Don't get too excited if SCOTUS decides tariff's imposed under IEEPA are illegal.
Given the majority's penchant for giving the felon whatever he wants, I thought it was almost a given that they would reverse the lower court decisions that tariffs imposed under the authority of the International Emergency Economic Powers Act (“IEEPA”) are unlawful.
After hearing commentary on how the hearing went on Thursday, it sounds like they may uphold lower court findings. That sure sounded great to me.
Unfortunately, as I poked around some more, a hole got poked into my balloon of cautious optimism. It is sounding like holding IEEPA tariffs to be illegal may not make much difference given the lawless man we are dealing with. There will be a lot of future litigation as the felon goes to almost any lengths to hold onto tariffs collected under IEEPA and keep those tariffs in place with new illegal claims he has the power to do it under some other inapplicable statute.
There are a variety of articles out there touching on this. The most helpful thing I came across was a Nov 4 Alert from the law firm Covington & Burling.
https://www.cov.com/en/news-and-insights/insights/2025/11/dont-count-on-immediate-ieepa-refunds-what-president-trump-might-do-if-scotus-throws-out-ieepa-tariffs
Some bits from it:
They go on to review two possible courses of unilateral action:
First, the Administration may seek to avoid issuing refunds by arguing that at least some of the tariffs imposed under existing IEEPA Executive Orders (“EOs”) nonetheless remain effective, as to both past and future imports, because they are justified by other authorities not explicitly identified in the EOs—particularly those not requiring predicate agency action. This strategy would leverage the fact that the President is not himself subject to the Administrative Procedure Act (which requires agencies to follow certain procedural and notice requirements), and generally need not explain his decision-making except as required by statute. Though there appears to be little precedent for such a strategy, and it would face obstacles, the Administration may at least delay—and perhaps limit—refunds by pursuing it...
(more detail follows)
B. The President May Rely on Tariff Statutes Outside IEEPA to Issue New Executive Orders to Apply Tariffs Retroactively
First, the Administration may seek to avoid issuing refunds by arguing that at least some of the tariffs imposed under existing IEEPA Executive Orders (“EOs”) nonetheless remain effective, as to both past and future imports, because they are justified by other authorities not explicitly identified in the EOs—particularly those not requiring predicate agency action. This strategy would leverage the fact that the President is not himself subject to the Administrative Procedure Act (which requires agencies to follow certain procedural and notice requirements), and generally need not explain his decision-making except as required by statute. Though there appears to be little precedent for such a strategy, and it would face obstacles, the Administration may at least delay—and perhaps limit—refunds by pursuing it....
(more detail follows).
They note that
Alternatively, the President could attempt to work with Congress to retroactively authorize the IEEPA tariffs.
After the Senate vote against Tariffs, I don't imagine there will be much appetite to pass laws to retroactively legalize the illegal tariffs.
Don't get me wrong. Having our position that the administration is imposing tariffs in violation of the law vindicated is a very good thing. There will be consequences of these tariffs being deemed illegal that will further weaken and damage the felon. All good on that!
I'm just feeling a little deflated at the prospect of the coming battles as he breaks new laws to keep his precious tariffs in place.
The majority on SCOTUS are well aware that he'll just refuse to do anything he doesn't want to do and will come up with new flimsy covers that will ultimately declared unlawful. That may be why they are willing to rule against him -- because they figure they aren't actually derailing the advance of his diplomatically and economically devastating and illegal agenda.
= new reply since forum marked as read
