The US Supreme Court granted certiorari in VOS Selections, Inc. v. Trump on September 9, agreeing to review a recent decision of the Court of Appeals for the Federal Circuit that held that the invocation of the International Emergency Economic Powers Act (IEEPA) to impose tariffs on dozens of trading partners is illegal. For further information on what’s at stake in VOS Selections, see our earlier commentary here and here.
The Court has also consolidated its review of VOS Selections with Learning Resources, Inc., et al v. Donald Trump, et al., an appeal of a decision of the District Court for the District of Columbia that also invalidated the IEEPA tariffs. Although VOS Selections and Learning Resources raise similar issues, the decisions in the respective cases diverge in their findings on jurisdiction (the VOS Selections court found that the Court of International Trade has exclusive authority to decide challenges to tariffs imposed under IEEPA, while Learning Resources ruled that jurisdiction is proper in district court) and scope (the Learning Resources court found that IEEPA confers no tariff authority, while the Federal Circuit and CIT ruled more narrowly in VOS Selections, finding that IEEPA doesn’t authorize the tariffs at issue). The plaintiffs in Learning Resources had taken the unusual step of requesting the Supreme Court to review the district court’s decision while the appeal of that decision in the Court of Appeals for the D.C. Circuit was still pending, arguing that a final decision was urgently required in light of the existential threat to the plaintiffs posed by the IEEPA tariffs.
Although the trial courts in both cases had found the IEEPA tariffs ultra vires and issued injunctions barring enforcement, those injunctions have been stayed. This means that the duties remain in effect for now. Although the Supreme Court order did not address the stay of the injunctions, it is very likely that the stay will continue pending the Supreme Court’s review and decision.
The Court has expedited its consideration of the consolidated cases and ordered arguments to be calendared for the first week in November. While it typically takes the Supreme Court approximately three months to issue a decision following arguments, the expedition order—along with the promptness it exercised in granting certiorari and the agreement of all parties that the decision is urgently required—suggests that the Court’s final judgment could arrive before the new year.
