[corrected link] V.O.S. Selections – a US Court of Appeal finds that the reciprocal and fentanyl-trafficking tariffs are unlawful

Because it is of general interest, we have provided a link to the V.O.S. Selections decision of the US Court of Appeals for the Federal Circuit.

The majority found that the International Emergency Economic Powers Act (IEEPA) did not authorize the imposition by executive order of the fentanyl-trafficking tariffs or the reciprocal tariffs. The IEEPA authorized the president to take any of a specified long list of actions, including “to regulate … importation”, in response to a declared national emergency arising from “an unusual and extraordinary threat … to the national security, foreign policy, or economy of the United States.”

The majority found that where Congress has provided the President with the power to impose tariffs, it has used “clear and precise terms to delegate [that] tariff power”. Here, “[t]he statute neither mentions tariffs (or any of its synonyms) nor has procedural safeguards that contain clear limits on the President's power to impose tariffs.”

Furthermore, under the “major questions” doctrine, which is engaged in “'cases in which the history and breadth of the [asserted Presidential] authority’ … entails vast ‘economic and political significance’,” the government is required to point to clear congressional authorization for that asserted authority. Here, “[t]he invocation of IEEPA to impose tariffs on nearly every country in the world is undoubtedly a significant departure from … previous invocations” of presidential power regarding tariffs; and the clear congressional authorization therefor was lacking (and similarly regarding the fentanyl tariffs).

Accordingly, the imposition of both sets of tariffs was declared to be unlawful. However, the case was remanded to the court below to determine whether its issuance of an injunction applying to all impositions of those tariffs, rather merely making a declaration of unlawfulness, accorded with the findings of the Supreme Court in CASA, 145 S. Ct. 2540 (2025), as to the limited circumstances in which a universal injunction is warranted.

The majority of seven of the eleven judges included three judges who concurred in the majority judgment, briefly summarized above, but who wrote additional reasons indicating that the IEEPA did not authorize any tariff.

The minority of four judges indicated that “considerable deference” was required to be accorded to a Presidential declaration of a national emergency (a proposition which was not disputed by the majority), and further indicated that it was not convinced that such deference should not be accorded in this instance. It also stated that “[w]e know of no persuasive basis for thinking that Congress wanted to deny the President use of the tariffing tool, a common regulatory tool, to address the threats covered by IEEPA.”

Regarding the “major questions” doctrine, the minority indicated that this doctrine has not been applied in the national security or foreign policy context in which “'the usual understanding is that Congress intends to give the President substantial authority and flexibility to protect America and the American people’.” Thus, there was “simply no ‘common sense’ expectation in the present context, involving emergencies touching foreign affairs, that Congress was unlikely to be granting the authority at issue.” The minority therefore did “not see IEEPA as anything but an eyes-open congressional choice to confer on the President ‘broad authority’ to choose tools to restrict importation when the IEEPA” standards were met.

Given the number of judges in the minority, the chances of the President ultimately prevailing in the US Supreme Court might be considered to be more than trivial.

V.O.S. Selections, Inc. v. Trump, Case 25-1812 (U.S.C.A. (Fed. Circuit), August 29, 2025)