Introduction

On September 9, 2025, the Supreme Court agreed to expedited review of two appeals concerning the legality of the Trump administration's tariffs issued under the International Emergency Economic Powers Act (IEEPA), including fentanyl and immigration-related tariffs on products of Canada, Mexico, and China (Trafficking Tariffs), and the reciprocal tariffs imposed on products of most countries (Reciprocal Tariffs) (together with the Trafficking Tariffs, the IEEPA Tariffs). Recent court decisions, including the Court of Appeals for the Federal Circuit's decision finding that the IEEPA Tariffs exceeded the president's authority, represent a significant setback for the administration's efforts to use the executive's emergency power under IEEPA to impose tariffs.

Despite the Federal Circuit's decision, and similar holdings from the district courts, the IEEPA Tariffs remain in effect pending review by the Supreme Court. If the Supreme Court overturns the lower court decisions on this issue, the IEEPA Tariffs will remain in effect. The Supreme Court could also remand without deciding whether the tariffs are legal, leaving the lower courts to continue addressing them on a case-by-case basis. Even if the IEEPA Tariffs are struck down by the Supreme Court, importers will face an uncertain timeline to recover funds already collected by the government. Importers therefore need to be proactive in preserving their rights while these cases are pending.

Importers should take steps to maximize their chance of obtaining tariff refunds. This includes closely monitoring the liquidation of entries on which IEEPA Tariffs were paid, asking U.S. Customs and Border Protection (CBP) to extend the liquidation timeframe for those entries, and filing protests when the entries are liquidated.

What Tariffs Are at Issue?

The plaintiffs have sued President Trump and other administration officials in the Court of International Trade (CIT) and the District Court for the District of Columbia for improperly invoking IEEPA to impose tariffs on products from Mexico (Executive Orders (E.O.) 14194 and 14198), China (E.O.s 14195 and 14228), and Canada (E.O. 14197) based on presidential declarations of national emergencies concerning drug trafficking and migration (the aforementioned Trafficking Tariffs). The cases also challenge the universal reciprocal tariff program based on a presidential declaration of national emergency concerning the trade deficit (E.O. 14257) that imposed a baseline 10 percent tariff on most countries and the country-specific rates that followed (the aforementioned Reciprocal Tariffs). The pending litigation also addresses subsequent amendments to the IEEPA Tariffs programs under separate executive orders.

There are also several other recent tariff measures, including some levied under IEEPA, that have not been directly challenged under the current proceedings. These tariffs include the sectoral tariffs on steel, aluminum, automobiles, automobile parts, and copper, which were imposed under section 232 of the Trade Expansion Act of 1962, and section 301 tariffs on certain China-origin goods imposed under the Trade Act of 1974. 

Further, the plaintiffs in the proceedings before the courts have not explicitly challenged several tariffs issued under IEEPA, including the 40 percent tariff on Brazil-origin goods and the 25 percent tariff on India-origin goods. However, those tariffs are similarly at risk of being overturned if the Supreme Court determines that IEEPA does not authorize issuance of tariffs.

The table below lists all Trump administration tariffs in chronological order.

What Have Federal District Courts Said About IEEPA Tariffs?

Two district court decisions have addressed the legality of IEEPA tariffs. 

First, in V.O.S. Selections, Inc. v. Trump, 1:25-cv-00066 (Ct Int'l Trade, Apr. 14, 2025), the CIT held that IEEPA does not grant the president authority to "impose unbounded tariffs" (with respect to the Reciprocal Tariffs) or to impose tariffs on lawful imports in response to an unrelated trafficking and crime problem (with respect to the Trafficking Tariffs). The CIT ordered a universal, permanent injunction on the challenged tariffs, which was stayed by Federal Circuit during the government's appeal and remains stayed now as the case proceeds to the Supreme Court. The CIT's decision was recently upheld by the Federal Circuit in the V.O.S. Selections decision discussed below.

Second, a federal district court in Washington, DC, similarly held that the IEEPA Tariffs exceed the president's authority. In Learning Resources, Inc. v. Trump, No. CV 25-1248 (RC), 2025 WL 1525376, at *6 (D.D.C. May 29, 2025), the court held that IEEPA does not grant the executive the authority to impose tariffs, and therefore, that the government's tariffs are in violation of the non-delegation doctrine and separation of powers, as well as the Administrative Procedure Act (APA) – a ruling that goes still further than the CIT in invalidating the IEEPA Tariffs. The district court also found that the CIT did not have jurisdiction to address the legality of the tariffs. 

Both decisions are now on appeal and have been consolidated for joint review by the Supreme Court.

What Have the Courts of Appeals Decided?

On August 29, 2025, in a per curiam decision signed by seven of the 11 judges who heard the case, the Federal Circuit affirmed the CIT's decision while vacating the universal permanent injunction on the IEEPA Tariffs and remanded the case for further evaluation of whether a universal injunction is proper.
 
In upholding the CIT's decision striking down the IEEPA Tariffs, the panel emphasized that the power to levy taxes, including tariffs, is expressly delegated to Congress under Article 1 § 8 of the Constitution. Further, for much of the nation's history, statutory delegations of tariff authority to the president were highly limited, involving only the authority to reduce or increase tariff rates through international agreements, rather than the authority to create new tariffs from whole cloth. 

Then, addressing the text of IEEPA, the panel noted that, although IEEPA "bestows significant authority on the President to undertake a number of actions in response to a declared national emergency, [] none of these actions explicitly include the power to impose tariffs, duties, or the like, or the power to tax." 

In contrast, the panel noted that other trade laws that grant authority to issue tariffs have done so explicitly, in "clear and precise terms." And despite the fact that IEEPA was promulgated nearly 50 years ago, and has been invoked frequently by presidents, no past president has used IEEPA to impose tariffs on imports or adjust tariff rates. Taking these facts together, the panel explained 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 over-all structure which makes clear that Congress is referring to tariffs. This is no surprise, as the core Congressional power to impose taxes such as tariffs is vested exclusively in the legislative branch by the Constitution; when Congress delegates this power in the first instance, it does so clearly and unambiguously.

Because IEEPA has no such unambiguous delegation of authority, the court concluded that the administration's tariffs issued under IEEPA were contrary to statute, and as such, unlawful.

Notwithstanding this decision, the panel vacated the universal permanent injunction on enforcing IEEPA Tariffs that was ordered by the CIT, remanding the issue for further consideration in light of the Supreme Court's June decision in Trump v. Casa. In that decision, the Supreme Court ruled that universal injunctions "likely exceed the equitable authority that Congress has granted to federal courts." The Federal Circuit therefore directed the district court to determine whether a universal injunction was permitted under the equitable principles addressed in Casa. 

While joining in the majority decision, Judges Cunningham, Lourie, Reyna, and Stark also submitted an additional opinion stating their view that "IEEPA does not authorize the President to impose any tariffs" at all. The concurrence based this conclusion on the plain language of IEEPA, finding that any tariff issued by the president under IEEPA would exceed Congress's delegation of authority.

Finally, Judges Taranto, Prost, Chen, and Chief Judge Moore dissented, stating the view that "IEEPA's language, as confirmed by its history, authorizes tariffs to regulate importation" under statutorily defined conditions, including "unusual and extraordinary threat, having foreign sources, to the national security or foreign policy or economy of the United States, the threat declared as a national emergency..." According to the dissenting judges: "IEEPA embodies an eyes-open congressional grant of broad emergency authority in this foreign-affairs realm, which unsurprisingly extends beyond authorities available under non-emergency laws," and includes authority to issue tariffs like those in question here.

The Court of Appeals for the DC Circuit was set to hear oral arguments in Learning Resources on September 30, 2025. However, both plaintiffs and the government have agreed that the DC Circuit should hold the case in abeyance pending the Supreme Court case.

What Are the Next Steps in the IEEPA Tariff Appeals?

On September 9, 2025, the Supreme Court granted the government's request for expedited review of the V.O.S Selections decision. The Supreme Court also consolidated the DC and Federal Circuit cases and set a deadline of October 30, 2025, for completion of all briefing. Oral argument is calendared the first week of November 2025 and a decision is likely to follow shortly thereafter. In light of this order, the Federal Circuit's ruling in V.O.S. Selections is stayed automatically. The DC Circuit is also likely to stay proceedings in Learning Resources. 

Despite lower court orders finding the IEEPA tariffs unlawful, those tariffs will remain in effect until a final determination is reached. Further, as noted above, the appeal before the Supreme Court does not apply to tariffs issued under other laws, such as the 50 percent tariffs on imports of steel and aluminum from other trading partners, which were issued under section 232 of the Trade Expansion Act of 1962.

What Are Possible Outcomes to this Litigation? 

There are several possible outcomes to the ongoing tariffs litigation, each with different implications for importers. Here are a few of the potential paths forward:

• The Supreme Court could find that the IEEPA Tariffs are valid and imposed within the president's emergency authority under IEEPA. If it does, we expect the IEEPA Tariffs to continue under their existing parameters and importers will be required to pay these duties on all imports until the IEEPA Tariffs are lifted.
• The Supreme Court could remand one or both cases without deciding the legality of the IEEPA Tariffs challenged on appeal. Although IEEPA had never been used to impose tariffs before the current administration, the Supreme Court may find that IEEPA authorizes the executive to regulate trade by imposing tariffs, without deciding specifically whether the administration's tariffs are lawful. If it does so, the Supreme Court may use this opportunity to establish parameters that provide boundaries on the use of IEEPA's authority. These parameters could include, for example, being narrowly tailored to fit the stated emergency or further defining what qualifies as an "usual and extraordinary threat." With these guiderails in place, the Court could remand the issue to the lower courts to address whether the IEEPA Tariffs satisfy the criteria.
   
  The Supreme Court could also avoid deciding the legality of the IEEPA Tariffs altogether by deciding the case solely on a jurisdictional basis. The Supreme Court may find that the CIT holds exclusive jurisdiction (or conversely, that the DC district court has general jurisdiction) over the tariffs matter and remand these cases to the appropriate lower court without making a finding on the merits. This is a key point where the Federal and DC Circuits differed (and a key reason why the matters have been consolidated to appear together before the Supreme Court): The Federal Circuit determined that the CIT had exclusive jurisdiction to review litigation related to the validity of tariffs, while the DC district court found that the CIT did not have any jurisdiction because the executive's powers under IEEPA did not include "the power to tariff." A jurisdictional ruling could side-step the merits of the IEEPA Tariffs but would have the effect of upholding the lower court's holding. From there, the lower court would have to determine the scope of equitable relief appropriate under the standard in Trump v. Casa.
• The Supreme Court could hold that IEEPA does not grant the president the power to enact any tariffs. As noted above, the Federal Circuit held that only the tariffs specifically challenged in the V.O.S. Selections litigation were unlawful; however, the concurrence went further and held that IEEPA does not authorize the imposition of any tariffs. If the Supreme Court follows the concurrence, CBP would be required to refund the IEEPA Tariffs and end further collections. 
   
  The government has argued that this outcome would impose an extraordinary burden. An order striking down the IEEPA Tariffs would also call into question the trade agreements made with other nations in response to the recently enacted tariffs, particularly the Reciprocal Tariffs. In an August 11, 2025, letter to the Federal Circuit, the government noted that "[t]he President believes that our country would not be able to pay back the trillions of dollars that other countries have already committed to pay, which could lead to financial ruin," including "a 1929-style result." 
• The Supreme Court could hold that some (but not all) of the IEEPA Tariffs are illegal. There are several tariffs under consideration, and the Court may find that only certain tariffs – or certain elements of the IEEPA Tariffs – are valid under IEEPA. In that case, the remaining portions would be struck down, and the government would no longer have authority to collect tariffs outside those authorized by the Supreme Court's decision. CBP would also have to find a mechanism to refund previously collected, but now invalidated, tariffs.

If Plaintiffs Win On Appeal, Will Importers Be Able to Collect Refunds for Tariffs Already Paid?

If the Supreme Court finds that some or all of the IEEPA Tariffs were implemented unlawfully, the government will face demands to refund the IEEPA Tariffs that were already collected, which could amount to hundreds of billions of dollars. 

The government has argued that this outcome would create an extraordinary burden, but it has acknowledged that if the IEEPA Tariffs are overturned, the tariffs already paid would need to be returned. On September 7, 2025, Secretary of the Treasury Scott Bessent agreed that "[the Treasury] would have to refund roughly half the tariffs, which would be a major blow to the Treasury." Bessent also stated that "[i]f the court rules that way, we'll have no choice but to comply." 

However, there is significant uncertainty about how the government would implement such refunds, what procedural hurdles importers would face in claiming the funds they are owed, and how long it would take to receive any payments. Further, the Supreme Court's decision may not resolve the legality of all IEEPA Tariffs, leaving continued uncertainty about the payment obligations for any tariffs that remain in effect. In light of these factors, importers are advised to take steps to protect their ability to obtain tariff refunds.

How Can Importers Protect Their Ability to Recover Tariffs They Have Already Paid?

Given the myriad paths forward in the IEEPA Tariffs litigation, importers should consider taking steps to preserve their rights and ability to claim timely refunds.

• Track entry liquidations. While Supreme Court review is pending, importers should ensure that they have an internal process to track the liquidation (i.e., the final calculation of duties) of entries on which IEEPA Tariffs were paid. Importers are encouraged to maintain records of all documents associated with those entries, including entry summaries, commercial invoices, and proof of payments made to CBP.
• Request extensions to pending liquidations. 19 U.S.C § 1504 requires CBP to liquidate entries within one year of the date of entry. However, under statute, this period can be extended by up to three years if an importer requests such an extension and shows good cause. An extension would give CBP additional time to apply the final legal outcome to the entries. It would also delay the start of 180-day statutory timeline to file protests on liquidated entries.
• File protests if extensions are denied. Entries are typically liquidated 314 days from the date of entry. Because the tariffs were imposed earlier this year, most affected entries have not yet liquidated. When they do, and if extensions to pending liquidations are not granted, importers should consider filing protests to challenge CBP's liquidation of the entries. Importers should also consider requesting that the protest review be suspended until the IEEPA cases reach a final merits-based resolution. 
• If protests are denied, consider legal action. If the Supreme Court grants a favorable outcome, but does not establish a process for refunds, and protests are denied, then importers that have paid IEEPA Tariffs may consider filing their own lawsuits challenging the tariffs and seeking reimbursement. Pending the scope of relief resulting from this litigation, importers may want to keep an eye on class action lawsuits that potentially unfold that challenge the grounds of these IEEPA tariffs. 

There are many possible paths forward and a decision by the Supreme Court may not be the final word in IEEPA Tariffs litigation. It is important that the import community closely follow the developments in this litigation and take action to preserve the ability to seek refunds if the IEEPA Tariffs are found to be unlawful.

Miller & Chevalier frequently advises clients on issues related to imports and tariffs, including on coordinating responses to the IEEPA Tariffs addressed in this article. 

For more information, please contact:

Richard A. Mojica, rmojica@milchev.com, 202-626-1571

Bradley E. Markano, bmarkano@milchev.com, 202-626-6061

Julia M. Herring, jherring@milchev.com, 202-626-1486

Brittany Huamani, bhuamani@milchev.com, 202-626-5911

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