What to look for in the November 5, 2025, oral arguments before the U.S. Supreme Court in the IEEPA tariffs case
Oral arguments are scheduled for November 5, 2025, in V.O.S. Selections, Inc. v. United States, also known as the Tariffs Case or the International Emergency Economic Powers Act (IEEPA) case. The fundamental issue at stake is whether the President has authority under IEEPA’s grant of emergency powers to rewrite the United States tariff schedule. While IEEPA grants the President broad authority to “regulate . . . importation or exportation” of property as necessary to address “unusual and external threat(s)”, IEEPA does not specifically grant the authority to impose tariffs. The ability to impose tariffs has traditionally been viewed as a core aspect of Congress’s Article 1 authority to collect taxes, duties, imposts and excises, and to raise revenue.
There are two types of tariffs that have been imposed in this instance under IEEPA, and both are being challenged. “Trafficking tariffs” are directed at Mexico, Canada, and China, based on assertions that these countries have been insufficiently aggressive in stopping fentanyl coming into the US. “Reciprocal tariffs” have been applied more broadly, are intended to address US trade deficits with numerous countries; the administration has characterized both problems as national security issues.
The tariffs imposed under IEEPA authority are projected to collect over two trillions dollars in taxes over the next decade, paid by US importers. The Court of Appeals for the Federal Circuit, in holding that IEEPA did not grant the President the authority he seeks to use, cited the Major Questions doctrine, an invention of the Roberts Court era used to strike down executive action that the Roberts Court determines is so impactful that it requires clear statutory authority from Congress. The dissenters in the Federal Circuit case noted however that the Major Questions doctrine had never been applied to a national security case.
To date, the Roberts majority has largely upheld the actions of the Trump administration, to include its extensive use of emergency authority. In addition, the Supreme Court generally defers to Presidents on issues of national security. The tariff case presents claims of national security (in this case, the presence of large international trade deficits stretching back decades, and fentanyl imports from abroad to meet the demands of the US illegal drug market), as well as core Constitutional issues involving Congress’s Article One authorities.
What to look for?
The outcome of this case is difficult to predict. The current administration’s tariff policy is one of its signature issues, even as the use of IEEPA is unprecedented and the imposed tariff structure rivals that of the Smoot-Hawley tariffs of the 1930s. The Supreme Court has expanded the time for oral argument from the standard 60 minutes to 80 minutes, though it can be expected that oral arguments will go beyond the allotted time. If the questions turn on the national security aspects of the decision, to which Roberts has been as deferential to Executive authority as any time in recent history, then the use of IEEPA likely will be upheld. If on the other hand the questioning focuses on tariffs as a taxing mechanism, and collection of tariffs as a Major Question on which Congress needs to speak directly, then there may well be a different outcome.
Photo by Richard Cohrs on Unsplash.
