On Tuesday, May 13, a three-judge panel of the US Court of International Trade will hear a lawsuit asking it to strike down President Donald Trump’s recently imposed tariffs. The case is known as V.O.S. Selections v. Trump.

The trade court, a New York-based federal court that hears lawsuits related to US trade laws, will not be the last word on this high-stakes dispute, which is likely to wind up before the Supreme Court. The trade court, however, is poised to have the first word — meaning the May 13 hearing will offer the American public its earliest window into how federal courts view the tariffs.

The plaintiffs in V.O.S. Selections, small businesses that import goods and thus must pay the tariffs, have two significant advantages.

One is that their legal arguments are quite strong. Under the Supreme Court’s “major questions doctrine,” courts are supposed to cast a skeptical eye on, and typically reject, executive actions “of vast ‘economic and political significance.’”

According to the Yale Budget Lab, Trump’s tariffs are expected to reduce the average US household’s income by the equivalent of $4,900. If that’s not a matter of vast economic and political significance, it’s hard to imagine what is.

Two, about a dozen former Republican officials and other GOP luminaries filed an amicus brief calling on the trade court to rule that the tariffs are illegal. They include three former senators, a former US attorney general, and several former federal judges. Among them is former Sen. John Danforth, a mentor to Justice Clarence Thomas who gave Thomas his first job out of law school. The Supreme Court’s Republican majority is often responsive to conservative legal elites and prominent members of their party.

That said, it is far from certain how the trade court — and, ultimately, the Supreme Court — will see this case. The major questions doctrine is brand new, and it has only been used in the past to strike down policies created by the Biden administration.

Three ways the courts could approach Trump’s tariffs

Broadly speaking, the courts could decide V.O.S. Selections (or any of several other lawsuits challenging the tariffs) in one of three ways:

• Uphold the tariffs: This outcome would be pretty straightforward; the tariffs would stand, and Trump would retain the power to impose very high taxes on imports.
• Strike the tariffs down on statutory grounds: Trump primarily relied on the International Emergency Economic Powers Act of 1977 (IEEPA) when he imposed his tariffs. Both the plaintiffs and the amicus brief argue that this statute does not authorize Trump to do so. If the courts buy this argument, it would provide temporary relief from Trump’s trade war. But the Trump administration could try to reimpose the tariffs under a different statute, the Trade Act of 1974, which states more explicitly that the executive branch may “impose duties or other import restrictions” on foreign goods — albeit after a more drawn-out process that could delay the reimposition of the tariffs.
• Strike down the tariffs on more permanent grounds: The plaintiffs primarily argue that the tariffs violate the major questions doctrine and a closely related legal doctrine known as “nondelegation.” Both doctrines empower the courts to strike down executive actions, even if those actions are explicitly authorized by a federal statute. Thus, if the Supreme Court relies on one of these doctrines to strike down the tariffs, it probably means that they are gone for good unless Congress uses its own authority to enact the same trade restrictions.

So what are the legal arguments in V.O.S. Selections?

The IEEPA permits the president to “regulate…transactions involving, any property in which any foreign country or a national thereof has any interest.” This power, however, “may only be exercised to deal with an unusual and extraordinary threat with respect to which a national emergency has been declared.”

The strongest statutory argument against the tariffs is that Trump has not identified an “unusual and extraordinary threat” that can justify these tariffs. In his executive order laying out the rationale for most of his tariffs, Trump claims they are necessary due to “large and persistent annual U.S. goods trade deficits,” meaning that the fact that there are many countries that buy more US goods than they sell to Americans constitutes a “national emergency that this order is intended to abate and resolve.”

But, as the amicus brief argues, this trade deficit is hardly unusual or extraordinary — rather, it is the result of “economic trends spanning more than two decades.” Emergency powers, the brief argues, cannot be used to address “longstanding policy grievances” that have existed for many years — those are the sort of grievances that can be addressed through legislative debate and congressional action. Emergency executive action, the argument goes, should be reserved for actual emergencies where there is no time for Congress to act.

In response, the Trump administration argues that courts may not review a president’s decision to declare a national emergency. It even cites a federal district court decision claiming that “no court has ever reviewed the merits of such a declaration.”

While that may very well be true, the IEEPA does not simply say that the president must declare an emergency before using any powers granted by that statute. It uses much stronger language, saying that these powers “may only be exercised to deal with an unusual and extraordinary threat.” Thus, even if courts cannot review Trump’s decision to declare an emergency, opponents of the tariffs have a strong argument that judges can inquire into whether decades-old trade deficits actually constitute an “unusual or extraordinary threat.”

Even if the IEEPA can be read to permit tariffs, the major questions doctrine suggests that courts should read the statute narrowly if it is at all possible to do so. As the Supreme Court said in Utility Air Regulatory Group v. EPA (2014), “we expect Congress to speak clearly if it wishes to assign to an agency decisions of vast ‘economic and political significance.’” That is, if a law doesn’t explicitly grant the executive branch a power, it doesn’t have that power.

In response, Trump’s lawyers make two closely related arguments. They claim that the major questions doctrine does not apply to actions taken by the president, and that it especially does not apply to presidential actions that touch upon foreign policy. As Trump’s brief claims, “the major-questions doctrine has never been applied to the President’s authority to address national-security interests or other circumstances where the President has independent authority.”

That statement is true. Again, the major questions doctrine is brand new and has never been used to strike down the policies of any president not named “Joe Biden.” All of the Biden-era cases invoking this doctrine involved domestic policies that technically were promulgated by agency leaders under Biden’s supervision (or, in one case, a holdover policy from the Obama administration) rather than by a direct order from Biden himself.

It is difficult to predict how the courts will respond to Trump’s arguments. The major questions doctrine was made up by the Supreme Court and appears nowhere in the Constitution or in any federal statute, so lower court judges have very little to go upon when they are asked to apply it to new situations.

To my knowledge, only one federal judge — Ryan Nelson, a Trump appointee — has addressed the question of whether this doctrine applies to presidential actions. Nelson concluded that it does, in large part because the Supreme Court rooted this doctrine in separation-of-powers concerns that apply equally to any member of the executive branch, including the head of it.

It is also unclear how the courts will respond to Trump’s suggestion that the major questions doctrine applies with less force on matters of foreign policy. It is true that the courts are often deferential to the elected branches on questions of foreign affairs, but Trump’s tariffs aren’t just a foreign policy matter. They are one of the largest tax hikes in recent American history and one of the most consequential domestic policies enacted in many years. Trump justifies the tariffs in large part because he believes they will increase the number of Americans employed in domestic manufacturing jobs.