The Court of Appeals for the Federal Circuit, en banc, affirmed the decision of the Court of International Trade (CIT) that the president has no authority under the International Emergency Economic Powers Act of 1977  (IEEPA) to unilaterally impose tariffs. Declaring an emergency does not empower the president to do whatever he pleases, even if he puts on a cool Liberation Day show.

Contrary to the Government’s assertion, the mere authorization to “regulate” does not in and of itself imply the authority to impose tariffs. The power to “regulate” has long been understood to be distinct from the power to “tax.” In fact, the Constitution vests these authorities in Congress separately. U.S. Const. art. I, § 8 cl. 1, 3; see also Gibbons v. Ogden, 22 U.S. 1, 201 (1824) (“It is, that all duties, imposts, and excises, shall be uniform. In a separate clause of the enumeration, the power to regulate commerce is given, as being entirely distinct from the right to levy taxes and imposts, and as being a new power, not before conferred. The constitution, then, considers these powers as substantive, and distinct from each other.”); Nat’l Fed’n. of Indep. Bus. v. Sebelius, 567 U.S. 519, 552, 567 (2012).

Other than the fact that it happened, it comes as no surprise that Trump had no authority to impose tariffs. But in affirming the lower court, the circuit court did something inexplicable. It stayed its ruling until October 14th, putatively to allow the administration time to appeal to the Supreme Court. That means the tariffs now in effect will continue, even though the court has ruled that there is no lawful authority to do so, for another month and a half. That makes no sense.

The circuit court based its refusal to enjoin the tariffs on the breadth of the CIT’s stay and the Supreme Court’s subsequent CASA decision.

An injunction “does not follow from success on the merits as a matter of course.” Winter v. NRDC, 555 U.S. 7, 32 (2008). Under “well-established principles of equity, a plaintiff seeking a permanent injunction must satisfy a four-factor test before a court may grant such relief.” eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388, 391 (2006). The four factors a plaintiff must establish to secure a permanent injunction are: “(1) that it has suffered an irreparable injury; (2) that remedies available at law, such as monetary damages, are inadequate to compensate for that injury; (3) that, considering the balance of hardships between the plaintiff and defendant, a remedy in equity is warranted; and (4) that the public interest would not be disserved by a permanent injunction.” Id. “The decision to grant or deny permanent injunctive relief is an act of equitable discretion by the [trial] court, reviewable on appeal for abuse of discretion.” Id.

This presumes that the acts being enjoined have any lawful basis in the first place. It’s one thing to stay a party’s actions that, but for the eBay test, would be lawful and permissible, and another thing entirely to enjoin acts that aren’t legal in the first place.

We need not decide whether the CIT abused its discretion by only articulating its analysis of the eBay factors some days after it issued its original opinion on the merits, nor whether the Government has shown any prejudice from the delay. Nor need we evaluate the sufficiency of the CIT’s explanation. This is because vacatur of the universal injunction is warranted based on the Supreme Court’s intervening decision in Trump v. CASA, Inc., 145 S. Ct. 2540 (2025).

The Supreme Court’s CASA, suggesting (as it was not a merits ruling) that universal injunctions exceed the equitable authority of the district court, throws a monkey wrench into the basic workings of the district court. How could a district court, or a circuit for that matter, provide viable relief when a president’s actions are unlawful and exceed his authority, if the court can’t enjoin the unlawful acts? Should the CIT enjoin tariffs only as to the named plaintiffs?

Not only would that be bizarrely inadequate relief, requiring essentially every person to sue for relief or be compelled to pay the tariffs, but it would leave in place actions already held to be beyond the limited authority given the president under the IEEPA. It may well be that the circuit court has no faith that the Supreme Court won’t bend to Trump rather than find the judicial branch in open warfare with the executive, but the same cynical outcomes could be accomplished by enjoining the tariffs and letting the administration go to the Supreme Court and seek a stay of the injunction. If the Supreme Court chooses to forsake its responsibility to adhere to the law, let it be on them and not the circuit court.

Now, the tariffs, already held unlawful, will nonetheless be allowed to continue for at least a month and a half, with importers paying and consumers being charged for the excess costs. There is no serious mechanism for consumers of tariff taxed goods to get their money back should the Court hold that Trump’s tariffs lacked authority under the IEEPA, and so the government gets to milk Americans to pay for the tariffs without recourse even if they are unlawful. And they are, and always were, unlawful. Hopefully, SCOTUS will do its job rather than try to weasel its way around Trump’s vindictiveness to avoid an open and flagrant constitutional crisis.