On November 5, 2025, the Supreme Court heard oral argument in Trump v. V.O.S Selections, 25-250, respecting the challenges to the Reciprocal and Fentanyl tariffs under the International Emergency Economic Powers Act (IEEPA). Technically, the argument concerned the Trump Administration’s appeal of a decision from the United States Court of Appeals for the Federal Circuit in V.O.S. Selections v. Trump, 25-1812, in which the IEEPA tariffs were found to be illegal.
More practically, the Supreme Court was considering the proposition from Project 2025, via the Trump Administration, that the President of the United States does not lead a coequal (with the Congress and the Courts) branch of government but rather leads an all-powerful executive branch of government. This interpretation of the Constitution is being described as the “unitary executive.”
The oral argument showed a three-way split on the Supreme Court. The three Democratic appointees — Justices Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson — appeared ready to affirm the Federal Circuit based on an interpretation of the IEEPA like that presented by the concurrence in the Federal Circuit. Under this analysis, neither the legislative history nor the language of the statute shows Congressional intent to allow the President to impose tariffs. From her questions, Justice Amy Coney Barrett was considering this position, too.
Justices Barrett and Neil Gorsuch appeared to consider affirming the result in the Federal Circuit based on the Major Question Doctrine. This doctrine holds that there must be clear evidence that Congress intended to grant the President authority normally reserved for Congress. Under Article 1, Section 8 of the U.S. Constitution, the power to levy tariff s, taxes and duties is reserved for Congress. From their questions, neither Barrett nor Gorsuch saw any evidence that Congress intended to grant that unchecked power to levy tariffs to the president in the IEEPA.
Consider in statutes where Congress has allowed the president to levy tariff s (e.g. section 232 of the Trade Expansion Act of 1962 or section 301 of the 1974 Trade Act), the power to impose tariffs is limited by duration, the requirement for reports and justifications, limitations on the goods that may be tariffed, the limitations on the purpose of the tariff and the amount of the tariff . These checks are absent from the IEEPA.
Justices Clarence Thomas and Samuel Alito appeared to be ready to reverse the Federal Circuit based on the unitary executive interpretation of the Constitution. Chief Justice John Roberts and Justice Brett Kavanaugh did not reveal as much of their approach as the others.
At times, based on the questions, both Roberts and Kavanaugh seemed inclined to reverse the decision based on the unitary executive theory. On other points, both seemed to be attracted to affirming the Federal Circuit based on the Major Question Doctrine.
The view of many observers of the oral argument is that there are five votes to affirm the Federal Circuit decision, which would raise the question about refunds. Indeed, Barrett raised this question with Neal Katyal, the attorney representing the Respondents, including V.O.S. He pointed out that those in the litigation would recover the tariff s paid in the litigation. He also noted that procedures exist under 19 CFR 24.36 for the administrative recovery of wrongly collected tariffs.
To the extent that anyone paid tariffs and has rights to recover them, the time is now to prepare the claim for reimbursement from the payor or the government, depending on the terms of the agreements under which the goods were sold by the importer to the claimant. Significantly, new cases attacking the tariff s are being filed daily, which would allow those litigants to claim refunds at the Court of International Trade (CIT).
This column presents a general discussion. This column does not provide legal advice. Please consult your attorney for specific legal advice.
Carol A. Sigmond
Partner
Nossaman LLP
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New York, NY 10017
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