The U.S. Court of Appeals for the Federal Circuit (“CAFC”) upheld the Court of International Trade’s (“CIT”) decision in V.O.S. Selections, Inc. v. Trump, (CIT May 28, 2025), affirming that the IEEPA Tariffs (i.e., IEEPA Fentanyl and IEEPA Reciprocal Tariffs) are contrary to law, but vacated the universal permanent injunction. The court remanded the case to the CIT to “reevaluate the propriety of granting injunctive relief and the proper scope of such relief,” instructing the court on remand to reconsider injunctive relief under the four factors in eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388 (2006) and the Supreme Court’s intervening decision in Trump v. CASA, Inc., 145 S. Ct. 2540 (2025), which emphasize party-specific relief.
The CAFC also entered a separate order staying its mandate until October 14, 2025, to allow a petition to the Supreme Court for review of the merits. In response, on September 3, 2025, the administration filed a petition for a writ of certiorari, and separately, a motion to expedite, asking the Supreme Court to quickly decide whether to review the case. On September 9, the Supreme Court granted certiorari in V.O.S. and agreed to hear the appeal. The Court also granted certiorari before judgment in Learning Resources, Inc. v. Trump, (D.D.C. May 29, 2025) and consolidated that case with V.O.S. The Court approved the government’s motion to expedite, with all briefs due in late October and oral argument during the first week of November. Pending the Supreme Court’s disposition, the status quo persists and importers must continue to pay the IEEPA Tariffs while litigation continues.
Keep in mind, the majority of President Trump’s foreign policy has been dependent on the IEEPA Tariffs. If the courts ultimately reject that authority, it is likely that this would trigger a huge amount of refund claims and that the government would migrate to other trade tools to impose tariffs under other statutory bases (e.g., Sections 232 and 301).
