Breibart Business Digest: A Judicial Roadblock—But Not the End of Trump’s Tariff Power

The Trade Court Tells Trump He Can’t Use Emergency Powers to Impose Tariffs

The Court of International Trade (CIT) on Wednesday issued a ruling in V.O.S. Selections v. United States that the anti-tariff establishment is already crowing about. One Washington Post columnist called it “Trump’s biggest judicial setback.”

But they may want to curb their enthusiasm. This decision is not the final word on President Trump’s authority to impose tariffs, and the legal reasoning behind it is unlikely to stand unchallenged. Indeed, on Thursday, the Federal Circuit stayed the order, leaving Trump’s tariffs in place for now.

At issue was President Trump’s use of the International Emergency Economic Powers Act (IEEPA) to impose tariffs on a wide range of imports, citing the fentanyl crisis and broader economic imbalances as national emergencies. The court struck the tariffs down, holding that IEEPA doesn’t authorize the president to impose tariffs—and if it did, it would likely violate the nondelegation doctrine, a long dormant constitutional principle that says Congress cannot hand its legislative powers over to the executive branch without clear limits or guidance.

What the Court Actually Said

The Court of International Trade said the president’s powers under IEEPA may allow sanctions, asset freezes, or restrictions on financial transactions, but not the imposition of tariffs, which are a revenue-raising tool that the Constitution reserves to Congress. The decision relied heavily on the text of the statute, which never mentions tariffs, and invoked the nondelegation doctrine to underscore its reading.

This is not a particularly radical or far-fetched interpretation of the statute. The Trump administration is the first to seek to impose tariffs under IEEPA and its legal and trade advisors knew they were attempting a novel use of IEEPA. They knew this would be challenged in the courts and that there was a good chance that they could lose the initial legal skirmishes.

It also should be said that the Court of International Trade is the right court to hear this kind of case. This isn’t an example of an activist district court overreaching its jurisdiction to impose a nationwide order blocking Trump policy. And the Court of International Trade is not known for having a particular political bent. Much of what it does is highly technical and rarely ends up in the headlines.

But that hardly makes the court infallible. In Transpacific Steel LLC v. United States, the Court of International Trade struck down President Trump’s 2018 order doubling the tariff on steel imports from Turkey. The court said the president had exceeded his statutory authority under Section 232 of the Trade Expansion Act of 1962 and failed to follow the proper procedures. At the time, the decision was celebrated by anti-tariff voices as a bold judicial check on executive power in trade.

The Federal Circuit, however, overturned that ruling a few years later. It held that Section 232 grants the president broad discretionary authority—including the power to raise tariffs beyond the levels initially announced. It also dismissed the procedural claims, ruling that the president is not required to seek new Commerce Department findings before adjusting tariff levels.

In its decision this week, the court emphasized that allowing the president to impose tariffs under IEEPA—with no standards, limitations, or procedural requirements—would amount to an unconstitutional delegation of legislative authority. In effect, it said: if IEEPA really does authorize tariffs, it would be struck down because the constitution assigns tariff authority to Congress, and the statute doesn’t contain a clear directive for when the president can act. To avoid that constitutional problem, the court adopted a narrower interpretation, declaring that IEEPA does not reach that far.

The Federal Circuit Will Take a Different View

The Trump administration is likely to ask the Supreme Court to review the case immediately. If the court declines, however, the case will head to the Federal Circuit, which hears appeals from the Court of International Trade. And this is where things may change.

The Federal Circuit is known for its technocratic and statutory focus, not constitutional adventurism. It has historically been deferential to executive power in trade, and it has not shown an appetite for reviving the nondelegation doctrine. That’s a key weakness in the CIT’s reasoning: its narrow reading of IEEPA seems to rest on an assumption that broader interpretations would trigger constitutional problems. But if the appeals court declines to follow the nondelegation analysis, it could well conclude that the statute is broad enough to permit the tariffs.

And with the Supreme Court’s recent Loper Bright decision ending Chevron deference, agencies no longer get the benefit of the doubt when interpreting statutes. The courts must now do the interpreting themselves. But in doing so, judges may still find that IEEPA’s language—however broad—is not unconstitutional and not necessarily tariff-prohibitive.

The Supreme Court, on the other hand, might decide to revive nondelegation. In Gundy v. United States (2019), Justice Gorsuch dissented from the majority’s decision to uphold a broad delegation of power to the Attorney General under the Sex Offender Registration and Notification Act. He was joined in that dissent by Justice Clarence Thomas and Chief Justice John Roberts. Justice Brett Kavanaugh did not participate in Grundy but has praised Gorsuch’s dissent. So, there may be at least four votes for a functional nondelegation doctrine.

A Pandora’s Box of Delegation Trouble?

If the courts were to affirm V.O.S. Selections on nondelegation grounds, it’s likely they wouldn’t stop at trade law. The courts could use this as an opportunity to embark on a broader constitutional revival that could destabilize major pillars of the regulatory state.

Laws like the National Environmental Policy Act, which gives agencies wide discretion over environmental reviews, or the Clean Air Act, which empowers the EPA to set air standards with minimal statutory guidance, could suddenly face renewed scrutiny. Even Dodd-Frank, with its sweeping grants of power to the CFPB and FSOC, rests on similarly vague mandates. For decades, courts looked the other way. V.O.S. Selections suggests that era may be ending.

So this case could wind up being about much more than tariffs. It may be a test of whether courts are ready to reassert constitutional boundaries Congress has long ignored. It would be a grand irony if the courts revived the long dormant nondelegation doctrine—something for which conservative legal scholars have been advocating for decades—in a case paring back a Republican president’s trade authority.

What It Means for Trump—and Trade

For now, even if this decision survives appeal, it would only block one avenue President Trump used to impose tariffs. But it doesn’t touch the others. Statutes like Section 232 (for national security-based tariffs) and Section 301 (for retaliatory tariffs) remain untouched and fully operational. It is entirely possible that the same tariffs could be reimposed under one of these other authorities—albeit with more procedural hurdles. That may slow things down, but it doesn’t eliminate the underlying policy tools.

And even if the courts were to invalidate all executive-based approaches, President Trump would still have one more option: go directly to Congress. With strong public support for cracking down on fentanyl and holding trading partners accountable, Trump could press for explicit legislative authorization to reimpose the tariffs. Unlike the IEEPA route, that path would leave no room for judicial ambiguity. A law passed by Congress and signed by the president is not easily second-guessed by the courts. Although it might still be vulnerable to a nondelegation challenge.

So, while the V.O.S. Selections decision temporarily closes one door, others remain wide open. The legal battlefield is shifting, but Trump’s tariff agenda is very much alive. The next phase may be slower and more contested, but don’t mistake litigation for surrender. This fight is just beginning.