Can the U.S. judiciary stop Trump's tariffs?

Author: Li Hanming

Recently, federal judges in the United States have been particularly troublesome—since many people's livelihoods and personal interests are at stake, every executive order from Trump is bound to face judicial review requests from various entities; and each judicial review request is accompanied to varying degrees by a lengthy appeals process and disputes, bringing great uncertainty to policy implementation.

Regarding the issue of tariffs, Trump's tariff case has already attracted over a dozen judicial reviews. To understand the attitudes of different levels of the U.S. judiciary towards Trump and analyze the influence of the judiciary on Trump, we need to look for clues in the case files.

In these judicial review cases, there are individual lawsuits (Barnes v. United States, 1:25-cv-00043, Court of International Trade, February 3, ruling on May 23 that the plaintiff lost), there are company lawsuits (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, continued to be heard by the Court of International Trade on May 21), and there are lawsuits from five companies (V.O.S. Selections, Inc. v. Donald J. Trump, 1:25-cv-00066, Court of International Trade, April 14, ruling on May 29 that the plaintiff won, execution suspended after the defendant appealed).

At the same time, there are also state governments suing. First, on April 16, California sued Trump alone in the U.S. District Court for the Northern District of California (Case No. 3:25-CV-03372, the case is pending); Second, on April 23, Oregon, Arizona, Colorado, Connecticut, Delaware, Illinois, Maine, Minnesota, Nevada, New Mexico, New York, and Vermont XII filed a lawsuit before the Court of International Trade in New York (Case No. 1:25-CV-00077, which was joined by the Court of International Trade due to similarities with 00066).

What we can see is that "contention for jurisdiction" is always the first point of any lawsuit. Instead of filing a lawsuit at the International Trade Court in New York, 4,000 kilometers away, California chose the U.S. District Court for the Northern District of California at its doorstep, San Francisco. Naturally, the lawyer representing the federal government did not want to play away, so he naturally proposed to transfer jurisdiction to the International Trade Court as soon as possible (the next day, April 17). Since the two parties have been arguing for more than a month, 03372, which sued first, is not as good as the first result of the later lawsuit, and is still arguing over jurisdiction to this day.

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In terms of the composition of judges, California also has its own calculations based on presidential nominations. In the preliminary trial court, cases are assigned randomly (simple cases pull one current judge, complex cases pull three), 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 suing the Department of Homeland Security and others (1:25-cv-11472) in the Massachusetts Federal District Court, the assigned judge was Allison Burroughs, nominated by Obama. Judge Allison was quite decisive—she filed the lawsuit on the 23rd and issued a Temporary Restraining Order on the same day, temporarily restoring Harvard's eligibility to enroll international students.

There are also reverse cases - on April 3, Emily Ley Paper Inc filed a lawsuit in the U.S. District Court for the Northern District of Florida (3:25-cv-00464). Since the presiding judge, Wetherell, was appointed by Trump, he quickly decided to pass the hot potato by transferring the case at the request of the Department of Justice, hoping to get this tricky case as far away from him as possible. Therefore, on May 21, the case was transferred to the Court of International Trade for further hearings. Seeing that someone agreed to the transfer, the Department of Justice naturally immediately looked for precedents in Florida to use in California.

In the U.S. District Court for the Northern District of California, there are currently no Trump-nominated judges; Three of the 14 judges in the Court of International Trade (Reif, Baker and Vaden). In terms of probability, there are a total of 364 possibilities for 14 people to form a collegial panel. Among them, the three judges nominated by Trump have 1 3:0 and 33 2:1, with a majority probability of 9.34%; There were 165 species of 1:2 and 0:3 each, accounting for 45.33% each. In other words, there is a more than half probability that at least one Trump-nominated judge will be drawn; If one of the other judges takes a leave of absence, the probability is even higher.

In fact, among the judges drawn for the trial 00066/77, there happens to be a Judge Reif, who was nominated by Trump in 2019. We say that we are not afraid of ten thousand things, but we are afraid of just one. It is only natural for California to choose a place with more assurance.

Conversely, in the Court of Appeals and the Supreme Court, the organization of the panel is based on the full complement of judges. For example, except for Chief Judge Newman, who was temporarily unable to serve due to illness, all 11 circuit judges of the Federal Circuit Court of Appeals participated in the appeal hearing of 00066/00077 (the appeal case number 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 lean in favor of the plaintiff, California, due to the numerical advantage.

We analyzed the participants in the litigation, and next, we should analyze the dispute itself. The core dispute in all three lawsuits revolves around "who has the power to set tariffs."

The authority to set tariffs in China, according to Articles 15 to 18 of the "Customs Law," is divided into three categories: "State Council review - decision by the Standing Committee of the National People's Congress," "decision by the State Council - filed with the Standing Committee of the National People's Congress," and "approval by the State Council." For example, the retaliatory tariffs imposed by Trump on China fall under Article 18, and after the Tariff Commission makes a recommendation, it can be implemented upon approval by the State Council.

The authority to impose tariffs in the United States is similar. Article I, Section 8, Clause 1 of the U.S. Constitution outlines three provisions:

(1) "The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises." This section stipulates that the power to levy taxes (including tariffs) lies with both houses of Congress, and the President's power to levy taxes comes from Congress rather than the Constitution.

(2) "to pay the Debts and provide for the common Defence and general Welfare of the United States;" This section specifies the purpose of taxation, which is either to pay debts or for defense and general welfare expenditures.

(3) "but all Duties, Imposts and Excises shall be uniform throughout the United States;" stipulates that federal taxation shall be uniform across the states.

However, just as Articles 16 to 18 of the Tariff Act grant part of the authority to set specific tariffs to the State Council, the U.S. Congress also realized that it is not practical for all tariffs to be set by itself. Therefore, the U.S. Congress passed a series of specific laws that delegated part of the tariff authority to the President—these laws are what we commonly know in the media as the "xxx clause."

The three most common provisions 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 United States 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 certain goods by initiating investigations; Biden has followed suit and mirrored these actions.

However, imposing tariffs under 201, 301, and 232 requires a well-founded investigation report as a prerequisite—looking at the situation during Trump's first term, the investigation times for the three can take as little as three months to as long as a year. The investigation initiated in 2017 could only truly start imposing tariffs in 2018; on the other hand, it can only levy taxes on "double specific" products and specific countries. Given Trump's character of "a thousand years is too long, I only want to seize the day," it is clear that he finds the speed of these three methods too slow.

Therefore, in this tariff war, he used the "International Emergency Economic Powers Act". However, the imposition of tariffs on all countries and all products is really a big deal, so the core of the three lawsuits is "whether the IEEPA has given the president such powers". In fact, the IEEPA's mandate to the president (50 U.S.C. § 1702) doesn't really mention the term "tariff"; In the nearly 50-year history of the IEEPA (implemented on December 28, 1977), no one but Trump has taken tariffs on it.

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

The three complaints each attacked different points.

The lawsuit from the five companies attacks its necessity—if the trade deficit itself does not constitute an emergency, then Trump naturally loses the legal basis to impose tariffs under the IEEPA. The lawsuit points out that "this so-called emergency is a figment of Trump's 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.'"

Twelve states are attacking Trump's broad interpretation. IEEPA authorizes the president to "regulate" imports and exports, but it is usually used to prohibit imports and exports (for example, to ban the export of high-performance graphics cards to China). The lawsuit from the twelve states points out that "(‘regulate’) refers to embargoes and sanctions (which has always been the use of IEEPA), and interpreting regulation as 'ad valorem duty' is inconsistent with the context in which it appears" (This is the language of 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 appears).

California chooses to attack Trump for not communicating well with Congress, violating the congressional consultation clause. IEEPA states that the President should consult with Congress before exercising powers and should consult regularly with Congress while exercising those powers (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 regarding whether the IEEPA grants Trump the power to impose tariffs, there are neither statutory provisions nor precedents (in comparison, the Harvard case against Trump was resolved quickly because there was a precedent involving prior immigration bans). Therefore, the judge has no way to proceed for the time being. The complexity of this matter can be glimpsed from the previous jurisdictional disputes — the federal government argued that "only the International Trade Court has the authority to hear cases related to tariffs," while California countered that "IEEPA does not provide for tariffs; we are arguing about Trump's illegal taxation, which is unrelated to tariffs and should not be transferred to the jurisdiction of the International Trade Court."

Therefore, whether jurisdiction is transferred to the international trade court specifically established for tariff cases itself constitutes a precedent in the judicial system regarding whether the IEEPA has the authority to impose tariffs, with both the central and local sides naturally unwilling to yield. Different grassroots judges are also muddling through this issue — in the case of EMILY LEY PAPER INC v. TRUMP, the judge ruled that it should be transferred; whereas 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.

Due to the conflicting views of several grassroots judges, who are not subordinate to each other even at the appellate level, the case inevitably has to be brought to the Supreme Court to be considered a resolution. Among the composition of the Supreme Court judges, one-third are appointed by Trump; one-third are appointed by Obama and Biden; and one-third are appointed by George H.W. Bush and George W. Bush.

As for such "high-stake" policies, the judge voted 6-3 on June 30, 2023 (Roberts, Thomas, and Alito, nominated by Bush and Sons, and Gorsuch, Kavanaugh, and Barrett, whom were nominated by Trump, and Kagan, Sotomayor, whom Obama and Biden nominated, voted in favor, and Kagan, Sotomayor, whom Obama and Biden nominated, The Jackson trio voted against the principle that the Heroes Act would authorize the Secretary of Education to waive or modify student financial aid rules, but not to the point of forgiving $430 billion in student loan principals.

This brings a boomerang, presenting a major dilemma for the judges of the Supreme Court. Now, looking at the three judges nominated by the Bushes, the biggest variable is what stance they will take - from their positions, they neither want the Democrats 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 this tariff issue will have to drag on for at least another six months to a year.