backIn a 6-3 ruling with significant implications for U.S. trade policy, the U.S. Supreme Court held that the International Emergency Economic Powers Act (“IEEPA”) does not authorize the President to impose tariffs. The President subsequently announced a new tariff regime based on alternative authorities to replace the IEEPA tariffs.
Overview
On February 20, 2026, the Supreme Court issued its decision in consolidated appeals from lower court rulings (Learning Resources and V.O.S. Selections) holding that President Trump lacks authority under IEEPA to impose reciprocal tariffs on imports from most countries due to the lack of reciprocity in bilateral trade relationships (“reciprocal tariffs”) and the trafficking/fentanyl tariffs on imports from Canada, Mexico, and China related to opioid trafficking into the United States (“trafficking tariffs”).
The Majority Opinion (Sections I, II-A-1, and II-B of the Chief Justice’s Opinion)
In the 6-3 ruling, the Court’s opinion holds that IEEPA does not authorize the President to impose tariffs. Chief Justice Roberts authored the majority opinion, which was joined by Justices Sotomayor, Kagan, Gorsuch, Barrett, and Jackson. In that opinion, the Court rejects the Government’s position that IEEPA’s use of the phrase “regulate . . . importation” confers the power to impose tariffs. The Court summarizes its holding as follows: “Our task today is to decide only whether the power to ‘regulate . . . importation,’ as granted to the President in IEEPA, embraces the power to impose tariffs. It does not.” Op. 16.
In reaching this conclusion, the Court’s opinion states that the tariff power is a power to tax that the Constitution grants exclusively to Congress. The majority reasons that, while tariffs may accomplish regulatory ends, that does not mean that the power to “regulate” under IEEPA includes the power to tax. Op. 5-6, 15-16. According to the Court, while IEEPA explicitly authorizes the President to take certain actions in response to an emergency, the imposition of taxes and tariffs is not among them. The opinion states, “[t]hat omission is notable in light of the significant but specific powers Congress did go to the trouble of naming. It stands to reason that had Congress intended to convey the distinct and extraordinary power to impose tariffs, it would have done so expressly—as it consistently has in other tariff statutes.” Op. 14.
The Court’s decision dismisses the Learning Resources case for lack of jurisdiction because it did not originate at the U.S. Court of International Trade (CIT), which has exclusive, nationwide jurisdiction over actions that “arise[] out of [a] law of the United States providing for . . . tariffs.” Op. 5 n.1 (quoting 28 U. S. C. §1581(i)(1)). The decision affirms the judgment of the U.S. Court of Appeals for the Federal Circuit in V.O.S. Selections that the IEEPA reciprocal and trafficking tariffs are contrary to law. Op. 2, 21. The Federal Circuit’s decision also vacated and remanded a universal injunction that the CIT ordered on the collection of those IEEPA tariffs. Op. 2, 21. In light of the Supreme Court’s holding that IEEPA does not authorize any tariffs, the remanded injunction issue may be effectively moot.
The Court’s opinion does not squarely address the question of refunds.
The Justices’ Separate Opinions
Although the sections of Chief Justice’s opinion discussed above are joined by a majority of the Court’s Justices, the other sections of his opinion are joined only by Justices Gorsuch and Barrett (Sections II-A-2 and III). Those sections focus on how the major questions doctrine provides an additional basis for interpreting IEEPA narrowly.
Justice Gorsuch’s separate concurrence explains at some length his views regarding the major questions doctrine. Responding to Justice Kagan’s concurrence, he rejects the argument that the major questions doctrine is premised on an “anti-administrative state stance,” building on his view of separation of powers. Op. 15-17 (Gorsuch, J., concurring). Responding to Justice Barrett’s concurrence, he argues that the doctrine is more than just a commonsense principle of statutory interpretation. Op. 17-26 (Gorsuch, J., concurring). His concurring opinion concludes by responding to the dissent and its assertion that, while the major questions doctrine applies, IEEPA supplies clear congressional authorization for the President’s tariffs. Op. 26-26 (Gorsuch, J., concurring).
Justice Barrett’s separate concurrence expresses her view that the purpose of the major questions doctrine is to explain the most natural reading of a statute by situating “text in context . . . as an ordinary application of textualism.” Op. 1-4 (Barrett, J., concurring).
Justice Kagan’s separate concurrence (concurring in part and concurring in the judgment), which is joined by Justices Sotomayor and Jackson, takes the position that the case can be decided by applying ordinary principles of statutory construction. Op. 1-3 (Kagan, J., concurring). In her view, IEEPA does not grant the President authority to impose tariffs and, as a result, there is no need to address whether a clear statement is required when Congress delegates powers to address a major question. Op. 3-6 (Kagan, J., concurring).
Justice Jackson’s separate concurrence (concurring in part and concurring in the judgment) considers IEEPA’s legislative history and concludes that it supports reading IEEPA as not granting the President authority to impose tariffs. Op. 2-4 (Jackson, J., concurring).
Justice Kavanaugh’s principal dissent, joined by Justices Thomas and Alito, expresses the view that the power to “regulate . . . importation” in IEEPA covers the power to impose tariffs. J Op. 1-4 (Kavanaugh, J., dissenting). Justice Kavanaugh’s dissent also contends that the major questions doctrine does not apply because (1) Congress has provided clear authorization in IEEPA, and (2) the major questions doctrine should not apply in the foreign affairs context. Op. 4-6 (Kavanaugh, J., dissenting).
Justice Thomas’s separate dissent addresses why reading IEEPA to grant the President tariff powers is consistent with the separation of powers as an original matter, emphasizing that the power over foreign commerce can be appropriately delegated to the President, and a core private right to import goods did not exist at the nation’s founding. Op. 1-8 (Thomas, J., dissenting). In Justice Thomas’s view, the non-delegation doctrine does not apply to the delegation of power to make rules governing private conduct in the area of foreign trade. Op. 9 (Thomas, J., dissenting).
As noted, the Court’s majority opinion does not discuss the refund of IEEPA tariffs. Justice Kavanaugh’s dissent criticizes the majority on this issue: “The Court says nothing today about whether, and if so how, the Government should go about returning the billions of dollars that it has collected from importers.” Op. 63 (Kavanaugh, J., dissenting).
Next Steps by the Administration
Refunds
The Administration’s approach toward requests for refunds of IEEPA tariffs is currently uncertain. At a press conference on February 20, President Trump criticized the Court for not addressing the refund issue and suggested that years of court litigation may be required to resolve refund issues. Nevertheless, the Administration may soon provide additional insight and guidance on its views regarding the appropriateness of refunds and the procedures by which refund claims may be pursued—e.g., administratively through protest processes and/or court actions.
As the V.O.S. Selections proceedings return to the lower courts, it is possible that the Federal Circuit and/or the CIT may proactively address the issue of refunds and other aspects of how the Government may be required to comply with the Supreme Court’s ruling. If the White House or U.S. Customs and Border Protection issue guidance in the near term with respect to refunds, that guidance could precede any action by the courts to dispose of the V.O.S. Selections case that was before the Supreme Court.
It is possible that the Administration will voluntarily agree to determine eligibility for refunds through the administrative protest process, which would require importers to request refunds and would establish a six-month window for doing so from the date of liquidation. The Government might then take the position that it is not required to refund tariffs collected on entries for which protests were not timely filed. Notably, the protest procedure is an existing regulatory regime with an electronic filing process, which could promote administrative efficiencies. Alternatively, the Administration could delegate refund authority to U.S. Customs that would allow the agency to create a bespoke process for processing IEEPA tariff refunds. Post-Summary Corrections (e.g., entry amendments) also remain a possibility for unliquidated entries.
President Trump’s remarks on the refund issue highlight the possibility that the Administration might try to require that importers seek judicial relief in order to obtain refunds. Although this remains unclear, there could be significant political pressure to avoid this approach, which would create a significant burden on the court system.
We note that President Trump has cited IEEPA as a legal basis for other tariff actions, such as tariffs imposed on Brazil and India, that were not directly challenged in the Learning Resources and V.O.S. Selections cases. Although the Court has held that IEEPA does not authorize any tariffs, it is currently unclear whether the Administration will voluntarily withdraw these other IEEPA tariffs.
New Tariff Actions to Replace IEEPA Tariffs
At his February 20 press conference, President Trump confirmed that all existing tariffs under section 232 of the Trade Expansion Act of 1962 and section 301 of the Trade Act of 1974 (“Trade Act”) would remain in place. He also indicated that, later the same day, he would proclaim tariffs of 10 percent under section 122 of the Trade Act and direct the U.S. Trade Representative to initiate investigations under section 301 that could lead to additional tariffs. The President reiterated these points in a Truth Social post following the press conference:
[E]ffective immediately, all National Security TARIFFS, Section 232 and existing Section 301 TARIFFS, remain in place, and in full force and effect. Today I will sign an Order to impose a 10% GLOBAL TARIFF, under Section 122, over and above our normal TARIFFS already being charged, and we are also initiating several Section 301 and other Investigations to protect our Country from unfair Trading practices.
The President’s remarks at the press conference suggest that the section 122 tariffs would take effect within the next three days, while the section 301 investigations will entail longer processes. From those remarks, it appears that the Administration will seek to use section 122 and section 301 tariffs as replacements for the IEEPA tariffs that are contemplated in bilateral trade deals struck with many countries since the start of President Trump’s second term.
Section 122 authorizes presidential action, including a temporary import surcharge, under certain conditions, including that action be required to deal with “large and serious” balance-of-payments deficits. 19 U.S.C. § 2132(a). Import surcharges under section 122 cannot exceed 15 percent ad valorem and cannot last longer than 150 days. 19 U.S.C. § 2132(a). In contrast, section 301 is directed at certain types of practices of foreign countries, such as discriminatory policies that burden or restrict U.S. commerce, and does not impose fixed limits on the rate or duration of tariffs imposed to address such practices. 19 U.S.C. § 2411.
Key Takeaways
The Supreme Court’s Learning Resources decision eliminates IEEPA as a tariff tool. However, the Administration appears to be moving quickly to replace the reciprocal and trafficking tariffs, using 10 percent section 122 tariffs as a near-term bridge to section 301 tariffs that could remain in place indefinitely. The Administration may soon provide greater clarity on the process, or processes, that will be available to importers seeking refunds of IEEPA tariffs. Clients should closely monitor the Administration’s actions to assess the evolving tariff and trade policy landscape.