The initial round goes to the Trump administration and against the immediate involvement of the justices.
The Supreme Court this afternoon denied a request for an emergency ruling on Donald Trump’s tariff powers. That likely means that Trump will be at liberty to wield executive control over the “liberation day” tariffs and other executive-imposed tariffs until the fall at the earliest.
To recap: Trump justified his authority to impose three categories of tariffs without congressional approval on the basis of the International Emergency Economic Powers Act of 1977 (IEEPA): (1) the global 10 percent tariff imposed on all 180+ foreign countries, (2) the “liberation day” retaliatory tariffs keyed to the size of our manufacturing trade deficits with some 90 countries; and (3) tariffs specifically imposed on China, Mexico, and Canada as leverage to deal with the fentanyl crisis. In late May, a three-judge panel of the Court of International Trade and a federal judge in D.C. (Rudolph Contreras) both ruled that IEEPA did not give Trump the authority for the first two categories, and that he had not adequately justified the third category of tariffs by sufficiently connecting them to fentanyl trafficking. The Court of International Trade entered an injunction, which the Federal Circuit (which hears appeals from that court) then stayed while the executive branch appealed, and Judge Contreras stayed his own ruling while the executive branch appealed to the D.C. Circuit. As a result, neither order will become effective unless and until one of two things happens: the appeals courts hear the full appeal and decide the case against Trump (which in a normal case could easily take another year, although the appeals are now being heard on an expedited track) or the Supreme Court steps in before the appeals courts rule.
On a case of such nationwide importance, with such unsettling effects on business, it would be prudent for the Court to act now. But the justices, winding down their term with just ten cases remaining after a six-decision day today, are doubtless weary of the endless requests for emergency action. A petition was filed with the Court for certiorari before judgment, which is the exception to the usual rule but one that appears with some frequency. As SCOTUSBlog noted, “the challengers, Learning Resources and hand2mind, are small family-owned businesses that make and sell ‘hands-on educational toys and products for children.’ They ‘outsource most manufacturing to factories in other countries,’ including in Asia. The companies say that paying the tariffs in 2025 will cost them $100 million, ‘compared with just $2.3 million in 2024—a 44-fold increase.’” They’re appealing from the D.C. Circuit case, and asked the Court to expedite consideration of their petition — given that it often takes at least 90 days just for the Court to get around to deciding whether to take a case. The Trump administration argued against expediting the petition stage, noting that the case is already being expedited in the D.C. Circuit, that it’s unusual for a party who won in the district court to be asking for review without having lost at any stage of the case, and that the administration is challenging whether the case belonged in district court at all (it arguably should have been with the other case in the Court of International Trade).
The Court’s order today did not decide whether to hear the case, or for that matter whether — if it did so — it would expedite the case. So, it’s possible that we will end up with an expedited ruling anyway by midsummer or more likely the fall. It may well be that the Court would like to rule early on the merits but thinks the jurisdictional issues could be an obstacle, and wants to see a full set of briefs at the certiorari stage before wading into a case it could end up deciding to be the wrong vehicle to resolve the tariff-power issue. But the initial round goes to the Trump administration and against the immediate involvement of the justices.