Bloomberg survey "60% chance IEEPA-based tariffs may be illegal" Confident of victory under a Supreme Court with a Republican-appointed majority Some legal scholars predict "even the Supreme Court may not easily overturn on legal grounds" President Trump said he will promptly appeal the appeals court's tariff ruling to the Supreme Court, raising the prospect that whether reciprocal tariffs against trade partners such as South Korea, Japan and the European Union (EU) will remain in place could be decided as soon as early next year. According to foreign media on the 3rd (local time), President Trump said the administration would ask the Supreme Court for expedited review on the 3rd local time because a swift ruling is needed. Many U.S. legal and trade experts predicted the Supreme Court is somewhat more likely to overturn the lower court rulings and uphold the tariffs Trump imposed under the International Emergency Economic Powers Act (IEEPA). Some legal scholars, however, said that because the case involves assessing a president's exercise of powers not explicitly set out in the IEEPA, even a conservative-leaning Supreme Court might not easily rule as the Trump administration wishes. In a Bloomberg survey of experts, the IEEPA tariffs were assessed as having a 60% probability of ultimately being deemed illegal. Experts say this is because the U.S. Supreme Court is likely to find that "the imposition of tariffs under this law exceeded the president's authority." Of the nine justices on the U.S. Supreme Court, six were appointed by Republicans. Since Trump's inauguration, the Court has handed him several victories, including allowing the deportation of immigrants and permitting a ban on transgender military service. The U.S. federal circuit appeals court last Friday issued the same ruling as the lower court. It ruled that the IEEPA does not explicitly list tariffs among the regulatory authorities permitted in a national emergency, and therefore it did not grant the president unlimited authority to impose tariffs — that authority belongs to Congress. Senior administration officials, including Treasury Secretary Scott Bessent, nonetheless expect the Supreme Court to support imposing tariffs based on the IEEPA. They said that even if the appeals court decision is upheld, they will pursue other legal options. Current tariffs are scheduled to remain in place until October 14 under a stay imposed by the appeals court. Some U.S. legal scholars say the central issue before the Supreme Court will be how far an unenumerated informal regulatory authority for the president can extend. Therefore, even with a Court that leans conservative, they expect the Supreme Court may uphold the original trade court ruling regarding tariffs. John Verono, a former deputy U.S. trade representative appointed by Republicans and a partner at law firm Covington & Burling, told Reuters, "I do not believe the Supreme Court will so broadly interpret the IEEPA as to let the president rewrite tariff law as he wishes." Verono said the case will test the Supreme Court's "major questions doctrine." This principle holds that Congress must clearly authorize administrative agencies to make decisions of ‘vast economic and political significance.’ The principle was applied in 2023 in a case involving President Joe Biden. At that time the Supreme Court ruled 6-3 that Biden's cancellation of up to $400 billion in student loan debt exceeded his authority. The Court noted that the major questions doctrine had a major influence on that decision. Thus, a key question is whether the Supreme Court will apply the same standard to Trump's tariffs. The appeals court noted in its opinion that, compared with the student loan cancellation case, "the overall economic impact of tariffs imposed under the government's interpretation of the IEEPA is far greater." However, the current 6-3 conservative tilt of the Supreme Court could influence the ruling. Of the seven appeals court judges who voted against the IEEPA tariffs, six were appointed by Democratic presidents, though there were crossover votes among judges appointed by both parties. Ryan Majerus, a former senior Commerce Department official and partner at law firm King & Spalding, said, "The Supreme Court will ultimately have to decide whether the IEEPA allows the executive branch to impose tariffs (rather than Congress)." The Trump administration has already expanded tariff investigations under Section 232 of the Trade Expansion Act of 1962, which focuses on national security. Under that law it has imposed tariffs on steel, aluminum, automobiles and auto parts, and after semiconductors and pharmaceuticals it has recently begun an investigation into furniture imports. Treasury Secretary Bessent told Reuters that the 1930 Smoot-Hawley Tariff Act is another option. That law allowed the president to impose tariffs of up to 50% on imports from countries judged to be discriminating against U.S. commerce. Section 338 of that law has not been used for decades but could enable rapid imposition of tariffs. Trade lawyers say if the IEEPA tariffs are ultimately struck down, the Trump administration's biggest headache will be refunds of tariffs already paid. Majerus said importers can seek refunds by filing protests with U.S. Customs and Border Protection (CBP), and such disputes are likely to end up in litigation. As of August 25, CBP said tariffs imposed under the IEEPA totaled $65.8 billion (about 91 trillion won). This figure excludes tariffs imposed under Section 232 on steel and aluminum, and on automobiles and auto parts. Reuters reported that if the case is appealed to the Supreme Court this week, a final ruling is likely to be issued in early 2026. Contributing reporter Kim Jeong-ah kja@hankyung.com
September 3General