The Supreme Court has agreed to hear the challenge to Trump’s tariffs on a highgly expedited schedule.
You will recall that on August 29, 2025, the Court of Appeals for the Federal Circuit, which has jurisdiction over international trade disputes, among other things, had ruled in a 7-4 split that the tariffs exceeded Trump’s authority under the ’emergency’ provisions of congressional legislation. The effect of the ruling was put on hold until October 14 to give the government time to try to convince the Supreme Court to take the case.
The government filed a petition for SCOTUS to grant certiorari and to expedite hearing the case:
Pursuant to Rule 21 of the Rules of this Court, the Solicitor General, on behalf of the President of the United States and other petitioners, respectfully requests that this Court expedite resolution of this case to the maximum extent feasible, given the enormous importance of quickly confirming the full legal standing of the President’s tariffs under the International Emergency Economic Powers Act (IEEPA), Pub. L. No. 95-223, Tit. II, 91 Stat. 1626, and the urgent need for swift resolution. The en banc Federal Circuit’s erroneous decision has disrupted highly impactful, sensitive, ongoing diplomatic trade negotiations, and cast a pall of legal uncertainty over the President’s efforts to protect our country by preventing an unprecedented economic and foreignpolicy crisis.As Secretary of the Treasury Scott Bessent explains in the enclosed declaration, the en banc Federal Circuit’s 7-4 ruling that the tariffs are unlawful, “though judicially stayed, raises legal uncertainty about [the President’s IEEPA] tariffs that gravely undermines the President’s ability to conduct real-world diplomacy and his ability to protect the national security and economy of the United States.” Bessent Decl. ¶ 3. “The recent decision by the Federal Circuit is already adversely affecting ongoing negotiations. World leaders are questioning the President’s authority to impose tariffs, walking away from or delaying negotiations, and/or imposing a different calculus on their negotiating positions.” Id. ¶ 7. In addition, “[t]he longer a final ruling is delayed, the greater the risk of economic disruption.” Id. ¶ 8. “For example, delaying a ruling until June 2026 could result in a scenario in which $750 billion-$1 trillion in tariffs have already been collected, and unwinding them could cause significant disruption.” Ibid. Moreover, “[t]he frameworks for trade agreements already in place contain additional provisions whereby the trade partners agree to significant purchases from and/or investments in the United States.” Id. ¶ 9. “If these agreed upon frameworks were unwound and the investments and purchases had to be repaid, the economic consequences would be catastrophic.” Ibid. 3To that end, the government has proposed that the Court adopt a schedule with a decision on the petition for a writ of certiorari by September 10, 2025, and, upon a grant of certiorari, expedited consideration of the merits to the maximum extent feasible. Respondents have indicated that they will acquiesce in, or not oppose, certiorari ….
The SCOTUS Order scheduling the case provides:
ORDER IN PENDING CASES 24-1287 ) LEARNING RESOURCES, INC., ET AL. V. TRUMP, PRESIDENT OF U.S., ET AL. ) 25-250 ) TRUMP, PRESIDENT OF U.S., ET AL. V. V.O.S. SELECTIONS, INC., ET AL.The petition for a writ of certiorari before judgment in No. 24-1287 is granted. The motion to expedite and the petition for a writ of certiorari in No. 25-250 are granted. The cases are consolidated, and a total of one hour is allotted for oral argument. Respondents in No. 24-1287 and petitioners in No. 25-250 shall file an opening brief on the merits on or before Friday, September 19, 2025. Any amicus curiae briefs in support or in support of neither party shall be filed on or before Tuesday, September 23, 2025. Petitioners in No. 24-1287 and respondents in No. 25-250 shall file response briefs on the merits on or before Monday, October 20, 2025. Any amicus curiae briefs in support shall be filed on or before Friday, October 24, 2025. A reply brief shall be filed by Thursday, October 30, 2025. The cases will be set for argument in the first week of the November 2025 argument session.
So what is likel to happen in SCOTUS? I discussed my thoughts in an appearance on the Jesse Kelly show not too long ago:
(Transcript auto-generated, may contain transcription errors, lightly edited for transcript clarity)
Kelly (00:42)Okay. Tariffs, no tariffs; this or that… I don’t know. We’re not getting into that right now. What I want to know is why is this going to the Supreme Court? What are the laws? What’s the legality of all this? Joining me now is William Jacobson, Cornell University law professor, founder of Legal Insurrection. Okay, why is this a court issue? What’s happening? Why is it at the Supreme Court? Please make us smarter.
WAJ (01:09)Sure. Well, the authority that President Trump invoked for his tariffs was an emergency authority that the president has to deal with various international emergencies. And what the court ruled was that even if the statute applied–even if he properly invoked an emergency, the statute doesn’t provide for tariffs. So he did something that is beyond his authority under the statute, assuming the statute even applies.So that was really the ruling, and the Supreme Court’s probably going to have to decide, because this was a ruling by the Court of Appeals for the Federal Circuit. We don’t talk about the Federal Circuit very much. It’s the Circuit that has jurisdiction over international trade disputes, among other things. So this will go, I presume, to the Supreme Court. The Supreme Court’s going to have to rule. Assuming a president properly invoked these emergency powers, do the emergency powers include tariffs when tariffs are not mentioned in the statute? And that’s going to be the issue.Kelly (02:12)Okay. Bill, you’re on the Supreme Court. Do they?WAJ (02:18)I think it’s within the President’s power. There is enough language in the statute. The statute does not purport to be exclusive to the remedies listed in the statute, and the President has some flexibility. So, I think he’s going to win in the Supreme Court, but I don’t have a high degree of confidence in that I might on other issues that you and I sometimes talk about. I think it’s going to be a close call. I think ultimately the Supreme Court will rule that the statute gives the President enough authority to fashion remedies to deal with the emergency, and that tariffs can be part of it.
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