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The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent | Est. 2002
Annotating President Trump's Press Conference About The Tariffs Ruling
Much has been written about President Trump's press conference in the wake of Learning Resources. The Wall Street Journal Editorial Board charged that the "rant in response to his tariff defeat at the Court was arguably the worst moment of his Presidency." Ed Whelan said the speech was "stupid and vile."
I quite deliberately waited a bit to watch Trump's remarks. I wanted to actually read the opinion first, and let the tumult of Friday settle down. It helps that I am not on social media, and completely turn off the internet on shabbat.
Now, with some distance from Friday, I watched the press conference. This might be one of the most important presidential remarks about the Supreme Court since FDR's Court-Packing address. Of course, it is done in Trump's inimitable style with dripping vitriol, but as Trump often does, he says the things we all think but are simply unsayable in polite company. People need to focus less on how Trump says things and more on what he actually says.
Rather than trying to summarize it, I will offer a passage-by-passage annotation.
An Edited Version Of Learning Resources
I've finished reading the entire tariff decision, and editing it down for the Barnett/Blackman casebook.
I realize I am unorthodox. I avoid commenting on a Supreme Court opinion till I've read the entire thing from front to back. I find the experience far more rewarding. I also avoid reading takes by people who almost certainly did not read the entire decision, or perhaps just skimmed the syllabus. Of course, the fact that Learning Resources had seven separate opinions, and stretched more than 170 pages, made the experience a bit unpleasant, but persevere I did.
Here is my first stab at an edited version for the Barnett/Blackman supplement, down to about 50 pages.
The majority opinion is very short, about 6 pages. The Roberts opinion can be stated very simply. As I've said before, the shorter a Roberts decision is, the more he is concealing.
The Gorsuch opinion, which stretches nearly 50 pages in the reported version, is cut down to 14 pages. For the most part, Gorsuch is responding to Barrett, Kagan, and Kavanaugh/Thomas. I feel like the only person on planet earth who truly needs to read the entire Justice Gorsuch opinion is Justice Gorsuch. This was for him, not his colleagues, or anyone else for that matter. Depending how much of the other four opinions you assign, you can probably skip around the Gorsuch opinion.
The Barrett concurrence is thankfully short, and I shortened it further to two pages.
I cut most of the Kagan concurrence to a page, only including the parts where she throws shade at Justice Gorsuch.
The Jackson concurrence on legislative history can be eliminated altogether. I kept a really short segment.
The Thomas dissent is about six pages. It reminds me a bit of Zivotofosky. He has very deep views on the President's powers with regard to foreign policy. In Zivotofsy, Scalia challenged him. Here, Gorsuch doesn't really try.
The Kavanaugh dissent is 23 pages long, much longer than the majority. This extended excerpt is justified, at least in part, because Kavanaugh goes deep into issues that Roberts glosses over. Justice Kavanaugh also tends to use theme and variation. He will state a point, develop it, then restate the point in a different way, and then restate it again. As Justice Scalia would say, repetition is afoot.
I will probably cut this excerpt down further to about 35 or 40 pages for the supplement, and under 30 pages for the casebook. It still isn't clear to me exactly how to teach the Major Questions Doctrine in ConLaw, as this is more of a statutory interpretation/admin principle. I had hoped to include it in a section on non-delegation, but the Court assiduously avoided that issue.
Enjoy! I will have a lot of commentary on this case in the coming days.
Andrew McCarthy on "Why Trump's Section 122 Tariffs Are Illegal"
The prominent conservative legal commentator outlines the case against Trump's latest tariff power grab.
Within hours of the Supreme Court's decision striking down his massive IEEPA tariffs in our case challenging them, Donald Trump issued an executive proclamation invoking Section 122 of the Trade Act of 1974 to impose 10% global tariffs, and then upped the rate to 15%. Prominent conservative legal commentator Andrew McCarthy has an insightful National Review article explaining why these new tariffs are also illegal. McCarthy and I differ over many issues. But we agree on this one. Here's an excerpt:
These new tariffs are even more clearly illegal than Trump's IEEPA tariffs…..
In Section 122, Congress endowed the president with narrow, temporary authority to impose tariffs "to deal with large and serious United States balance-of-payments deficits" (emphasis added). What Trump is complaining about — something he insists is a crisis but is not — is the balance of trade, not of payments. The United States does not have an overall balance of payments deficit, much less a large and serious one.
A trade deficit between the U.S. and a foreign nation occurs, mainly in connection with goods (which is just one aspect of international commerce), when imports are greater than exports. This is not really a problem for a variety of reasons — e.g., a trade deficit results in an investment surplus, the U.S. is a major services economy and often runs exported services surpluses that mitigate the imports deficit in goods, etc.
The balance of payments is a broader concept than the balance of trade. It accounts for all the economic transactions that take place between the United States and the rest of the world. Even without getting into every kind of transaction that entails, suffice it to say that foreign investment in the United States, coupled with the advantages our nation accrues because the dollar is the world's reserve currency, more than make up for the longstanding trade deficit in goods.
Our overall payments are in balance. There is no crisis.
It's vital to understand why Section 122 was enacted. There was a financial crisis in the late 60s and early 70s under the Bretton Woods system, when the dollar was tied to gold. Foreign countries that held dollar reserves could exchange them for gold at a fixed rate. Meanwhile, our government was spending at a high clip due to the Vietnam War and Great Society programs. This and the obligation to pay out gold put enormous pressure on the dollar…
Now, over a half century later, these conditions no longer obtain. The dollar floats and the government does not concern itself with gold parity. The dollar is the global reserve currency, so demand for dollars by foreign nations is robust. We have strong capital inflows and our highly liquid financial markets are the envy of the world. Notwithstanding trade deficits, there is no balance of payments problem.
Nor is it necessary, as Section 122 puts it, to impose temporary tariffs in order "to prevent an imminent and significant depreciation of the dollar in foreign exchange markets[.]"
There is no rationale under Section 122 to impose tariffs. Because President Trump has no unilateral authority to order tariffs, he must meet the preconditions of Section 122 to justify levying them. He cannot. Not even close.
I agree. And I think there are additional reasons why the new Section 122 tariffs are illegal. I will have more to say about them in the coming days.
A Puzzle about Learning Resources v. Trump
Why is the decision named what it is?
Yesterday's Supreme Court decision rejecting President Trump's use of the International Emergency Economic Policy Act (IEEPA) to impose tariffs is styled Learning Resources v. Trump. But why?
The tariff case was actually two cases. Learning Resources, which had been filed in a federal district court, and Trump v. V.O.S. Selections, which was filed in the Court of International Trade and then appealed to the U.S. Court of Appeals for the Federal Circuit. One question before the Court was which of these litigation pathways was the right one.
Here is what the Court said on that point in a footnote:
We agree with the Federal Circuit that the V.O.S. Selections case falls within the exclusive jurisdiction of the CIT. The plaintiffs' challenges "arise[] out of " modifications to the HTSUS. 28 U. S. C. §1581(i)(1). Where, as here, such modifications are made under an "Act[] affecting import treatment," 19 U. S. C. §2483, they are "considered to be statutory provisions of law for all purposes," §3004(c)(1)(C). Thus, the plaintiffs' challenges "arise[] out of [a] law of the United States providing for . . . tariffs." 28 U. S. C. §1581(i)(1). For the same reasons, the United States District Court for the District of Columbia lacked jurisdiction in the Learning Resources case.
Based upon this, it seems to me the decision should be captioned Trump v. V.O.S. Selections, not Learning Resources. After all, if the district court lacked jurisdiction in Learning Resources, that case should have been dismissed and the Supreme Court would not have had jurisdiction to review that case on the merits. It did, however, have jurisdiction to reach the merits in V.O.S. Selections, so that is the case on which the Court actually ruled. But that is not what the Court did.
Trump on the Supreme Court's Tariff Decision
It wasn't the Court's opinion that is an "embarrassment."
After the Supreme Court ruled (correctly) that the International Emergency Economic Powers Act (IEEPA) does not authorize the imposition of tariffs, President Trump issued remarks on the decision. It was quite something.
Here are some excerpts form the transcript:
The Supreme Court's ruling on tariffs is deeply disappointing, and I'm ashamed of certain members of the court, absolutely ashamed, for not having the courage to do what's right for our country.
I'd like to thank and congratulate Justices Thomas, Alito and Kavanaugh for their strength and wisdom and love of our country, which is right now very proud of those justices. . . .
The Democrats on the court are thrilled, but they will automatically vote no. They're an automatic no, just like in Congress, they're an automatic no. They're against anything that makes America, strong, healthy and great again. They also are a, frankly, disgrace to our nation, those justices. . . .
Others think they're being politically correct, which has happened before far too often with certain members of this court, and it's happened so often with this court — what a shame — having to do with voting in particular, when in fact they're just being fools and lapdogs for the RINOs and the radical left Democrats and, not that this should have anything at all to do with it, they're very unpatriotic and disloyal to our Constitution.
It's my opinion that the court has been swayed by foreign interests and a political movement that is far smaller than people would ever think. It's a small movement. I won by millions of votes, we won in a landslide. With all the cheating that went on, there was a lot of it, we still won in a landslide. Too big to rig.
But these people are obnoxious, ignorant and loud. They're very loud. And I think certain justices are afraid of that. They don't want to do the right thing. They're afraid of it. . . .
I understand how they are very easily swayed. I want to be a good boy. . . .
To show you how ridiculous the opinion is, however, the court said that I'm not allowed to charge even one dollar. I can't charge one dollar, can't charge a dollar. I would have used one penny, but we don't make the pennies anymore. We save money.
Can't charge one dollar to any country under IEEPA, not one dollar, I assume to protect other countries. This must have been done to protect those other countries. Certainly not the United States of America, which they should be interested in protecting. That's what they're supposed to be protecting. . . .
Our country is the hottest country anywhere in the world right now, and it was a dead country one-and-a-half years ago under an incompetent president. But now I'm going to go in a different direction, probably the direction that I should have gone the first time.
But I read the language. I'm very good at reading language, and it read our way 100 per cent. But now I'll go the way I could have gone originally, which is even stronger than our original choice.
As Justice Kavanaugh — whose stock has gone so up, you have to see, I'm so proud of him — wrote in his dissent, "Although I firmly disagree with the court's holding today, the decision might not substantially constrain a president's ability to order tariffs going forward." So think of that, "the decision might not substantially constrain." And it doesn't. He's right. In fact, I can charge much more than I was charging. So I'm going to just start. . . .
And from the Q&A at the press conference:
Question: Mr. President. What will you say to foreign nations who seek to renegotiate their deals? And what did you mean a moment ago when you said that the Supreme Court has been swayed by foreign interests?
Trump: Well, I think that foreign interests are represented by people that I believe have undue influence. They have a lot of influence over the Supreme Court, whether it's through fear or respect or friendships, I don't know. But I know some of the people that were involved on the other side and I don't like them.
I think they're real slimeballs. And, uh, got to do what's right for the country. You got to do what's right for the Constitution. That's why I respect so much, Justice Thomas and Alito, Kavanaugh, because they not only dissented, their dissent is so strong. When you read their dissent, you know, a lot of times you'll read a dissent and it's like, well, you don't know.
It could go either way. There's no other way. The good news is it's like Justice Kavanaugh said, very strongly said, you have other ways you can go. You don't have to go that way. You can go other way. There are numerous other ways you can go. And frankly, this should have been done by presidents many years ago.
They allowed our country to be eaten alive. We lost 50 percent of our car business. We used to make cars. We made all cars. And then Mexico came, Canada came, Japan, and Germany, but they're all coming back now. They're all coming back at record levels. . . .
And on his appointments to the Court:
Question: Mr. President, Justices Gorsuch and Barrett, are you surprised in particular by their decision today?
Trump: I am.
Question: And do you regret nominating them?
Trump: I don't want to say whether or not I regret. I think their decision was terrible. Yeah. I think it's an embarrassment to their families, you want to know the truth, the two of them. Yeah.
An MQD Receipt Justice Gorsuch Overlooked
Justices Kagan and Sotomayor have signed on to at least one opinion that expressly relied upon the major questions doctrine.
Justice Gorsuch's concurrence in Learning Resources v. Trump is something of a Godfather-esque settling of family business. He challenges and critiques all of his colleagues (save for the Chief) and brings receipts. As one would expect, his opinion draws tart responses from other justices (which could explain why it took so long for the Court to release the opinion).
Whatever one concludes about Justice Gorsuch's exchange with Justice Kagan, and whether the progressive justices implicitly adopted arguments embracing the major questions doctrine in this case, he is correct that Justices Kagan and Sotomayor have signed on to MQD-reasoning in the past, he just forgot to include one of the most salient receipts.
In 2015, both Justices Kagan and Sotomayor signed on to Chief Justice Roberts' opinion for the Court in King v. Burwell. Of note, that opinion relied upon MQD reasoning in concluding that Congress had not delegated authority to the Internal Revenue Service to determine whether tax credits would be available in federal exchanges. Here's the relevant passage:
My New Atlantic Article About Our Win in the Tariff Case
It covers many issues raised by the decision.
The Atlantic just published my article (gift link) about the tariff ruling decided by the Supreme Court yesterday, in which I was co-counsel for the plaintiffs in one of the three cases before the justices. The article covers many issues raised by the case, including major questions, nondelegation, implications for the rule of law, and Trump's plan to use Section 122 to impose massive new tariffs. Here is an excerpt:
In a 6–3 decision yesterday, the Supreme Court rightly ruled that, under the International Emergency Economic Powers Act of 1977, the president does not have the power to "impose tariffs on imports from any country, of any product, at any rate, for any amount of time." The ruling is a major victory for the constitutional separation of powers, rule of law, and millions of American consumers and businesses harmed by these tariffs.
This decision spared America from a dangerous, unconstitutional path. Under President Trump's interpretation of the law, the president would have had nearly unlimited tariff authority, similar to that of an absolute monarch. That undermines basic constitutional principles. The Framers of the Constitution had sought to ensure that the president would not be able to repeat the abuses of English kings, who imposed taxes without legislative authorization….
Trump's position had multiple flaws. IEEPA does not even mention tariffs, nor any synonyms such as duties and imposts. The law does authorize the president to "regulate" certain types of international transactions in the event of an "emergency" that amounts to an "unusual and extraordinary threat" to the United States. But the tariff authority and the power to "regulate" foreign commerce are listed in separate clauses of the Constitution. And, as Chief Justice John Roberts noted in his opinion for the Court, the tariff authority is part of the power to tax, an authority the Framers of the Constitution carefully reserved to Congress because they had "just fought a revolution motivated in large part by 'taxation without representation.'" Furthermore, during the previous nearly 50-year history of IEEPA, Roberts continued, "no President has invoked the statute to impose any tariffs—let alone tariffs of this magnitude and scope…."
Three of the justices in the majority—Roberts, Neil Gorsuch, and Amy Coney Barrett—also concluded that the Trump administration's interpretation of IEEPA goes against what has become known as the "major questions" doctrine, which requires Congress to "speak clearly" when authorizing the executive to make "decisions of vast economic and political significance…."
In addition to upholding the separation of powers, the decision is a victory for the rule of law, which requires that major legal rules be clearly established by legislation, not subject to the whims of one person. Since first imposing the Liberation Day tariffs, Trump has repeatedly suspended and reimposed various elements of them. He has also imposed or threatened to impose IEEPA tariffs for a variety of other purposes, such as countering the supposed threat of foreign-made movies, punishing Brazil for prosecuting its former president for attempting to launch a coup to stay in power after losing an election, and most recently castigating eight European nations opposed to his plan to seize Greenland. Such gyrations undermine the stable legal environment essential for businesses, consumers, and investors, and create endless opportunities to reward cronies and punish political adversaries. Studies show that firms contributing to the Republican Party were disproportionately likely to receive exemptions from tariffs imposed during Trump's first term, while firms contributing to Democrats were more likely to have to pay. If allowed to stand, the IEEPA tariffs would have created much greater opportunities for such corruption….
The administration may try to reimpose many of the tariffs using other statutes… But those laws have various constraints that would make it hard for the president to simply impose unlimited tariffs, as he could have done under his interpretation of IEEPA. As Chief Justice Roberts noted in his opinion yesterday, "When Congress has delegated its tariff powers, it has done so in explicit terms, and subject to strict limits…" If Trump or a future president does claim that those other statutes give him unlimited power, tariffs imposed based on any such theory would themselves be subject to legal challenges. Yesterday's decision signals that a majority of the Court is seriously skeptical of claims of sweeping executive tariff authority.
For a compendium of all my writings about the tariff litigation, see here.
Court Blocks Community College "Diversity, Equity, Inclusion, and Accessibility" Requirements for Teaching
From yesterday's decision by Judge Kirk Sherriff (E.D. Cal.) in Johnson v. Fliger (for more on an earlier phase of the case, see here):
Plaintiff Daymon Johnson, a professor of history at Bakersfield College, brings this pre-enforcement challenge seeking injunctive and declaratory relief to preclude officials of Bakersfield College and the Kern Community College District ("KCCD") from enforcing, as to his intended speech, two provisions of the California Code of Regulations. These provisions would require Johnson to employ "teaching, learning, and professional" practices reflecting diversity, equity, inclusion, and accessibility ("DEIA") and anti-racist principles, require Johnson to "establish proficiency in DEIA-related performance to teach, work, or lead within California community colleges," and require defendants to evaluate Johnson based in part on his proficiency in such DEIA principles….
Johnson alleges that the DEIA regulations compel his speech and discriminate against his viewpoint in violation of the First Amendment. He alleges that he fears either being compelled to express a viewpoint with which he disagrees or being punished if he continues to refuse to express defendants' desired viewpoint or if he expresses his contrary views. Johnson has credibly identified specific speech that he reasonably fears would be proscribed by the DEIA regulations. And as the Ninth Circuit has found, he "has established a 'concrete plan to violate the law' based on his allegations regarding his desired speech and his refusal to express support for [DEIA] principles." Johnson v. Fliger (9th Cir. 2025) (quoting Thomas v. Anchorage Equal Rts. Comm'n, 220 F.3d 1134, 1139 (9th Cir. 2000) (en banc)).
Johnson has established that his intended speech, which reflects his opposition to the DEIA regulations and to the state's DEIA policies, concerns a matter of public concern. To the extent the DEIA regulations proscribe and chill Johnson's intended speech in his teaching or scholarship as a professor, in his work with a "dissident faculty" group on campus that opposes the DEIA regulations, or in his capacity as a private citizen or public academic engaging in extracurricular speech, Johnson has a First Amendment interest in such intended speech. See Demers v. Austin (9th Cir. 2014); Reges v. Cauce (9th Cir. 2025). Defendants have failed to demonstrate "a legitimate administrative interest in suppressing the speech that outweigh[s] the plaintiff's First Amendment rights." …
Johnson has failed to establish a likelihood of success on his challenge to Bakersfield College's requirement that he complete mandatory DEIA training as a requirement to participate on faculty screening committees, as the government may express its views through such employee training, and Johnson fails to show that the training requires him to personally endorse the government's views as his own. Nor does Johnson establish that his official capacity speech as a member of Bakersfield College's Equal Opportunity & Diversity Advisory Committee ("EODAC") is protected speech, as it is government speech and he has not established that it is sufficiently connected to scholarship or teaching. See Sullivan v. Univ. of Washington (9th Cir. 2023) (rejecting argument that faculty members serving on state university's animal care and use committee were entitled to First Amendment protection, because they were "not thereby engaged in 'teaching and academic writing'"). Johnson also fails to establish a likelihood of success on his facial challenge to the DEIA regulations, as the DEIA regulations apply to a range of non-speech conduct and Johnson fails to show that they prohibit a substantial amount of protected speech relative to their plainly legitimate sweep….
Reptiles v. Plants & Dogs: Reptiles Lose
From the Report & Recommendation in New Moon Reptiles LLC v. Saekow d/b/a DD's Plants, issued by Magistrate Judge Ryon McCabe (S.D. Fla.) on January 22 and approved Tuesday by District Judge Aileen Cannon:
This is a defamation and tortious interference case arising from social media posts. Plaintiffs operate a Florida-based business engaged in the importation, exportation, and sale of reptiles. Plaintiffs allege that Defendant … published false social media posts claiming that Plaintiffs caused the death of certain reptiles by shipping them to a trade show in California under unsafe circumstances that caused their deaths….
Plaintiffs sent a cease-and-desist letter to Defendant in Nevada on October 20, 2025. Defendant responded on October 30, 2025, through counsel, by denying any wrongdoing and refusing to remove the social media posts at issue. By way of the pending motion, Plaintiffs seek entry of an ex parte temporary restraining order ("TRO") that would, among other things:
- prohibit Defendant from publishing or republishing statements concerning Plaintiffs, their owners, or their families,
- require Defendant to remove previously published social media posts,
- enjoin Defendant from encouraging or inciting third-party contact or harassment, and
- maintain these restraints through the pendency of the case.
As of the date of this Report and Recommendation, Defendant has not been served or appeared in the case….
Eleventh Circuit Reaffirms That Pseudonymity Is Available to Parties Only in "Exceptional Case[s]," Under "Highly Limited Circumstances"
Boe v. Garcia, decided Thursday by Eleventh Circuit Judges Robert Luck, Barbara Lagoa, and Andrew Brasher, upheld a district court's denial of pseudonymity in a case where plaintiff is alleging police misconduct. The court, reviewing the district court's denial of pseudonymity for abuse of discretion (the standard of review used by federal courts in such cases), reasoned:
Generally, pleading in federal court must name all the parties. Fed. R. Civ. P. 10(a). But, under certain, highly limited circumstances, we allow plaintiffs to proceed pseudonymously. Indeed, we have held that "parties may use fictitious name[s] only in exceptional case[s]." "The ultimate test for permitting a plaintiff to proceed anonymously is whether the plaintiff has a substantial privacy right which outweighs the customary and constitutionally-embedded presumption of openness in judicial proceedings."
To decide whether privacy trumps publicity, a court must first consider "whether the party seeking anonymity (1) is challenging government activity; (2) would be compelled, absent anonymity, to disclose information of utmost intimacy; or (3) would be compelled, absent anonymity, to admit an intent to engage in illegal conduct and thus risk criminal prosecution." A court must then "carefully review all the circumstances of a given case and then decide whether the customary practice of disclosing the plaintiff's identity should yield to the plaintiff's privacy concerns." "Other factors to consider include [4] whether the party seeking anonymity is a minor or [5] faces a real threat of physical harm absent anonymity" and whether anonymity "[6] poses a unique threat of fundamental unfairness to the defendant."
Today in Supreme Court History: February 21, 1868
2/21/1868: President Johnson orders Secretary of War Edwin Stanton removed from office. In Myers v. U.S. (1926), the Supreme Court found that Johnson's actions were lawful.
Open Thread
What’s on your mind?
From Prof. Jack Goldsmith (Harvard) on the Tariff Decision
"A massive defeat for the president and an extraordinary affirmation of the Supreme Court's power."
An excerpt from his Executive Functions post today; note that his and Curtis Bradley's Foreign Affairs, Nondelegation, and the Major Questions Doctrine, 172 U. Pa. L. Rev. 1743 (2004) was heavily cited both by Justice Gorsuch's concurrence and Justice Kavanaugh's dissent:
A very significant aspect of the Chief Justice's [Major Questions Doctrne] analysis is that three conservative justices embraced it to rule against President Trump's signature policy. And they did so in the most difficult possible context, with an issue involving national security and foreign affairs.
This is a rebuttal to those who have claimed that the Court, or at least those three justices, invoke the doctrine opportunistically and politically to hurt Democratic presidents. And I think it signals more clearly than ever that, going forward, this Court is going to view broad delegations of statutory authority to a president to act, and/or extravagant presidential interpretations of authorizations to act, with skepticism. The three justices firmly committed here to the MQD can (if they wish) ensure that outcome in a case of just about any political configuration.
To the extent this is true, it is a hugely important complement to the Court's emerging broad view of the unitary executive. Put another way, it is a vindication of Sarah Isgur's view that the tradeoff on the Court for enhancing vertical unitary presidential control is "for the court to rein in Congress's bad habit of delegating vast and vague powers to the executive branch," including through MQD.
It also puts in a better light the Court's interim orders to date in Trump 2.0, a large number of which, due to the application strategy of the Solicitor General, involved issues of vertical control. The tariff opinion gives the lie to the notion that the Court is in the bag for the president and also makes its approach to issues of presidential power in Trump 2.0 both clearer and more nuanced….
[T]he Trump press conference [following the decision] was an amazing portrait of a president who claims to be unbound by law seethingly acquiescing in a court ruling on "an important case to me" that he abhorred with every fiber of his body. It is clear the administration will use every alternative legal tool at its disposal to replicate or go further in deploying international economic weapons. That is its legal prerogative. But still, Trump's anger combined with his acquiescence in the ruling elevated the Court and was a remarkable testament to its power….
Short Circuit: An inexhaustive weekly compendium of rulings from the federal courts of appeal
An empty whiskey bottle, a rat in the crosshairs, and the nightmares of HR managers
Please enjoy the latest edition of Short Circuit, a weekly feature written by a bunch of people at the Institute for Justice.
A Note on Tariff Refunds
Thanks to our victory in the tariff case before the Supreme Court, businesses that paid billions of dollars in illegally collected tariffs can seek refunds. But the process may be difficult.
Since we prevailed in our tariff case at the Supreme Court today, and even before, I have gotten many questions about tariff refunds. US importers who paid illegally collected IEEPA tariffs are eligible for up to $175 billion in refunds. As I see it, justice requires repayment of every penny - with interest! Administration claims that repayment is too difficult ring hollow. They shouldn't have illegally taken much money in the first place. And, in the litigation in the lower courts, they argued for stays of the injunctions against them on the grounds that - if we won - the businesses victimized by the tariffs would be eligible for refunds once the litigation reached a conclusion.
However, I am not an expert on the tariff refund process. I became involved in this case because of my expertise in constitutional law and issues involving emergency powers. A tariff refund specialist I am not. Thus, I am not the right person to ask about how to get back the illegally collected tariff payments.
However, I would like to refer anyone interested in this issue to an excellent September 2025 Lawfare article by Joshua Claybourn. Josh helped organize some important amicus briefs for our case, and - unlike me - he really does have expertise on the issue of refunds. His article provides a valuable overview of the tariff refund process. Here is an excerpt from it:
This piece examines the core legal obligation of the U.S. government to refund unlawfully collected tariffs, including (a) the statutory framework under 19 U.S.C. § 1514, governing the finality and correction of Customs and Border Protection (CBP) decisions; (b) judicial precedents confirming the government cannot retain illegally exacted duties; (c) administrative mechanisms available for importers seeking tariff refunds; and (d) procedural implications arising from recent and historical court decisions mandating refunds.
There is a strong legal basis for importers to recover duties unlawfully collected under IEEPA. However, importers must comply with statutory deadlines and administrative procedures—such as timely protests or claims—to preserve refund rights. The government's obligation to refund such amounts, along with any applicable interest, will arise once courts definitively invalidate these tariffs, subject to any procedural bars under 19 U.S.C. § 1514.
Finally, I should note that - as of today - I am no longer involved in the tariff litigation as an attorney (my part of the case is over), and thus have no plans to be involved in refund litigation.
I Got 99 Delegations, but a Tariff Ain't One
Words from noted rapper I-Eepa,
as analyzed by Justice Kagan's concurrence in today's tariff decision:
As the principal opinion explains, "regulate" is one of 9 verbs listed in IEEPA's delegation provision. (The others are "investigate," "block," "direct," "compel," "nullify," "void," "prevent," and "prohibit.") Those verbs are followed by 11 objects, each describing a distinct sort of transaction involving foreign property—not just "importation," but also "acquisition," "use," "transfer," and so forth. Combine the verbs and objects in all possible ways, and the statute authorizes 99 actions a President can take to address a foreign threat. And exactly none of the other 98 involves raising revenues.
(Justice Kagan concludes that, therefore, the 99th combination, "regulate" "importation," doesn't authorize raising revenue, either.)
"The Day Will Come When Those Disappointed by Today's Result" as to Tariffs …
"will appreciate the legislative process for the bulwark of liberty it is."
A prediction from the conclusion of Justice Gorsuch's concurrence in the tariffs decision:
For those who think it important for the Nation to impose more tariffs, I understand that today's decision will be disappointing.
All I can offer them is that most major decisions affecting the rights and responsibilities of the American people (including the duty to pay taxes and tariffs) are funneled through the legislative process for a reason. Yes, legislating can be hard and take time. And, yes, it can be tempting to bypass Congress when some pressing problem arises. But the deliberative nature of the legislative process was the whole point of its design.
Through that process, the Nation can tap the combined wisdom of the people's elected representatives, not just that of one faction or man. There, deliberation tempers impulse, and compromise hammers disagreements into workable solutions. And because laws must earn such broad support to survive the legislative process, they tend to endure, allowing ordinary people to plan their lives in ways they cannot when the rules shift from day to day.
In all, the legislative process helps ensure each of us has a stake in the laws that govern us and in the Nation's future. For some today, the weight of those virtues is apparent. For others, it may not seem so obvious. But if history is any guide, the tables will turn and the day will come when those disappointed by today's result will appreciate the legislative process for the bulwark of liberty it is.
