A recent Federal Circuit ruling has thrown the administration’s sweeping tariff program into doubt, raising major questions about presidential emergency powers, trade policy, and the limits of executive authority. John Vecchione and Mark Chenoweth break down the case, the court’s split opinion, and what’s next as the fight heads to the Supreme Court.

Mark Chenoweth: If you think that unwritten law doesn’t affect you, think again. Whether you’re a business owner, a professional, just an average citizen, you are unknowingly going to fall under vague and unofficial rules, and when bureaucrats act like lawmakers, they’re really restricting your liberty without the consent of the governed.

John Vecchioni: Welcome to Unwritten Law with John Vecchioni and Mark Chenoweth. And we have a lot of action on the tariff front, Mark.

Mark Chenoweth: Boy, do we. The Federal Circuit’s been busy.

John Vecchioni: The Federal Circuit’s been busy. Everyone’s been busy. I have a lot going on. So, last week, an opinion came out from the Federal Circuit. That’s the circuit that –

Mark Chenoweth: The day before Labor Day weekend.

John Vecchioni: The day before Labor Day weekend, exactly. You’d think they’d want to make news and wait until Monday, but no. But what they did was, they issued –

Mark Chenoweth: They wanted the president to enjoy his Labor Day weekend, John. I think that’s what it was.

John Vecchioni: Yes, and I’ll get into that a little bit, but what I found, it’s a seven to four opinion, and this, just to remind everybody, the Court of International Trade, all opinions of that court are appealed to the Federal Circuit, and the Federal Circuit sat on Bach, which means all of them except Judge Newman were on it. And as we’ve reported before, it wasn’t a good day at oral argument, but it was an especially bad day –

Mark Chenoweth: It wasn’t a good day for the president.

John Vecchioni: On opinion day.

Mark Chenoweth: But it was a good day for your side.

John Vecchioni: Good day for our side, yes.

John Vecchioni: That’s correct, but the government didn’t have a good day, and they continue not to have a good day. And what happened here is that seven of the –

Mark Chenoweth: That might be a problem with their position, John.

John Vecchioni: I know, that’s exactly right, so now, after the DC, district court, no court that’s reached the merits has found that IEEPA allows this. But here’s the state of play. I’ll first do the Federal Circuit opinion, because it’s interesting. Because seven of the judges, and the other thing here is, Republican and Democratic appointees didn’t matter too much.

They were on either side of the dissent and the main opinion, and I think the reason for that, as we’ll probably discuss, is their view of presidential foreign policy and national security power. So, what happened in this case is that all the tariffs were put in, our friend at Liberty Justice brought the Voss case, and Oregon and a number of other states brought cases all against basically all the tariffs.

Mark Chenoweth: Almost all blue states.

John Vecchioni: Yeah.

Mark Chenoweth: Maybe all blue states.

John Vecchioni: All blue states. No Republican attorney general has the –

Mark Chenoweth: Arizona always throws me there.

John Vecchioni: – has the intestinal fortitude, at this point. So in any event, so, what happened here is that seven of the judges say that, “Look.” And I should preface this. They’re bound by a case called Yoshida, and they could’ve overruled it, because they were sitting on Bach, but they said, “Look, we don’t have to do that, because you don’t even follow Yoshida.” The government had said that because Nixon put in under a previous law, Trading with the Enemies Act, under similar language or even the same language, he had put in tariffs when we went off the gold standard, and our balance of payments went higgly piggly. So, he had put them in –

John Vecchioni: It is, it’s a dismal science, but sometimes they get a good word. So, anyway, what happened was, so, they were always comparing it to those. But those were limited tariffs for a limited time, and at the time that statute had been put in was sort of maximum presidential power. But what happened in the interim is, what happened? The Watergate class came in, and they did everything on Earth to weaken presidential power all through the ‘70s. And they did it first to Nixon and then to Ford and then even to Jimmy Carter for a bit.

So, when the statute was amended to be IEEPA, they kept the language, but they had said, “Look, we’re trying to limit that power.” So, the real question here is, all it says is, the president has a number of powers if he declares an emergency. And that emergency has to be something having, as the government says, “Outside the United States.” And the emergency here is fentanyl for some of the tariffs, that it’s coming in from Canada and Mexico and China, although I’m not sure of the fentanyl dealers in Canada, but we’ll take the president at his word at this point.

And then, the other one was just the simple imbalance of payments is, and I think also industrial base, the loss of industrial base. Those are the emergencies. Now, those things have happened forever.

Mark Chenoweth: It reminds me a little bit of running to water the plants, John, you know? If you’ve forgotten this long –

John Vecchioni: Exactly.

Mark Chenoweth: It’s not clear you have to run to water your plants.

John Vecchioni: I think that’s right.

Mark Chenoweth: If the balance of payments has been off this long, I’m not sure it’s an emergency.

John Vecchioni: Exactly. But we, I think, now, our friends have said that the courts should say there is no emergency. I think the courts, they didn’t do that here. I think they’re always going to be reluctant. They have to let the president decide on emergencies. The real question here, and I was reading an article about it today is, what do you do when the president is willfully not really following emergencies? And I think the Supreme Court, because what’s happened, and I’ll get to – let’s go through this, and then I’ll say what happened.

So, what happened is, they said, “Listen, these tariffs don’t match the emergency you said, and they don’t make a lot of sense to some extent, because they’re on everybody, whether you have a deficit or not deficit, they’re on everybody.” But they felt that the fit was really, didn’t happen here, and that you couldn’t put in these tariffs is what they said. The majority said.

But then there was a concurrence that said, “I believe in the majority all the way,” but four of the judges said, “Look. Regulate imports does not include the ability to put in tariffs, which is our position, and which is our position why it shouldn’t be in the CIT and why it shouldn’t be in the Federal Circuit, should just be in the district courts.” It’s as if, if the administration said, “Well, under the Social Security Act, I am going to put in tariffs,” right? Do we then go to the CIT? We don’t go to the CIT then, no matter whether they’ve changed the tariff schedule or not, once he’s ordered it under the Social Security Act.

Mark Chenoweth: Because that act does not have anything to do with tariff power for the president.

John Vecchioni: No, exactly, nor does IEEPA. So what happens is –

Mark Chenoweth: I’m with you.

John Vecchioni: So, the concurrent says, “So, we should end this now. IEEPA doesn’t allow tariffs,” because the majority opinion allows the administration to sort of go through the opinion, decide, “Well, what tariffs would be allowed?” And he’d still be able to do it unilaterally without any of the protections that the other tariff statutes had. But then, the administration did get some news. For the first time ever, four judges bought their argument. Now, this –

Mark Chenoweth: And three of those judges were familiar.

John Vecchioni: Yes. They are the main people who are keeping Judge Newman off the bench and not transferring the case to any other judges so that the witnesses, to a lot of the things they accuse her of, are judging her. So, that’s a story for another day, and I’ve said it before, but yes. It was interesting that Taranto wrote it and Judge Moore was there.

Mark Chenoweth: And Judge Prost?

John Vecchioni: Exactly, and Judge Prost.

Mark Chenoweth: The three amigas.

John Vecchioni: They got a fourth. So, but they say it’s all fine, that “regulate imports” includes the lesser – the ability to tariff, because tariffs can be used to regulate imports, right? And the craziness of this is, well, with all these tariff statutes that are in the section of a tariff law under the US Code, with IEEPA is not, they say “impost” or “tariff” or “duty” or something, and these are not new words. We’ve known these words since the founding.

Mark Chenoweth: In fact, they’re in the Constitution.

John Vecchioni: They’re in the Constitution. So, tariff may is not, I think it’s duties and imposts.

Mark Chenoweth: It’s duties, imposts.

That’s what you have to believe to believe the dissent. And they said they have a very strong presidential foreign policy power view, and their view is, he’s got all the power in foreign policy and national security. But he doesn’t have all the power in national security and he doesn’t even have all the power in foreign policy because of a treaty.

Mark Chenoweth: Well, he doesn’t have the power to declare war. That’s Congress, right?

John Vecchioni: Treaties.

Mark Chenoweth: Yeah, and something like an embargo, trade embargo, that’s covered by IEEPA.

John Vecchioni: But I will say this. Everybody who thinks this is unconstitutional and unlawful was very happy on Friday, and we had a very happy Labor Day, but I’m sure our friend John Sauer did not have a happy Labor Day, because on the Monday following –

Mark Chenoweth: Well, because they had filed a 28(j) letter in the morning, and they got this decision in the afternoon.

John Vecchioni: Right, and did we discuss that 28(j) letter?

Mark Chenoweth: I don’t think we did. I think it was a second 28(j) letter in the same case. We discussed the first one they filed but not the second one they filed.

John Vecchioni: Well, they filed a 28(j) letter that was ridiculous, and the point of 28(j) is if you have new authority. Some other court case, basically. You can file it before an appellate court after you’ve argued, so they don’t get the law wrong, because there’s some either controlling or persuasive authority. And their authority was trade deals and things that the administration had done and how bad it would be if this was all unraveled. Which is not proper 28(j) letter, and these are the greatest trade deals ever.

It was very, it could’ve been a Truth Social tweet, really, which is just not something you’re used to seeing now. I will say this. The federal circuit didn’t mention it. They passed with silence over the 28(j) letter.

Mark Chenoweth: I think perhaps they were done with their writing at that point. They didn’t feel a need to revisit it. There was nothing that compelled them to –

John Vecchioni: I think that’s right.

Mark Chenoweth: – tighten anything up that they had said.

John Vecchioni: So, this case, now, the question –

Mark Chenoweth: Which is shorter?

John Vecchioni: And by the way, I would just say, the Federal Circuit then said – they remanded it. They said, “We’re going to get rid of your injunction, we’re not going to have an injunction because of CASA v. Trump, which says no nationwide injunctions, we’re going to have you look at the APA and everything else and then tailor your injunction.

Which is a travesty, in my view, because the government wanted to be in the CIT, and the reason they want to be in the CIT is because you have to have uniform tariffs under the Constitution, and this is what this is for, and what are they going to do? They’re going to have an injunction just for this guy and not that guy? That’s a constitutional violation right there.

Mark Chenoweth: You couldn’t be more correct, John, because they’re the ones who demanded to be in this court, and now they’re trying to say that you can’t have a nationwide injunction? The whole point is, you said that this court has jurisdiction over this issue. If that’s true, then what it says goes for everyone, not just for these plaintiffs, not just in this case.

John Vecchioni: Right, and also, I think there’s a constitutional problem if tariffs aren’t uniform, by court order or anything. It’s unconstitutional for any branch of the government to do that, because they didn’t want favoritism for one state or one industry on the tariffs, because you can’t, there can be no tariffs or taxes on exports in the United States. That’s not true everywhere, but it’s in our Constitution. For imports –

Mark Chenoweth: In Canada, for example, it’s not true.

John Vecchioni: Yeah, they got internal.

Mark Chenoweth: They’ve got internal ones in Canada. We should keep making fun of that, by the way, until the Canadians figure out –

John Vecchioni: Absolutely, exactly.

Mark Chenoweth: – what a free market looks like. Might be a while.

John Vecchioni: Well, even a nation, I mean – anyway. Well, they sometimes say they’re more federal than us. Maybe that’s true, but in any event, I do think that the CIT, if they’re correct, and I don’t believe they are correct on where it should be, then it’s got to apply to everybody. So, I thought the remand was kind of ridiculous, but maybe it was a compromise, I don’t know, but what they also said is, they kept the mandate from issuing, meaning, no stay, the order isn’t enforced until October 14th, and they gave the SG and the Justice Department time to go petition the Supreme Court.

And lo and behold, they have petitioned the Supreme Court, and they’ve petitioned the Supreme Court in – well, first of all, I will say this. Trump said that it was an unfair and biased court, right? So, we have been subject to all these motions to transfer to this obscenely biased court.

Mark Chenoweth: That’s right, the one they insisted on being in.

John Vecchioni: And we fought like maniacs to stay out of the CIT, and then I understand that it’s biased and unfair, and now I should’ve put that in my briefs. We don’t want to go somewhere that’s biased and unfair. We want a fair tribunal.

Mark Chenoweth: That’s right, that’s right, and our fine opponents on the other side shouldn’t either.

John Vecchioni: Yeah, exactly, exactly.

Mark Chenoweth: Should that be a 28(j)? Do we put in, into, in response to the motion to transfer in the Fifth Circuit?

John Vecchioni: I think it’s a deep state plot, because Trump obviously thinks they’re biased and unfair, and here are his people going and bringing him there. It’s very, it’s terrible stuff. So.

Mark Chenoweth: Maybe the three amigos gave him bad information.

John Vecchioni: So, but the thing is, the SG has made a petition for certiorari, and has asked for emergency briefing. And they’ve asked for the petition to be decided by September 10th, and then they’ve also asked for then briefing to be finished sometime, I think it’s going to be late October, right? They’re asking for it fast.

Mark Chenoweth: Was that a good decade economically, John?

John Vecchioni: It did not work out well.

Mark Chenoweth: Oh, okay.

John Vecchioni: And I don’t think you have to be Amity Shlaes to believe that. So, she wrote this book, Forgotten Man, it was very good, but nonetheless, the other thing is, they also put in a letter, which is the thing that is kind of – I’m focused on it, because I’ve never seen such a thing. They put in a letter from a parent in Oregon whose child died –

Mark Chenoweth: Who’s “they” here, just to be clear?

John Vecchioni: The solicitor general of the United States put in a letter, attached it with the Bessent letter asking for this, because this parent, and I don’t know if it was a mother or father, but they had – their child had died from an overdose of fentanyl, and in the letter, they attacked Ron Wyden that he allowed this all this time, and then Oregon is one of the plaintiffs, and the plaintiff wants this to keep happening, and I live in Oregon and I don’t want this to keep happening and Oregon’s being bad by doing all this.

Well, that’s a jury argument, but I cannot imagine, professionally, it is absolutely unbelievable that they’ve done this and asked the court to take them seriously when they’re attacking Ron Wyden. You know who Ron Wyden voted to confirm?

Mark Chenoweth: Chief Justice Roberts?

John Vecchioni: Bingo, and also, it’s not the sort of thing which is going to help with people like Amy Coney Barrett or, I would say even Kavanaugh. There’s a professionalism that it pokes in the eye, let’s put it that way. And so, they’ve basically said that the whole economy requires this, and their trade deals have to be done, and that’s the emergency and why the court has to take it. Now.

Mark Chenoweth: It almost sounds like what they’re saying is, “If you don’t vote for us, there’s going to be an emergency.”

John Vecchioni: Yeah.

Mark Chenoweth: But that’s not the standard for an emergency.

John Vecchioni: Right, well, they say right now it’s an emergency because it’s interfering with our foreign policy, because we can’t make foreign policy deals. Which, by the way, aren’t treaties. None of these things that I’ve ever seen, they’re not in writing. It’s kind of a thing they do. So, I do think, and then the petition for cert goes through IEEPA and says why they can do it, and it’s basically the dissent. It’s like, we’ve got all these powers, we’ve got all these foreign policy powers.

The Congress knew about this language and everything like that, but the problem, so, I’ve also learned, I think it’s just been filed. The learning resources people have asked for their petition, which is still outstanding, to be considered at the same time as the government’s petition for certain Voss.

Mark Chenoweth: Wasn’t this the petition that they sought?

John Vecchioni: Yeah, but they sought accelerated –

Mark Chenoweth: It started in advance, yeah.

John Vecchioni: They sought accelerated.

Mark Chenoweth: I thought that was already turned down.

John Vecchioni: They turned down the acceleration.

Mark Chenoweth: Ah, okay.

John Vecchioni: That petition for cert is still standing out there.

Mark Chenoweth: I see. So, they’re saying, “Look, if you’re going to do one, do both.”

John Vecchioni: You got to do both, which I’m for, actually. I think the jurisdictional question is huge, and I will say, everything should be before the court is what I hope. But –

Mark Chenoweth: No reason to piecemeal it.

John Vecchioni: Right, and I think the Voss folks, at least the petition, says that they’re okay with this, because obviously, they want to get to court faster, right? Everyone does, but I don’t think they probably agree it’s an emergency for the government.

Mark Chenoweth: So, the Voss folks have said it’s okay to do learning resources, or they haven’t?

John Vecchioni: No.

Mark Chenoweth: They haven’t weighed in yet?

John Vecchioni: Not learning resources.

Mark Chenoweth: The government.

John Vecchioni: An accelerated briefing schedule.

Mark Chenoweth: Oh, an accelerated briefing schedule.

John Vecchioni: Yeah, yeah, yeah, not that, but an accelerated briefing schedule. You can see why. I don’t think they believe in the emergency that Bessent’s put in, but they – it’s a matter of, look, you want to get this to the Supreme Court as fast as you can, right? You’d be crazy not to want that. I almost thought you were going to lose, and I don’t think they think they’re going to lose.

Mark Chenoweth: Right, so, give me the tick-tock here. What’s going to happen between now and the end of October?

John Vecchioni: So, first, oh, by the way, one last thing. All the other cases, the cases in the Ninth Circuit supposed to be ordered September 17th. The learning resources supposed to be argued September 30th. The government is asking for all of them to be held in advance.

Mark Chenoweth: I don’t think the DC Circuit will do that.

John Vecchioni: Well, I don’t think the Ninth will either. I hope they don’t, because here’s the thing. They asked for it to be held in advance or think they’re going to, so that the Supreme Court can decide the petition for cert, well, the court should keep operating. If cert is granted, maybe they’ll have an argument, but I still don’t think they have an argument, because these are the same people less than a year ago who told us in CASA v. Trump that you want all the circuits to percolate and that helps the Supreme Court make decisions, because you got all these legal judges making these decisions and it’ll help them all enormously, and they –

Mark Chenoweth: Less than a year ago. I think that was June.

John Vecchioni: June.

Mark Chenoweth: Of this year.

John Vecchioni: Yeah, exactly. So, I think that, well, yeah. It was June, the argument was in June, yeah. So, the fact is, I think that it’s going to be difficult for them to do that. Of course, it’s discretionary, so we don’t know what’s going to happen, but I think the court’s going to make a decision. They’re probably going to check their calendar. They may not think it’s so vital to speed up the briefing, right? I mean, they might not. You don’t know. I can’t predict the Supreme Court on that.

Mark Chenoweth: Kind of give at least a couple weeks to each side.

John Vecchioni: Right, well, they’re going to give a couple. That’s why I say end of October. If they, let’s say tomorrow they all met and said, “Boy, we really want to take this. Look, the Oregon letter from the parent, I really think I need to take this case.” Let’s say they did that. Then you’d have, I mean, it would be really fast briefing to get done by the end of October. I don’t know that the court is going to agree to that. It might. If it does, I’m ready to put in an amicus, I’ll tell you that.

Mark Chenoweth: Yeah, I don’t know when it will be heard in November, but I bet it’ll be heard in November. The oral argument, we’ll see. May not be the first day in November, but I think it’ll be in November.

John Vecchioni: Yeah, they may say, “Hey, look. We want an extra 30 days. We don’t want to have to do that.” But it is true, I mean, it’s not like they have a very caseload coming up. They have kept, by God, they’ve kept their slate clear.

Mark Chenoweth: Kept their patter dry.

John Vecchioni: Kept their patter dry.

Mark Chenoweth: And here’s their chance to explode it all.

John Vecchioni: So, that’s what you have. You have an effort by the government not only to get to the Supreme Court quickly, and I will say this. I think they’re going to lose, and I been saying this. I’m going to eat a lot of crow if I’m wrong.

But I’ve been saying, I have thought that this case would be nine-zero, at most seven to two, because there’s no one on the court who wants to leave around, I call it the idea that regulation, when you – Congress uses the word “regulation,” it includes the subset of taxation power. That’s like Chekhov’s gun on the mantelpiece. That’s going to go off in so many cases in front of their faces down the road. It’s unbelievable. So, I don’t –

Mark Chenoweth: That is not a narrow ruling.

John Vecchioni: It is not a narrow ruling, and they’re going to say, “Oh, it only applies when it’s within ports and stuff,” but no lawyer’s going to take that for anything, and they’re going to be pushing at the edges of it all the time.

Mark Chenoweth: Well, no bureaucrat’s going to either.

John Vecchioni: Right.

Mark Chenoweth: They’re going to all pretend that, oh, look, look at the tax power that we’ve just been given.

John Vecchioni: Correct, and obviously, I think that Loper Bright and Relentless, the statute, and so, here’s how – I’ll make my prediction now, early, but here’s what it is. I think that a pure textualist reading of IEEPA doesn’t give you tariffs, and that’s the end of it. They don’t have to get to major questions.

They don’t have to get to non-delegation, because if they do, there’s real, powerful major question in non-delegation stuff in there, so why get to it? And I think that John Roberts is going to want a nine-zero decision, because this is the major – besides immigration, this is the major policy of this administration, and if you are going to strike it down, you better have all hands onboard.

Mark Chenoweth: Yeah, you don’t want a five-four if you can avoid it.

John Vecchioni: Correct. So, I believe they will rule on pure textualism, and my girl Kagan, you know, she’s going to be in there, citing Gorsuch on this, Roberts on this, Alito on this. She’s just going to quote them back to themselves on pure textualism all the way, and I don’t think she’ll have to quote Barrett anything. I think she’s onboard already. I count four from the get-go who aren’t going to buy the national security foreign policy thing. So, I’m going to eat a lot of crow, because I have done what we shouldn’t do. I’ve gone out on a limb and say what’s going to happen, but I do that –

Mark Chenoweth: You’re putting a lot of faith in Kavanaugh, John. That’s all I’m going to say.

John Vecchioni: I haven’t said anything about him.

Mark Chenoweth: You said nine-oh.

John Vecchioni: I did. I did say –

Mark Chenoweth: Or seven-two.

John Vecchioni: I did say that, he has, but he has said his only caveat is, he’s said the Major Questions Doctrine doesn’t apply to presidential, but he doesn’t have to get there. If it’s pure textualism, he doesn’t have to go. So, I think he’ll come along, and I also don’t think that he is enough of a presidential powers guy, even though he was in the White House, to have a dissent against all nine of them on this. This isn’t the hill he’s going to die on.

Mark Chenoweth: No, probably not. President Bush didn’t agree with this interpretation of IEEPA either. So, this decision was at the United States Court of Appeals for the Federal Circuit VOS Selections Inc. v. Donald J. Trump, and the decision was handed down August 29th. You’ve been listening to Unwritten Law. As we like to say here at NCLA, let judges judge, let legislators legislate, and stop bureaucrats from doing either.

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Duration: 24 minutes