Hmmm: SCOTUS Expedites Trump Tariff Appeal

Curious, and not just because of this decision by the Supreme Court, but of the exact opposite reaction in a different tariff challenge three months earlier. 

Let’s start with what happened yesterday. After a 7-4 loss on Donald Trump’s tariffs at the Federal Circuit Court of Appeals, the administration applied for an expedited review of the case. Trump and his team cited the ongoing foreign-policy implications of cutting off his tariff authority under the International Emergency Economic Powers Act (IEEPA). The Supreme Court apparently agreed, leaving a stay in place on the ruling and scheduling what the New York Times calls “a brisk schedule” for resolution:

The Supreme Court on Tuesday agreed to fast-track review of the Trump administration’s sweeping tariffs, accepting a case that will test the limits of executive power and the president’s signature economic initiative.

The court set a brisk briefing schedule and said it would hear arguments in early November.

Last week, Mr. Trump’s lawyers urged the justices to review the ruling quickly by adding the case to the court’s calendar for the new term that begins in October. They issued a stark warning against allowing the appeals court ruling to stand, saying it threatens to unwind trade deals.

“That decision casts a pall of uncertainty upon ongoing foreign negotiations that the president has been pursuing through tariffs over the past five months, jeopardizing both already negotiated framework deals and ongoing negotiations,” according to the filing from Solicitor General D. John Sauer.

One could understand the White House concern about getting this resolved fully and finally. However, the Trump administration took the opposite position three months ago in a case they also lost, this time at the federal district court level. Toy manufacturers challenged the tariffs and Trump’s use of IEEPA and won, and then applied to the Supreme Court for an immediate review. The court declined that case, and it is now at the DC Circuit Court of Appeals — or was, until yesterday, as SCOTUSBlog’s Amy Howe noted:

Two small family-owned businesses, Learning Resources and hand2mind, challenged the tariffs in federal court in Washington, D.C. They contend that paying the tariffs in 2025 will cost them $100 million – nearly 45 times as much as they paid in 2024.

In a decision on May 29, U.S. District Judge Rudolph Contreras ruled that the IEEPA tariffs were illegal and barred the Trump administration from enforcing the tariffs against the two businesses.

In an unusual move, the challengers came to the Supreme Court in June, asking the justices to take up the case without waiting for the U.S. Court of Appeals for the District of Columbia Circuit to decide the Trump administration’s appeal. They urged the justices to act quickly, telling them that “paralyzing uncertainty” is created when tariffs are “added and subtracted at will.”

The Trump administration urged the court to stay out of the dispute. It countered that the Learning Resources case did “not warrant the extraordinary step of granting” review before the D.C. Circuit had weighed in on the government’s appeal, particularly when the D.C. Circuit had “expedited its consideration of the appeal.” Moreover, it added, Contreras did not have the power to take up the challengers’ case.

The justices denied the request by Learning Resources and hand2mind to fast-track the consideration of their petition for review.

In taking this latest case at the Trump administration’s urging, the Supreme Court reversed its earlier refusal and consolidated both cases for review, at the request of the same White House that had opposed expediting the earlier case. The other parties, including those in a separate third case in Oregon, also agreed to consolidate the cases, but the sudden interest in consolidation and settlement by the Supreme Court was clearly driven by the White House application for “expedited” review.

And here’s where that seems most curious. The Supreme Court usually (but not always) likes to hold off on taking cases until there is some sort of split between the circuits on a matter of law. That’s not the case here; the Trump administration has lost all of these cases, roughly on the same interpretation — that Trump overshot his IEEPA authority and stretched the term “emergency” to meaninglessness. There is not only no split, there’s not much difference between the various rulings. If the Supreme Court was satisfied with those rulings, they’d usually refuse to grant cert on an appeal, or would at least hold off until some variant decision emerged that required a precedential decision.

That makes this grant of expedited review even more of an optimistic sign for Trump and his team, although not necessarily a slam dunk. Four justices may want to create a very clear precedent on IEEPA and trade/tax policy at this moment. The originalists on the court could very well have combined with the liberal wing to take on this case, for instance. However, they could have achieved the same result indirectly by simply refusing the appeal altogether and letting the Federal Circuit ruling stand. 

So maybe Trump will get to keep his tariffs after all. Even if not, though, Treasury Secretary Scott Bessent pointed out that Trump has other statutory options to apply tariffs, although those paths are more complicated and limited. the IEEPA is really the best tool at hand for Trump’s tariff policies, which means he’ll fight to the end to keep it. And the end may be nigh, but right now it’s at least looking more rosy for Trump. 

Editor’s Note: Radical leftist judges are doing everything they can to hamstring President Trump’s agenda to make America great again.

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