US: What to read on the Supreme Court's IEEPA ruling and what comes next

Last Friday, the Supreme Court handed down its long awaited decision in Learning Resources v Trump, finding that the President cannot use the International Emergency Economic Powers Act (IEEPA) to impose tariffs.

As expected, the Administration responded forcefully, referring to all of the other powers it has at its disposal to reimpose tariffs and starting things off with Section 122 of the Trade Act of 1974 to impose a 10% (or 15%?) tariff on most imports for 150 days.

There’s been a lot of commentary on the decision and what is coming next. I’ve collected some of the most useful of these in this post (welcome pointers to more in the comments or via email).

First up, two great pieces if you want an overall summary of the Supreme Court decision and the other powers the Administration has to levy new tariffs.

If you only want to read one thing on the decision and what comes next, Kathleen Claussen (as always) is the best place to start, covering the decision itself, options under Section 122 and Section 301, and what this means for all of the ‘deals’ the US has struck with other countries. Some key quotes:

Some commentators have argued that the Court’s decision significantly curtails the president’s “foreign policy” tariff power and that he can no longer threaten tariffs at a whim or, for example, to secure Greenland. Perhaps not so fast. Yes, the decision seems to have removed IEEPA from the immediate peacetime tariff toolkit – or at least the administration has accepted that is the case for the orders imposed last year. But, as noted above, the many other tariff authorities that are available to the president continue to give him the ability to impose tariffs, and quickly. The Court in its decision both commented that the other authorities include constraints on the president and also later acknowledged that the authorities are themselves rather capacious.

So, will we see a lot more litigation? Short answer: yes.

… But how can the administration legally maintain those rates [under its deals with other countries] in light of what the Supreme Court has said? As I wrote last June, the administration is likely to argue that it has authority to enter into the deals under IEEPA and that once entered into, the deals give rise to the rates, not IEEPA itself. The USTR also regularly relies on other arguments such as the president’s Article II authority and its organic statute for these sorts of agreements. Despite the weaknesses in those arguments, the administration may advance them in this context as well. … For foreign governments with implemented deals regardless of rate, the prudent political decision might be to just wait and see rather than re-open negotiations on an arrangement they believe to be durable, even if only lightly so. For those without finalized arrangements, the landscape may have just become more complicated.

Inu Manak, at the Council of Foreign Relations, also has a great piece on Section 122, Section 232, Section 301, and Section 338, what each of these sections allow and the limits on their use. From Inu’s piece:

Second, there’s lot of great trade lawyer commentary on the legal fall out from the Supreme Court Decision.

Simon Lester wrote on Section 122, looking at the White House’s justification for its conclusion that the US is facing “fundamental international payments problems” and whether Section 122 can be used to apply discriminatory tariffs between countries (Section 122 refers to exempting countries from import restrictions but otherwise appears to contemplate uniform restrictions being used).

Bryan Riley and Joe Bishop-Henchman also wrote on Section 122, providing a detailed argument for why the President’s use of Section 122 is not legal, with lots of quotes from economists to back up their position that the US does not face a fundamental international payments problem, and concluding that:

While Section 122 served a legitimate purpose within the fixed exchange rate framework that governed international trade over fifty years ago, it has no meaningful application in a modern floating exchange rate system.

Mona Paulsen dug into what the Supreme Court decision might mean for the framework agreements, deals, and other arrangements the US has negotiated since ‘Liberation Day’:

In sum, the EOs on the establishment and implementation of the trade/security deals do not resolve the fate of the negotiating trade/security deals that impose tariffs and implement a variety of economic security commitments. It does seem, however, that the executive has tried to quarantine its trade/security deals from the IEEPA reciprocity tariffs, for the executive can argue that the deals remain in effect as long as the emergency that gave rise to them persists.

The Hinrich Foundation also has a great piece by Dawn Shackleford on the WTO provisions relevance to balance-of-payments and what this means for the US’s use of Section 122:

Thus, it is extraordinary that the United States is justifying its latest round of tariffs under the rationale of a balance-of-payments crisis, even among a host of other “extraordinary” trade measures. If the United States seeks to justify this action at the WTO (which it is required to do under WTO rules), it will need to establish that it meets the requirements of GATT Article XII and the 1994 Understanding on Balance of Payments Provisions. … If the US measures are notified to the WTO, the IMF will be called upon to review whether the United States meets these thresholds.

It would surprise few if the United States does not notify the WTO of its new use of Section 122 tariffs. It would be ironic if the US does not notify the WTO given a key tenet of the US submission on WTO reform on December 2025 addresses the US position on transparency and notifications [was on the importance of Members complying with their transparency/notification obligations].

Finally, if you like numbers, graphs, and maps, here are some I appreciated.

Johannes Fritz at Global Trade Alert’s analysis of the Section 122 tariffs has all the relevant numbers, graphs and winners and loses:

The United States Studies Centre has a lovely interactive map of how the change from IEEPA has hit different countries:

And if you like maps, the New York Times as a whole bunch of them too.

That covers the most immediate and useful writings I’ve found so far. But things are changing rapidly, so if I’ve missed a great piece or take, drop a link in the comments or send me an email.

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