Smith said the administration’s decision to use the IEEPA as justification for the struck-down tariffs was likely made to move things along faster than it could have using other provisions of U.S. trade law. But the Court of International Trade argued that the tariff action was so sweeping it took authority away from Congress, which was granted the power to levy tariffs by the Constitution.
“It’s a constitutional question,” Smith told Fortune. “The Trump administration is taking it up no matter what, if they lose. The other side has already won—the Court of International Trade. So, if they lose the Court of Appeals, they’re going to want the Supreme Court to reinstate the earlier decision.”
Still, since Trump last defended tariffs in court during his first administration, several groundbreaking cases decided by the Supreme Court overturned precedents which could affect the administration’s odds.
“When, initially, those rulings were issued, a Democratic administration was in the White House, and the Republicans were very happy about it,” Gadinis told Fortune. “But now that the situation is reversed these rulings could suggest more checks on how a Republican administration interprets certain statutes.”
It’s not guaranteed the Trump administration will lose at the Supreme Court. Yet, during his first administration, Trump officials gathered evidence and followed set procedures—for example by opening an investigation into China on intellectual property, technology transfer, and innovation. The administration did not follow the same procedure for the recently struck down tariffs, said Gadinis.
“These kinds of principles—the procedural background was just not in place in this particular set of times. So, this seems broader than what (the courts) upheld back then, and therefore more likely to fall,” Gadinis told Fortune.
