On November 5, 2025, the U.S. Supreme Court held oral argument in the appeal from the U.S. Court of Appeals for the Federal Circuit challenging the tariffs that the President imposed pursuant to the International Emergency Economic Powers Act (IEEPA). While only scheduled for 80 minutes, the oral argument ran for double that time.
The government’s primary position was that the IEEPA tariffs are “regulatory” in nature and not for purposes of generating revenue. The purpose of this assertion was two-fold. First, IEEPA does not mention the word “tariff,” but it does authorize the President to “regulate . . . importation or exportation” of goods. Thus, characterizing the tariffs as “regulatory” helps to tie the tariffs to the statutory language. Second, characterizing the tariffs as regulatory avoids some constitutional issues because Congress arguably has more discretion to delegate authority to the President to regulate international trade than to delegate the power to impose taxes. For these reasons, the government lawyer argued that the tariffs are seeking to “regulate” imports in the service of the President’s conduct of foreign affairs (a power the constitution assigns primarily to Congress), and that the raising of revenue is just “incidental.” This position is necessary for the government to overcome the fact that the power to tax for revenue generation is constitutionally delegated to Congress.
Counsel in opposition to the IEPPA tariffs focused largely on the fact that the tariffs are a tax for revenue generation and thus must be imposed by Congress unless there is a clear delegation of authority to the President, which he argued there is not in the IEPPA statute. He also argued that the term “regulate imports” in the IEPPA statute does not provide authority to impose taxes in the form of tariffs for revenue generation. When Congress intends to delegate taxing authority to the President, it says so explicitly in the U.S. Code and no party could point to any instance where the power to tax or impose tariffs was provided without explicitly referencing tax or tariff. He also emphasized that finding such unlimited tariff power in IEEPA would effectively render the rest of the U.S. tariff laws (such antidumping and countervailing duties, Section 301, etc.) unnecessary, since the President could bypass all the requirements and limitations in those laws by just imposing tariffs under IEEPA. Finally, he made the point that if the Court grants the President this broad power to impose unlimited tariffs under IEEPA it will be almost impossible to ever revoke that power without a supermajority in Congress that could override any Presidential veto.
The questioning of the government counsel was harsher and more critical than of the counsel in opposition of the IEPPA tariffs. But several Justices did appear to be looking for ways that the IEPPA tariffs could be found to be lawful, such as noting that in the foreign affairs context the President has broad authority, and this is especially true of authority granted to the President to deal with emergencies. They also focused on the IEEPA statute’s grant of authority for “licenses” and whether it could include license fees that could be considered a form of revenue-generating authority to make the point that perhaps Congress did delegate authority to impose tariffs that generate revenue.
The Court also discussed how “messy” it would be for the executive branch to refund IEEPA tariffs paid and whether the President could impose tariffs under other authority such as Section 338 of the Tariff Act. Counsel for the opposition argued that there are established ways to provide refunds and argued that the Section 338 question was not before the Court since the authority used by the President was IEEPA. It is hard to tell the significance of these questions as they are directly relevant to the legal issues but could suggest some practical concerns the Court has if they strike down the IEEPA tariffs.
In all, it is difficult to predict how the Court will decide. Some of the Justices were clearly on one side or the other. So, we expect a split decision with three or so Justices being determinative of the outcome.
