeals for the Federal Circuit, which heard arguments on President Donald Trump’s tariffs last month. The letter warned of a second Great Depression if the court pared back Trump’s tariff authority …. But the administration might be realizing that its constant invocations of foreign affairs aren’t sufficient to wave off judicial review. It should have worked with Congress and put its trade dealings on a stronger legal foundation. There’s still time to do so.” “Bessent and Tariffs.” Washington Post (Aug. 18, 2025).

“The post-American world economy has arrived. U.S. President Donald Trump’s radical shift in economic approach has already begun to change norms, behaviors, and institutions globally …. This means a worse world for almost everyone. Amid this change, however, China’s immediate economic environment will be the least altered …. There will be opportunities in this new landscape. But they will involve the U.S. economy less and less …. The Trump administration has paved paradise and put up a casino, with what will soon be an empty parking lot.” “New Economic Geography.” Foreign Affairs (Sept. – Oct. 2025).

“This new era will be shaped by weapons of economic and technological coercion—sanctions, supply chain attacks, and export measures …. The problem for the United States is that the Trump administration is gutting the very resources that it needs to advance U.S. interests and protect against countermoves …. U.S. President Joe Biden also used weaponization as an everyday tool of statecraft. His administration took Trump’s semiconductor export controls to a new level …. Such institutional decay is the inevitable consequence of Trumpism. In Trump’s eyes, all institutional restraints on his power are illegitimate. This has led to a large overhaul of the apparatus that has served to direct economic security decisions over the last decades …. The main problem is that as national security and economic policy merge, governments have to deal with excruciatingly complex phenomena that are not under their control.” “Weaponized World Economy.” Foreign Affairs (Sept. – Oct. 2025).

“It’s now commonplace to say Trump’s shakedowns of trading partners and corporations for tax revenue (even entirely leaving aside the issue of his personal wealth) resemble a mafia boss or a crony-capitalist dictator in a developing country. It’s actually worse than that …. It will take a long time for Trump’s roving banditry, particularly his trade deals, seriously to weaken he US economy. About half of its economy is made up of small and medium-size businesses. But the direction is clear.” “Trump’s Roving Banditry.” Financial Times (Aug. 21, 2025).

“After a slew of high-profile successes in the U.S. Supreme Court, the Trump administration found key parts of its agenda blocked in federal court this week, with judges criticizing its actions as “unlawful” and “unconstitutional.” Judges issued orders blocking the president’s use of the wartime Alien Enemies Act to speed deportations, the federal deployment of the National Guard for law enforcement purposes in California, the freezing of $2 billion in federal funds to Harvard, and the termination of protected legal status for hundreds of thousands of Haitians and Venezuelans …. The high court has granted the Trump administration’s emergency requests in 17 of 22 cases to date …. The ruling the president has expressed the most concern about was handed down on Aug. 29, when the U.S. Court of Appeals for the Federal Circuit found he had exceeded his authority when he imposed tariffs using an emergency powers statute.” “Courts Push Back on Trump.” NBC News (Sept. 6, 2025).

“Mr. Trump this week asked the Supreme Court to hear the legal challenge to his tariffs on a fast track. The best news for the economy would be if the Court takes up his challenge and finds them unconstitutional.” “Trump’s Tariffs – Unconstitutional.” Wall Street Journal (Sept. 6, 2025).

More so than any other president, Trump is using tariffs for non-economic reasons, primarily for national security — but in a very, very broad sense. In fact, he utilizes that rationale for many of his whimsical goals. This is even more pronounced now than during Trump 1.0. The impact of this will not be good for either the U.S. or the global trading system.

Now, he’s imposing an export tax on chips going to China. Guess no one in this administration ever heard of  Article I, Section 9, Clause 5,  of the Constitution which states: “No Tax or Duty shall be laid on Articles exported from any State.” This means the federal government is prohibited from imposing taxes or duties on goods exported from the United States.

I guess also the Trump administration has never heard of  Article 8(1) of the 1994 GATTT which states: “All fees and charges of whatever character … imposed by contracting parties on or in connection with importation or exportation shall be limited in amount to the approximate cost of services rendered and shall not represent an indirect protection to domestic products or a taxation of imports or exports for fiscal purposes.”

…………………………….

“President Donald Trump’s freewheeling use of tariffs as a tool of American power may have been more extensive than was publicly known, encompassing an array of national security goals as well as the interests of individual companies …. Administration officials saw trade talks as an opportunity to achieve objectives that went far beyond Trump’s oft-stated goal of reducing the chronic U.S. trade deficit ….  Trump views tariffs as the Swiss Army knife of diplomacy …. A list of supplemental negotiating objectives, U.S. officials acknowledged that potential accords would cover issues, including military basing.” “Trump’s Tariffs and National Security Goals.” Washington Post (Aug. 10, 2025).

“America has flourished under free trade. Don’t upend the world based on exaggerations and lies …. Massive changes in public policy that are transforming the world are being made based on a series of assumptions that are anecdotes, exaggerations and lies …. But the main point is that the churn in the American labor market is huge. These days, on average about 30 million Americans in the private sector lose their jobs annually, and a similar number gain jobs every year. During the years of the China shock, the United States actually gained more than 2 million jobs overall …. In an economy as large and diverse as the United States, there will always be places that are struggling. Part of what makes this a more pressing problem is that Americans now rarely move from places where the economy has collapsed in search of better prospects.  As Yoni Appelbaum notes in his book  Americans used to be highly mobile, always searching for better opportunities. But in recent decades, they have stayed put, hoping that better economic prospects would come to them.” “MAGA and Trade.” Washington Post (August 11, 2025).

“President Trump views tariffs as a toll that he alone gets to set for access to U.S. markets. Now he’s charging fees on U.S. companies for the purported privilege of exporting artificial-intelligence chips to China. Mark this as another step toward government control of private business …. The Commerce Department imposed restrictions on the sale of Nvidia and Advanced Micro Devices AI chips to China this spring in the name of protecting national and economic security …. In any case, this is an export tax that Congress didn’t authorize. Will AMD or Nvidia challenge the political extortion in court? ”“Trump’s Export Tax on Chips,” Wall Street Jornal (August 12, 2025).

“Trump’s zeal for dealmaking knows no bounds …. But in recent days his quid pro quo approach has taken an even more ominous turn …. Chipmakers Nvidia and AMD had agreed to give the US government 15 per cent of the revenues from chip sales in China, in order to obtain export licenses for the semiconductors. This (export tax) is unprecedented: no US company has ever agreed to pay a portion of their revenues to obtain export licensees The legally dubious arrangement underscores that, under Trump, corporate America has entered an era in which business decisions will be dictated less by the invisible hand of the market and more by the heavy hand of the White House …. The cost of Trump’s transactionalism is clear: trading an economy grounded in the rule of law for one ruled by arbitrary deals. Such a system rewards a powerful few, punishes the small and unconnected, and ultimately erodes the stable foundations on which America’s prosperity has long rested. “Trump’s Pay to Play Economy.” Financial Times (August 12, 2025).

“The president has threatened more tariffs on Russia and its trading partners and has imposed harsh ones on India and Brazil to try to sway matters of war and politics …. The Trump administration is not the first to impose tariffs on nations for reasons unrelated to trade policy. During the Napoleonic Wars, the United States wielded tariffs against Britain and France for geopolitical reasons …. And after Russia’s full-scale invasion of Ukraine in 2022, he added, the Biden administration imposed tariffs on imports of Russian aluminum …. Although U.S. courts might eventually rule against Mr. Trump’s use of emergency authorities to impose tariffs many businesses around the world have already felt the economic toll.” “Tariff Threats and Diplomacy. New York Times (Aug. 12, 2025).

“ Solicitor General John Sauer and Assistant Attorney General Brett Shumate made this week in a letter to the Court of Appeals for the Federal Circuit. The judges must give the President unilateral power to impose tariffs on any country at any time, or the end is nigh. Better buy gold and put your cash in a mattress. “If a Radical Left Court ruled against us at this late date, in an attempt to bring down or disturb the largest amount of money, wealth creation and influence the U.S.A. has ever seen, it would be impossible to ever recover, or pay back, these massive sums of money and honor,” Mr. Trump wrote Friday on Truth Social. “It would be 1929 all over again, a GREAT DEPRESSION!” …. The letter to the Federal Circuit judges illustrates the Trump style: try to intimidate by exaggerating the impact of a decision he doesn’t like and suggest he’ll blame the judges. We trust the judges won’t fall for it. If they do rule against the President and he appeals, we hope the Supreme Court quickly takes the case. “Trump’s Tariff Letter.” Wall Street Journal (August 13, 2025).

“Trump’s top lawyers  filed a letter on Monday with the U.S. Court of Appeals for the Federal Circuit, which is considering a legal challenge initially brought by small businesses and states. In a letter signed by D. John Sauer, the U.S. solicitor general, the government said a ruling against tariffs would undermine the president on foreign policy, jeopardize his recent trade deals and damage the U.S. economy …. For now, at least, the Trump administration’s plea to the courts illustrated the stakes for the president’s trade strategy, which hinges on his ability to impose or threaten tariffs on a whim, and without the need to obtain the approval of Congress …. The small businesses that sued the government responded on Tuesday. Lawyers for those firms, including VOS Selections, a wine importer in New York, told the court that the president did indeed have other powers to achieve his trade goals — and could, for example, “submit agreements for congressional approval.” “Trump Warns Court on Tariff Case.” New York Times (August 14, 2025).

A Legal Strategy for Confronting Trump’s Tariffs

Stuart S. Malawer, JD, Ph.D.*

Under Trump, Biden, and now Trump again, U.S. trade policy has veered away from its traditional post-World War II approach—shifting from multilateralism to a focus primarily on national and unilateral concerns. At the center of this shift has been the unprecedented tariff increases by President Trump and a sharp rise in tensions with China. Major litigation has been filed against the Trump tariffs and may prove soon fatal to them.

The average U.S. tariff level in 2017 (at the start of Trump 1.0) was 1.1%; it is now 18.3%. His policy of ‘tariffs by threats’ are highlighted this week by threats to impose 50% tariffs on India, threat to impose broad reciprocal tariffs worldwide, threat to impose 100% tariffs on semiconductor chips and pharmaceuticals and additional tariffs on China. Most recently, President Trump threatened the federal courts not to overrule them. Just astonishing!

Geopolitical risk has become one of the most important factors in the formulation of U.S. trade policy and multinational corporate strategy. President Trump aggressively enacted tariffs based on national security under Section 232 of the 1962 Trade Expansion Act and based upon his national emergency powers under the 1977 International Emergency Economic Powers Act (IEEPA). Most recently, President Trump increased tariffs on India and Brazil to 50% for purely political reasons – primarily because of dissatisfaction with their freely-elected leaders.

President Trump has interpreted his trade and national emergency powers very broadly. Under Section 232 the president may “adjust imports of goods if it is determined that these imports threaten to impair national security.” IEEPA allows “the president to regulate international commerce after declaring a national emergency in response to any unusual and extraordinary threat to the United States which has its source in whole or substantial part outside the United States.”

What is not generally understood is the very broad range of trade statutes that govern the imposition of new tariffs by the president. The Congress has delegated much authority to the President, but the President needs to act within that delegation of authority. Often, the president relies upon more than one statute. Among the more important statutes are those relating to antidumping duties, countervailing duties, safeguard provisions (Section 201), retaliatory actions (Section 301), national security (Section 232), national emergencies (IEEPA), infringement of patents (Section 337), market disruption (Section 406), and agricultural imports (Section 22), among others.

Crucial to the debate over presidential authority is the basic fact that Congress has the exclusive constitutional power to regulate international trade and authorize tariffs (Article I, Section 8, Clause 3). The president has no independent authority over tariffs or trade. Congress delegates this authority to the president, who must act strictly within the bounds of that delegation. This has become a central issue in domestic litigation over a range of tariff actions taken by President Trump.

Unfortunately, Congress has failed to restrict President Trump’s excessive tariff measures. However, court cases have recently been filed in the U.S. Court of International Trade—a specialized federal court located in New York City—challenging several presidential actions. This court has ruled against the president. The case concerning reciprocal tariffs is currently on appeal to the U.S. Court of Appeals for the Federal Circuit. So far, that court has not been impressed by the Trump administration’s arguments.

Additional trade-related cases have been filed in other federal district courts, including the U.S. District Court in Washington, D.C., which has also ruled against the administration. The other cases have been transferred to the U.S. Court of International Trade.

In my view, this kind of domestic litigation may be a principal means of curbing excessive executive action in the trade area.

Surprisingly, these lawsuits filed challenging President Trump’s tariffs have been initiated by small companies and supported by conservative Republican megadonors, conservative attorneys, and several states—not by multinational corporations nor foreign entities. Most of these legal actions challenge the president’s reliance on national emergencies under IEEPA, asserting that the tariffs issued under this statute are invalid. They contend that the statute does not authorize use of tariffs, whatsoever. They argue also that no national emergency exists.

In assessing these claims, appellate courts need to closely examine whether the national emergency rationale is legitimate, whether the statute in question actually permits tariffs, as well as the actual existence of a national security threat. A broader constitutional question is whether some of these actions fall within the president’s expansive diplomatic and foreign affairs powers, where a President does possess broad authority under Article II of the U.S. Constitution.

It is well known that the President Trump has claimed sweeping executive authority on non-trade issues such as immigration and border control. Numerous courts have ruled against the administration. In fact, hundreds of cases have been filed on a wide range of issues, and the administration has lost many at the preliminary stages. Most notably, the administration’s reliance on the 1798 Alien Enemies Act to control immigration has been firmly rejected.

So, where does this leave firms and our trading partners in confronting the Trump administration’s historic use of tariffs—a shift that has reversed U.S. tariff policy back to the Depression-era 1930s—and its excessive reliance on economic threats, which has undermined the post-war international system the U.S. was the leader in building?

There is always the option of litigating trade disputes within U.S. federal courts—even though the Supreme Court has recently used the shadow docket to uphold various presidential actions, at least temporarily. Foreign states and foreign corporations, as well as domestic corporations and other entities, may very well have standing to challenge these actions in U.S. courts.

Countries should also continue to pursue litigation or arbitration through the WTO’s dispute resolution system, despite its weakening over the years due to U.S. resistance. China, the U.S., the EU, and the Russian Federation have previously litigated WTO cases with some notable success. A rules-based global trading system remains in everyone’s best interest.

As an international trade lawyer and professor with a focus on national security, I would personally like to see both China and the U.S. rely more on U.S. domestic legal procedures and WTO mechanisms to manage their trade relations.

The use of national security as a legal justification for trade actions has already been addressed by both federal courts in the U.S. and the WTO. Yes, this kind of domestic and international litigation poses challenges. But it may well offer a viable path forward. There is no downside in trying.

In conclusion, tariffs are no longer an obscure technical issue. Nor are they solely economic. Tariffs have become geopolitical tools. For President Trump, they are instruments to impose his will on other nations—whatever the reason or motivation. What is needed now is a willingness among government and private leaders to pursue a legal strategy.

My belief is that rational actors exist in many countries. Actors who understand that their national interest includes a more effective and fair trading system. It is up to these leaders to work toward better trade relations within a legal framework that promotes the welfare of nations and their people.

From my experience—over fifty years of teaching international trade, national security, and international law—and working with students, foreign scholars, and policymakers around the world, I know that goodwill, combined with a sound legal strategy, might lead to a workable solution and a return to normalcy.

……………………

*Dr. Stuart S. Malawer, JD, Ph.D., is Distinguished Service Professor of Law and International Trade Emeritus at George Mason University (Schar School of Policy and Government). He is the author of books on international business, international trade, international law, and national security. He is the founder and former Director of the Graduate International Transactions Program at George Mason University. He is a member of the Bars of the Commonwealth of Virginia and the U.S. Court of International Trade.