Can the US judiciary stop Trump’s tariffs?

Author: Li Hanming

Recently, federal judges in the United States have been particularly troubled. Because many people's jobs and vital interests have been affected, every order of Trump will inevitably be subject to judicial review (Judicial Review, here using the Hong Kong translation that also adopts common law, the same below) requests from different entities; and each judicial review request is accompanied by a long appeal process and wrangling to varying degrees, which brings huge uncertainty to policy implementation.

On the issue of tariffs alone, Trump's tariff cases have attracted more than a dozen judicial reviews. In order to sort out the attitudes of different levels of judicial institutions in the United States towards Trump and analyze the influence of the judicial institutions on Trump, we need to look for clues in the case files.

Among these judicial review cases, there are lawsuits filed by individuals (Barnes v. United States, 1:25-cv-00043, International Trade Court, February 3, ruled that the plaintiff lost on May 23), a lawsuit filed by a company (EMILY LEY PAPER INC v. TRUMP, 3:25-cv-00464, Northern District of Florida Federal District Court, April 3, LEARNING RESOURCES, INC. v. TRUMP, 1:25-cv-01248, District of Columbia Federal District Court, April 22, transferred to the International Trade Court for further trial on May 21), and lawsuits filed by five companies (V.O.S. Selections, Inc. v. Donald J. Trump, 1:25-cv-00066, International Trade Court, April 14, May 29 ruled in favor of the plaintiff, and the defendant appealed and suspended execution).

At the same time, there are also state governments suing. First, on April 16, California sued Trump alone in the Northern District of California Federal District Court (Case No. 3:25-cv-03372, the case has not yet been decided); second, on April 23, Oregon, Arizona, Colorado, Connecticut, Delaware, Illinois, Maine, Minnesota, Nevada, New Mexico, New Mexico, New York and Vermont sued in the International Trade Court in New York (Case No. 1:25-cv-00077, due to the similarity with the 00066 case, the International Trade Court will combine it for trial).

What we can see is that "dispute over jurisdiction" is always the first point of any lawsuit. California did not choose to file the lawsuit in the International Trade Court in New York, which is 4,000 kilometers away, but chose the Northern District of California Federal District Court in San Francisco, which is right next to its home. The federal government's representative lawyer naturally did not want to fight away from home, so he immediately proposed to transfer jurisdiction to the International Trade Court (the next day, April 17). Since the two parties have been arguing for more than a month, the first 03372 to file the lawsuit is not as good as the later one to get the result first, and they are still arguing about jurisdiction today.

In terms of the composition of judges, according to the nomination of the president, California also has its own calculations. In the court of first instance, the case is a blind box and the person is selected for trial (one judge is selected from the current judges for simple cases, and three judges are selected for complex cases), so it is necessary to avoid drawing three judges who sympathize with Trump's policies as much as possible. For example, in the case of Harvard v. Department of Homeland Security et al. (1:25-cv-11472) in the Federal District Court of Massachusetts, the judge assigned to it was Allison Burroughs, nominated by Obama. Allison made a very prompt judgment - the case was filed on the 23rd, and a temporary restraining order was issued on the 23rd, temporarily restoring Harvard's eligibility to recruit international students.

There is also a case in reverse - on April 3, Emily Ley Paper Inc. filed a lawsuit in the Federal District Court for the Northern District of Florida (3:25-cv-00464). Since the judge in charge, Wetherell, was nominated by Trump, he would of course quickly get out of the way and follow the request for transfer of jurisdiction by the Department of Justice to throw away this hot potato, hoping that this difficult case would be as far away from him as possible. So on May 21, the case was transferred to the International Trade Court for further trial. As soon as the Department of Justice saw that someone agreed to transfer, it naturally immediately took the Florida precedent to California.

There are currently no judges nominated by Trump in the Federal District Court for the Northern District of California; while there are 3 of the 14 judges in the International Trade Court (Reif, Baker and Vaden). According to probability, there are 364 possibilities for 3 people to form a panel of judges from 14 people. Among them, there is 1 situation of 3:0 for the three judges nominated by Trump, 33 situations of 2:1, and the majority probability is 9.34%; there are 165 situations of 1:2 and 0:3, each accounting for 45.33%. In other words, there is a more than 50% probability of drawing at least one judge nominated by Trump; if any of the other judges are sick and take leave, the probability is even higher.

In fact, among the judges who were drawn to hear case 00066/77, there happened to be Judge Reif, who was nominated by Trump in 2019. We say that we should be prepared for the worst, and it is human nature for California to choose a place with more certainty.

On the other hand, in the Circuit Court of Appeals and the Supreme Court, the organization of the collegial panel is based on all judges. For example, except for Chief Judge Newman, who suspended his duties due to illness, all 11 circuit judges of the Federal Circuit Court of Appeal participated in the appeal hearing of case 00066/00077 (the appeal number was changed to 2025-1812/13). Therefore, even in the Ninth Circuit Court of Appeals, where Trump appointed more than one-third of the judges, the case is still likely to favor the plaintiff California due to the numerical advantage.

We have analyzed the participants in the lawsuit, and now it is time to analyze the case disputes themselves. The core dispute in all three lawsuits is who has the "power to set tariffs."

China's tariff-setting power, according to Articles 15 to 18 of the Tariff Law, is divided into three situations: "State Council review - decision by the Standing Committee of the National People's Congress", "State Council decision - report to the Standing Committee of the National People's Congress for record" and "State Council approval". For example, the measure of imposing retaliatory tariffs on Trump's tariffs on China is subject to Article 18. After the Tariff Commission makes a recommendation, it can be implemented with the approval of the State Council.

The tariff-setting power of the United States is similar. Article I, Section 8, Paragraph 1 of the United States Constitution contains three clauses:

(i) “The Congress shall have the Power To lay and collect Taxes, Duties, Imposts and Excises,”. This paragraph stipulates that the two houses of Congress have the power to levy taxes (including tariffs), and the president’s power to levy taxes comes from Congress rather than the Constitution.

(ii) “to pay the Debts and provide for the common Defence and general Welfare of the United States;” This paragraph stipulates that the purpose of taxation is either to pay off debts or for national defense and general welfare expenses.

(iii) “but all Duties, Imposts and Excises shall be uniform throughout the United States;” stipulates that federal taxes should be uniform among all states.

However, just as Sections 16 to 18 of the Tariff Act gave the State Department authority to set certain specific tariffs, Congress realized that it was not practical for it to set all tariffs. Therefore, Congress passed a series of specific laws to delegate some tariff authority to the President - these laws are what we know in the news media as "Section xxx".

The three most common sections are 201 (Section 201 of the US Trade Act of 1974, initiated by the US International Trade Commission (USITC)), 301 (Section 301 of the US Trade Act of 1974, initiated by the Office of the US Trade Representative (USTR)), and 232 (Section 232 of the Trade Expansion Act, initiated by the Department of Commerce). During his first term, Trump imposed tariffs on some goods by launching investigations; Biden followed suit.

However, the use of 201, 301 and 232 tariffs requires a well-founded investigation report as a prerequisite. According to the situation in Trump's first term, the investigation time of the three is as short as three months and as long as one year. The investigation was launched in 2017, and the actual collection of tariffs will not start until 2018. Another reason is that it can only impose "double specific" tariffs on specific products and specific countries. Given Trump's character of "ten thousand years is too long, we must seize the day", he obviously thinks these three are too slow.

Therefore, in this tariff war, he used the International Emergency Economic Powers Act. However, imposing tariffs on all countries and all products is indeed a big deal, so the core of the three lawsuits is "whether IEEPA grants the president such great power." In fact, the clause that authorizes the president under IEEPA (Section 1702 of Title 50 of the United States Code) does not mention the word "tariff"; and in the nearly 50 years of IEEPA's history (implemented on December 28, 1977), no one except Trump has used it to collect tariffs.

IEEPA was generally used for sanctions before. For example, during the Iranian hostage crisis, President Carter used this newly passed law to freeze the Iranian government's assets in the United States; subsequent sanctions against Venezuela and other countries were also carried out under the IEEPA framework; even the sanctions against Huawei during his first term were based on the reason that "Huawei violated IEEPA's sanctions against Iran."

The three lawsuits attacked different points.

The five companies' lawsuit attacks its necessity - if the trade deficit itself does not constitute an emergency, then Trump will naturally lose the legal basis for imposing tariffs under IEEPA. The complaint states that "His claimed emergency is a figment of his own imagination" and that "trade deficits, which have persisted for decades without causing economic harm, are not an emergency. Nor do these trade deficits constitute an "unusual and extraordinary threat." The twelve states attacked Trump's expanded interpretation. IEEPA authorizes the president to "regulate" imports and exports, but it is usually used to prohibit imports and exports (for example, prohibiting the export of high-performance graphics cards to China). The twelve states' complaint states that "('regulate') refers to embargoes and sanctions (which is what IEEPA has consistently been used for), and interpreting "regulate" to mean "ad valorem duty" would be incongruous with the context in which it California chose to attack Trump for not communicating well with Congress, violating the Congressional Consultation Clause. IEEPA states that the President, in every possible instance, shall consult with the Congress before exercising any of the authorities granted by this chapter and shall consult regularly with the Congress so long as such authorities are exercised. We just mentioned that there is no statutory provision or precedent for whether IEEPA gives Trump the power to collect tariffs (in contrast, the Harvard v. Trump case was decided quickly because it was based on the precedent of the previous immigration ban), so the judge had no idea where to start for a while. The complexity of this matter can be seen in the previous jurisdiction dispute alone - the federal government proposed that "only the International Trade Court has the authority to hear cases related to the collection of tariffs", while California countered that "IEEPA does not provide for tariffs (IEEPA does not provide for tariffs (IEEPA does not provide for tariffs (IEEPA does not provide for tariffs (IEEPA does not provide for tariffs (IEEPA does not provide for tariffs (IEEPA does not provide for tariffs (IEEPA does not provide for tariffs ( tariffs), we are discussing Trump's illegal taxation, which has nothing to do with tariffs, and the jurisdiction should not be transferred to the International Trade Court." Therefore, whether the jurisdiction is transferred to the International Trade Court, which is set up specifically for tariff cases, itself constitutes a precedent for the judicial system's understanding of whether IEEPA has the power to stipulate tariffs. Naturally, the central and local governments will not give in to each other. And different grassroots judges are naturally trying to smooth things over - in the case of EMILY LEY PAPER INC v. TRUMP, the judge ruled that the case should be transferred; while in the case of LEARNING RESOURCES, INC. v. TRUMP, the judge ruled that it should not be transferred and directly ruled that the tariff measures were illegal. leaf="">Because many grassroots judges who are not affiliated with each other even at the level of the Court of Appeal have diametrically opposed views on their respective cases, the case will inevitably have to go to the Supreme Court to be considered a conclusion. Among the judges of the Supreme Court, one-third are nominated by Trump; one-third are nominated by Obama and Biden; and one-third are nominated by Bush Sr. and Bush Jr.

As for such "major" policies, in the previous case in which the states challenged President Biden's student loan relief (143 S. Ct. 2355), the judges established a principle on June 30, 2023 with a 6:3 ruling (Roberts, Thomas and Alito nominated by the Bush father and son, and Gorsuch, Kavanaugh and Barrett nominated by Trump voted in favor, and Kagan, Sotomayor, and Jackson nominated by Obama and Biden voted against) - specific congressional legislation (Heroes The New York Times (April 20, 2016) authorized the Secretary of Education to waive or modify regulations on student financial aid, but it did not authorize the waiver of $430 billion in student loan principal.

This has created a boomerang, posing a big problem for the Supreme Court judges. Now, the biggest variable is what position the three judges nominated by the Bush father and son will take. From their standpoints, they do not want the Democratic Party to gain power (which conflicts with their ideological beliefs) nor do they want Trump to gain power (which conflicts with their personal interests).

It seems that the tariff issue will have to be dragged on for at least another six months to a year.