How the Supreme Court’s Inconsistent Approach to Granting Emergency Relief Will Exacerbate, Rather Than Mitigate the Disruption Its Emergency Stay Policy Is Supposed to Address

LARC @ Cardozo Law LARC @ Cardozo Law

Cardozo Law Review de•novo

Journals

How the Supreme Court’s Inconsistent Approach to Granting How the Supreme Court’s Inconsistent Approach to Granting

Emergency Relief Will Exacerbate, Rather Than Mitigate the Emergency Relief Will Exacerbate, Rather Than Mitigate the

Disruption Its Emergency Stay Policy Is Supposed to Address Disruption Its Emergency Stay Policy Is Supposed to Address

Harvey L. Reiter

de•novo

HOW THE SUPREME COURT’S INCONSISTENT APPROACH TO GRANTING EMERGENCY RELIEF WILL EXACERBATE, RATHER THAN MITIGATE THE DISRUPTION ITS EMERGENCY STAY POLICY IS SUPPOSED TO ADDRESS

Harvey L. Reiter†

The federal government has used the Supreme Court’s emergency or “shadow” docket to great effect this past year, securing stay after stay of lower court rulings that had blocked many of the President’s executive orders. But the Court’s rulings have come, almost invariably, without any explanation of its reasoning. And its opaque and uneven rulings have also come at a potential cost to the Court’s credibility. This Article illustrates the uneven nature of the Court’s rulings by contrasting two lines of cases: (1) the Court’s stays of lower court rulings restoring to their positions FTC, NLRB, EEOC, and MSPB members who had been fired by the President without cause and (2) its ruling denying expedited relief to importers who have been harmed by the massive tariffs the President has imposed on them. The Article urges the Court to be more transparent in its shadow docket rulings to bolster public confidence in the Court.

Unlike lower court stays or injunctions, a Supreme Court stay in its emergency docket—or what University of Chicago law professor William Baude first called its “shadow docket”1—does not necessarily signify a likelihood of success on the merits, or even irreparable harm. Rather, it aims “to balance the equities as the litigation moves forward.”2 But the Court’s uneven and opaque balancing has played out to dramatic and vastly different effect with respect to President Trump’s executive actions in two areas that have garnered lots of national attention: His firing without cause of a dozen members of independent regulatory commissions—the first such firings in ninety years—and his unilateral imposition of the highest tariffs since the Great Depression3 on imports from over a hundred nations.4

On the one hand the Court has issued emergency orders staying lower court rulings ordering the President to restore the fired members to their positions.5 On the other hand, it has denied an importer’s emergency petition for expedited review of a lower court ruling holding the tariffs illegal.6 The Court’s brief twofold explanation for its emergency stays was (1) that the potential harm to the President’s exercise of executive power outweighed the harm to those “wrongfully removed” from office7 and (2) that the potential “repeated removal and reinstatement of officers” while their lawsuits are pending would be “disruptive.”8 At the same time, the Court offered no explanation for its refusal to expedite review of a stayed lower court ruling invalidating the President’s tariffs9 (a decision the government asked for the same expedited treatment of a parallel Federal Circuit case also invalidating the tariffs).10 Yet, as discussed below, the latter refusal to grant emergency review promised to be far more disruptive: It was almost certain to exacerbate the enormous economic uncertainty posed by the President’s unilateral actions.11 This will become clear from a comparison of the two sets of cases.

it would reverse—also without explanation—when

I.

In a series of directives going back to January of last year, the President has fired the Chair of the National Labor Relations Board (“NLRB”),12 two members of the Equal Employment Opportunity Commission (“EEOC”),13 two members of the National Credit Union

Administration (“NCUA”),14 three members of the Consumer Product Safety Commission (“CPSC”),15 the Chair of the Merit System Protection Board (“MSPB”), two of the Federal Trade Commission’s (“FTC”) Commissioners16 and the Chair of the Federal Labor Relations Authority17—all without cause and all Democrats. While not all of the dismissed members sought judicial relief, at least one fired board member/Commissioner from each of the affected agencies filed suit— and all of them obtained injunctive relief and were restored to their positions18—that is, until the Supreme Court intervened.19 The rationale in each case was the same and quite predictable.

First, the President gave no reason for their dismissal.20 But as Justice Kagan noted in dissenting from the Court’s stays, the statutes under which each officer was appointed gave these board members/Commissioners fixed terms of office and permitted dismissal by the President only for cause, such as malfeasance, dereliction of duty, and the like.21

Second, and critically important, the Supreme Court had held ninety years earlier, in Humphrey’s Executor—a unanimous precedent upheld a number of times by the Supreme Court in the ensuing years—that the for

cause protections given to members of the Federal Trade Commission did not violate separation of powers principles.22 As Justice Kagan noted in that same dissent, affirming identical protection for members of other multi-member administrative agencies was an “easy” call for the lower courts:23

As members of lower courts, the judges hearing the cases are bound by that precedent.25 That makes the Supreme Court’s concern about the “disruptive effect of the repeated removal and reinstatement of officers” while their cases are litigated so difficult to understand.26 The district courts’ rulings have been unanimous.27 Had the Court not granted the stays and strongly encouraged the lower courts to follow its lead28 (one did29 while another found the Supreme Court’s stay as to the NLRB and CPSP members the FTC Commissioner would not tip the balance on that Commission),30 the lower court orders that restored the fired individuals to their positions would simply have remained in effect while the litigation proceeded.

inapplicable since

the dismissal of

No more satisfying is the Court’s additional explanation “that the Government faces greater risk of harm from an order allowing a removed

officer to continue exercising the executive power than a wrongfully removed officer faces.”31 But what “executive power” could the “removed officer” have exercised, exactly? A removed officer in the minority could not have controlled the agency’s decisions. And, in the case of three of the agencies—the EEOC, NLRB, and the MSPB (the CPSP can operate with a quorum of two)—the firings robbed each agency of the quorum needed to act on pending cases.32 In those cases, doesn’t that leave the President’s remaining chosen officials without executive power? Valid employee claims remain in limbo and employers wrongly accused lack the ability to vindicate their conduct as well. That seems pretty harmful—not to mention at odds with Congress’s Article Iprotected desire to create functioning agencies—even if the Court has strongly hinted that it may overturn Humphrey’s.

Other factors are also at play. A President does not control the votes, even of his own appointees. They are bound to act in accordance with their agencies’ enabling legislation. And collective decisions made by a multimember board or commission other than concerning discretionary enforcement decisions are presumptively subject to judicial review under the Administrative Procedure Act (“APA”).33 The tenuous connection between protecting the President’s executive powers and the potential actions of an individual board/commission member in a multi-member agency are still further attenuated by the fact that dismissing a minority of agency officers will not change the outcome of agency action governed by majority vote. As for control over the agency, seventy-five years ago Congress gave Presidents the authority to select the Chairman from among sitting Commissioners of a number of independent administrative agencies.34 The enabling statutes of other administrative agencies such as the FTC,35 FCC,36 and NLRB37 vest that same power in the President. The Chairs of these agencies enjoy considerable power to control an

agency’s agenda and priorities.38 If one is balancing the equities, as the Court states is its guiding principle for granting emergency relief, then dismissing a board/commission member who cannot affect the outcome or control the direction of the agency would cause no material harm.

The current administration itself has made a similar argument in defending an NLRB decision before the Fifth Circuit in Space Exploration Technologies Corp. v. NLRB.39 There, SpaceX, like the Administration itself, has challenged the constitutionality of for cause protections against dismissal accorded NLRB members. But the government’s attorney disputed SpaceX’s argument that this renders all decisions of the NLRB invalid, including the agency’s decision to initiate unfair labor practice proceedings against it.40 Citing Collins v. Yellen,41 the government argued that SpaceX could not show harm because Collins said litigants bringing removal restriction claims had to show some connection between the President’s desire to remove the official and the action taken against the litigant.42 In its recent decision, a Fifth Circuit panel rejected the Administration’s argument, distinguishing Collins v. Yellen on the grounds that it is limited to challenges for “past agency conduct,” not challenges to “the ongoing proceeding itself.”43 But this distinction seems flawed in two respects. The NLRB’s decision to initiate proceedings was itself “past agency conduct.” Perhaps more important, the Fifth Circuit conflates the collective executive powers of the NLRB, i.e., “agency conduct,” with the executive power, if any, of an individual officer of a multi-member agency.

Collins v. Yellen involved, among other things, a challenge by Fannie Mae and Freddie Mac shareholders to the authority of the Federal Housing Finance Agency (“FHFA”) to bail out Fannie Mae and Freddie Mac in the aftermath of the 2008 subprime mortgage crisis.44 FHFA had no such authority, they claimed, because FHFA was headed by a single Director who could only be dismissed by the President “for cause” in

violation of the separation of powers.45 The Court agreed that under Siela Law LLC v. CFPB,46 giving the heads of single member agencies for cause protections against dismissal is unconstitutional.47 But it remanded the case to the lower courts “for further proceedings to determine, what remedy, if any, the shareholders are entitled to receive on their constitutional claim.”48 The reason it said there might be no remedy is that each of the successive Directors against whom the shareholders’ claims were directed had been properly appointed, and so were acting in a lawful capacity.49 In the absence of evidence that the President wished to, but felt unable to fire any of the Directors involved, there may have been no harm.50 But as Justice Thomas said in his concurrence, the possibility that “the Director might have acted differently if he knew that he served at the pleasure of the President . . . is not enough for a party to show that an official acted differently because he or another official incorrectly interpreted the Vesting Clause.”51 Justice Kagan, also concurring in the judgment, pointed out that the Court’s announced limit on its “removal jurisprudence” had the salutary effect of “prevent[ing] theories of formal presidential control from stymying the President’s real-world ability to carry out his agenda.”52

Collins v. Yellen thus establishes that the actions of a single Administrator with definitively unlawful protection against dismissal without cause under Seila Law cannot automatically be invalidated after the fact.53 But the harm the Supreme Court identified in its dismissal case stays was harm from an order “allowing a removed officer to continue exercising the executive power.”54 It seems illogical to presume harm to the government from its inability to dismiss an individual member of a multi-member agency when that member’s vote cannot affect the outcome and while that member’s statutory protection against dismissal without cause is—at least for now—still constitutional.

The lower court rulings in the dismissal cases were expected given existing precedent. But the Court’s decision to grant stays in those cases was at least an indicator that it may well overturn or narrow the 1935 decision in Humphrey’s Executor. As the majority wrote in Wilcox, “the Constitution vests the executive power in the President” and “[t]he stay

reflects our judgment that the Government is likely to show that both the NLRB and MSPB exercise considerable executive power.”55

II.

By contrast, the two lead cases against the President’s tariffs (there are other pending cases as well)56 are principally predicated on West Virginia v. EPA—the Supreme Court’s decision announcing the “major questions doctrine.”57 That decision, which is not even four years old, has since been followed by the Supreme Court to strike down the Biden-era student debt relief plan in Biden v. Nebraska58 and has been applied by the lower courts many times since then.59 This makes it highly unlikely that reversal of West Virginia is in the offing.

The cases against the legality of the tariffs not only rest on recent Supreme Court precedent, but they are also compelling. Let’s start with the basic framework of the major questions doctrine set out in West Virginia. It’s holding is pretty simple to state: When, in “extraordinary cases,” the Court states, an administrative agency adopts a rule of great “economic or political significance,” the agency acts within its authority only if it can “point to ‘clear congressional authorization’ for the power it claims.”60 The two leading tariff cases, i.e., the ones that have advanced to the appellate level (there are others as well), fit neatly into this framework. If one accepts the President at his word, he believes the tariffs will raise “billions of dollars, even trillions of dollars” in revenue61 and his Solicitor General Sauer warned the Federal Circuit that unwinding the tariffs “could lead to a 1929-style result,”62 a plain reference to the Great

Depression. That would certainly seem to make the imposition of the tariffs “extraordinary” and of “great economic and political significance.” The first of these cases, filed on April 14, 2025 with the International Trade Court (“ITC”) by several importers (led by V.O.S. Selections), alleged that the President’s unilateral imposition of worldwide tariffs exceeded his authority under the International Emergency Economic Powers Act (“IEEPA”).63 Those plaintiffs were joined a little over a week later when the ITC consolidated their complaint with a similar complaint filed by twelve states.64 They made several arguments, including the contention that the forty-year-old trade deficit with numerous nations that was the predicate for several of the President’s tariff orders was not an emergency: “His claimed emergency,” the V.O.S. plaintiffs maintained, “is a figment of his own imagination: trade deficits, which have persisted for decades without causing economic harm, are not an emergency.65 Nor do these trade deficits constitute an ‘unusual and extraordinary threat.’66 But central to their case was that, even accepting that the courts might give wide berth to the President’s questionable assessment of what constitutes an emergency, nothing in IEEPA remotely gave the President the sweeping power to impose the tariffs.67 This was the essence of their major questions doctrine claim.

A day after the twelve states’ complaint had been consolidated by the ITC, Learning Resources and hand2mind Inc., two importers of children’s toys, filed their own lawsuit in the federal district court for the District of Columbia.68 Their argument was similar to those raised by the complainants in the ITC case—the complainants in both cases argued that IEEPA did not give the President the power to issue his executive orders imposing the tariffs and his contrary claim violated the major questions doctrine.69 But the complainants in the former case maintained that the President’s actions greatly exceeded any limited tariff authority delegated to him by Congress. Learning Resources and hand2mind argued instead that IEPPA—which makes no mention of tariffs and has never previously been invoked to impose them—gave the President no authority to impose

tariffs under IEEPA.70 IEEPA, they stated, was not a tariff statute.71 The ITC, which had “heard exactly zero cases arising out of IEEPA,” was “a specialized court of limited jurisdiction” only over actions that “arise[] out of any law of the United States providing for . . . tariffs” and therefore had no jurisdiction even to consider the case.72

Many, including this author, have criticized the major questions doctrine as overbroad73 and so vague that its applicability is often “in the eyes of the beholder.”74 Justice Kavanaugh himself said as much when he sat on the D.C. Circuit Court, noting that the doctrine “has a bit of a ‘know it when you see it’ quality.”75 That was the view of New York University School of Law’s Institute for Policy Integrity––which has consistently argued for a narrow reading of the doctrine, placing the emphasis on the Supreme Court’s statement that it applies only to “extraordinary cases.”76 Adhering to that view, it argued in an amicus brief that the President’s use of IEEPA meets the major questions doctrine test of being “extraordinary,” i.e., “unheralded, transformative, and economically and politically significant.”77

The Institute for Policy Integrity had lots of company—seventeen other amicus briefs were submitted to the Federal Circuit alone.78 Among them were a brief authored by a bipartisan group of retired government officials;79 another by a number of legal scholars—conservative, left liberal, and libertarian;80 an amicus brief by the libertarian Cato

Institute;81 another amicus brief by the more liberal Brennan Center for Justice;82 and yet another by prominent economists of every philosophical stripe.83 All argued that the tariffs were executive overreach.

Most importantly, the three lower courts—the district court for the District of Columbia, the ITC and the Federal Circuit have reached the same conclusion in unmistakable terms.

the

ITC

during

of . . . property,’”

The three member ITC’s decision in V.O.S. Selections, Inc. v. Trump,84 later affirmed by the Federal Circuit,85 was unanimous.86 recognized, affords a President authority IEEPA, national to “‘regulate . . . importation emergencies.87 And, the court acknowledged, an earlier opinion by the United States Court of Customs and Patent Appeals (a forerunner of the Federal Circuit)––United States v. Yoshida International Inc.88––had agreed that a predecessor statute to IEEPA, the Trading with the Enemy Act or TWEA, gave a President limited authority to impose tariffs.89 But, it noted, a subsequent amendment to TWEA “cabined the President’s powers under TWEA to wartime,”90 while IEEPA was intended to narrow the President’s emergency powers outside of wartime.91 More importantly, the court held, applying the major questions doctrine, IEEPA’s authority to “‘regulate. . . importation’. . . does not authorize anything as unbounded as the Worldwide and Retaliatory Tariffs [the court’s term for the President’s tariffs mandated under Executive Order 14257].”92

The district court in Learning Resources v. Trump93 went a step further. Like the ITC, it found that because the President’s use of IEEPA to impose tariffs posed a major question, and like the ITC, the district court agreed that IEPPA contains no clear Congressional expression of intent to give the President the power to impose the challenged tariffs.94

But it also relied on that analysis to reject the government’s motion to transfer the case to the ITC.95 “The jurisdictional question,” it reasoned, “is tantamount to the principal merits question: whether IEEPA authorizes (or ‘provid[es] for’) tariffs.”96 The ITC, the court ruled, only has jurisdiction over tariff matters, but IEEPA does not even mention tariffs and the government’s claim that the President has tariffing authority cannot thereby give the ITC jurisdiction.97 “The statute,” it concluded, “is categorical: the jurisdictional hook is the nature of the statute that a case arises out of, not the character of a plaintiff’s claims.”98 In short, the same finding of a major question doctrine violation also supported the court’s denial of the motion to transfer.99

In describing the two cases for invalidating the tariffs as compelling, I did not mean to suggest that the government made no counter-argument to the application of the major questions doctrine, only that it seems weak. Its twofold argument before the lower courts was that the tariffs were essential to the President’s conduct of foreign affairs and that his actions were not subject to the major questions doctrine, which applies only in domestic contexts.100

To be sure, the APA exempts agency actions that are part of the government’s “foreign affairs function” from the usual prior notice and comment obligations.101 But the exemption is procedural and would not affect the merits of a major questions doctrine dispute.102 In any event, several courts have said that even this exemption is inapplicable unless requiring prior notice and comment “would provoke definitely

undesirable international consequences.”103 And one Trump district court appointee has warned that an overbroad definition of the foreign affairs function would justify eliminating prior notice and comment on rules related to climate change on the grounds that it might affect other countries, or that rules regulating domestic production of some good might affect trade negotiations with foreign nations.104 It is hard to believe that stripping the President of the unilateral power to impose tariffs––a power expressly and exclusively given to Congress in Article I of the Constitution105 (and that a President, at best, possesses only as a delegation from Congress)––would be considered a provocation to other nations. More likely it will be viewed as removing a provocation for a trade war.106

As to the Administration’s second argument, others have also argued in different contexts that the doctrine only applies to administrative agency actions, not those of the President.107 But it is a position that the Institute for Policy Integrity vigorously contests in its Federal Circuit amicus brief108 and that has been rejected by the Fifth,109 Sixth110 and Ninth Circuits.111 If accepted by other Circuits or the Supreme Court, however, that conclusion would be fatal to those who only sue the President. But in the context of the Learning Resources and V.O.S. cases, the issue of whether private parties can sue the President for violation of IEEPA is likely moot.

The complainants in V.O.S. and Learning Resources sued both the President and several agencies that administer the tariffs.112 Assuming that the major questions doctrine only applies to administrative agencies,

it is true that “the President is not an agency” under the APA.113 But it is also the case that “final actions that agencies take pursuant to the order can be challenged under the Act” and thus subject to the major questions doctrine.114

Although they prevailed in the district court, the complainants in Learning Resources filed an emergency motion with the Supreme Court asking it to take up the government’s appeal (currently pending before the D.C. Circuit) directly.115 Their pitch for emergency relief was straightforward: “The IEEPA tariffs,” they noted, “are causing enormous uncertainty and financial distress for American businesses. [W]ith trade policy living on three-to-six month cycles[,] business planning [is] a nightmare.”116 “Indexes that measure trade policy uncertainty are almost literally off the charts”117 and––given the hundreds of billions in taxes that, by the government’s own estimates, must be borne by importers–– the petitioners noted, many smaller importers will face bankruptcy.118 Put another way, every day the tariffs remain in effect without their legality being resolved by the Court exacerbates the uncertainty problems. “Whether the President has authority to impose tariffs under IEEPA,” the motion pleaded, “is of such imperative importance that it warrants review now.”119

It did not take the Supreme Court long to decide otherwise. The Court rejected the June seventeenth petition only three days after it was filed.120 But it is hard to square the Court’s decision with its statement in Wilcox v. Trump121 that it grants emergency relief “to balance the equities as the litigation moves forward” and to avoid the “disruptive” impact of back and forth rulings in the interim.122 Indeed, one only need to look to the government’s statements to see both the dramatic importance of the case and the adverse impact delay will have on “the equities as the litigation moves forward.”123

Only last April, the President described the day he ordered the reciprocal tariffs “one of the most important days in American history.”124 The “purpose of what I am doing [unilaterally setting tariff rates],” he added in August, “is to pay down the debt.”125 But as the government has acknowledged, if the tariffs are overturned it may owe refunds to the importers who have paid the tariffs.126

By the government’s own account this refund risk is of enormous significance. Indeed, following news accounts of the unfavorable direction the Federal Circuit oral argument in the V.O.S. case seemed to take against the government,127 Solicitor General Sauer filed a highly irregular Rule 28(j) letter with the Court.128 By its terms, Rule 28(j) only permits post oral argument letters if (1) “pertinent and significant authorities come to a party’s attention . . . after oral argument,” (2) the party provides the “supplemental citations,” and (3) specifically refers to “the page of the brief or to a point argued orally” to which these supplemental authorities apply.129 But Solicitor General Sauer’s letter cited no authorities, instead urging the court to stay any unfavorable ruling because of the claimed catastrophic effect of such a ruling on the American economy:

The letter’s hyperbole, its false claim that foreign nations are paying the tariffs and lack of citations to “authorities” aside, the Government made its position clear––by delaying relief that may flow from reversal of the tariffs, it hoped to make the Supreme Court’s decision harder. Only days after Solicitor General Sauer’s letter, Treasury Secretary Bessent said the quiet part out loud: “The amount of money that’s coming in here—I think the more deals we’ve done, the more money coming in, it gets harder and harder for [the Supreme Court] to rule against us.”131

It is not difficult to imagine that the Court will find it harder to rule against the Government. The merits of the arguments won’t change. But the Court is not likely to ignore the impact of its decision as the potential refund obligation increases by millions every day the tariffs remain in effect. For comparison, consider the potential dire consequences to our economy many economists have warned about if the Federal Reserve were to lose its independence from the executive branch.132 This concern

has almost certainly been on the minds of several of the Justices in the last several years.133 How else to explain the sua sponte and dubious distinction they have suggested between the for-cause protections given to members of the Federal Reserve in 1913134 based on their “special historical status”135 and the similar protections given to members of other independent administrative agencies. Would that “historical” distinction apply to the for-cause protections given to FTC Commissioners in 1914136 or to Interstate Commerce Commission members in 1887?137

If the Court rules against the Government in the tariff cases it might order refund relief directly. If it remands the case to the International Trade Court, that court could order refunds as well.138 On the other hand, the Supreme Court may bar imposition of the tariffs prospectively, leaving the complicated refund questions to the government agency administering the tariffs. If it does so, it is clear that “an agency, like a court, can undo what is wrongfully done by virtue of its order.”139 That could also include ordering the government to pay the affected importers interest, as “imposition of interest on refunds is not an inappropriate means of preventing unjust enrichment” resulting from an unlawful order.140

But remanding the issue to Customs and Border Protection might also allow the Court to duck the issue of refunds indefinitely. While agencies have the same equitable power as the courts to provide relief for their mistakes, they also have the inherent power to weigh the equities of retroactive relief.141 That, however, could further complicate and delay relief, as the agencies would have the ability to decide whether, and to what extent, they should order refunds.

The Federal Energy Regulatory Commission (“FERC”), which regulates the rates of electric utilities and natural gas pipelines, has

considerable experience with these types of issues. “FERC enjoys broad authority when its past actions are determined to be wrong,”142 but in weighing the equities, it typically follows its “general policy of ensuring that the parties harmed by our legal error are put in the same position in which they would have been had the Commission not erred.”143 A similar analysis would weigh strongly in favor of refunds of the tariff charges.

While a refund order might well exacerbate the government’s already enormous budget deficit, there do not seem to be strong equities justifying the government’s reliance on revenues derived from tariffs. It has now known for months that the tariffs were at risk of being declared unlawful. Consider the analogous circumstance where an agency has unlawfully denied a seller a rate increase, and the seller seeks to recoup the undercharges from buyers. The existence of “adequate notice that resolution of some specific issue may cause a later adjustment to the rate being collected at the time of service,” the D.C. Circuit has held, is a factor favoring retroactive relief.144

Conversely, refunds of tariff overcharges would only provide compensation for some of the harm they have caused. Refunds are likely to fall far short of compensating everyone who has been harmed by the tariffs. Refunds will not compensate the importers for the business they may have lost in the interim, much less do any good for those companies that may have gone out of business. Foreign competitors, who may have lowered their prices to remain competitive, will also get no relief for lost profits. Nor will consumers to whom the tariff costs may have been passed on by importers in the form of higher retail prices likely benefit from refunds. Customers of the importers’ domestic competitors will also be hurt, as those domestic competitors, shielded from foreign competition, are likely to raise their prices, too. Finally, refund relief to affected importers will be of little solace to the employees of importers who may have been laid off as a result of the tariffs.

These problems could have been avoided—or at least mitigated— had the Court expedited its review when requested last June. But short of that, let us hope that the complications flowing from the Court’s decision not to expedite review of the President’s tariffs do not make the result a fait accompli.

Let us also hope that the Court’s lack of clear standards for emergency relief does not erode confidence in either the Court or the lower court judges who must interpret the shadow docket rulings. There

is ample reason for concern. Georgetown University Law Professor Steven Vladeck noted in a recent blog that from April through late August 2025—and with only one partial exception—the President won every emergency motion he filed.145 Justice Jackson has said this is more than a statistical coincidence: “This is Calvinball jurisprudence with a twist. Calvinball has only one rule: There are no fixed rules. We seem to have two: that one, and this Administration always wins.”146 That the Court granted the Administration’s motion to expedite review of the Federal Circuit decision it lost, and only then granted the Learning Resource motion for expedited review of its case the Court had earlier denied, 147 unfortunately does not help dispel that perception. And in a remarkable series of interviews, ten out of a dozen federal judges who went on the record with NBC News complained that the lack of transparency and guidance in the Court’s shadow docket rulings had left them vulnerable to personal attacks, bomb threats, swattings, and other harassment.148 “They don’t have our backs,” complained one judge.149

The Court has not yet ruled on the tariff cases, and this author remains hopeful that it will reject the Administration’s tariff changes as unlawful for the reasons I have discussed. A favorable decision would ameliorate concerns that the government’s winning record in shadow docket cases amounts to de facto government victories on the merits. But while it would ameliorate those concerns, it will not eliminate them. If the President’s tariffs are found unlawful it will be of little solace to companies put out of business while the cases remained undecided. Nor would merits rulings declaring the President’s termination of research grants to universities unlawful undo the harm of experiments ruined by the suspension of funding.150 Food spoiled or medicines undistributed past their expiration date will do their intended recipients no good should the Court ultimately rule that the de facto shut down of U.S AID was

unlawful.151 Executive actions later found to be unlawful would have already done their damage in the interim.

It was only recently that the Supreme Court ruled in Loper Bright Enterprises v. Raimondo that it would no longer defer even to reasonable agency interpretations of ambiguous statutes.152 In reaching its decision the Court invoked its famous statement from Marbury v. Madison: “It is emphatically the province and duty of the Judicial Department to say what the law is.”153 So, finally, let us also hope that going forward the Court extends that lesson to the administration of its shadow docket— providing more transparency regarding how it determines which cases qualify for emergency relief and which do not.

--- FOOTNOTES ---

Part of the Administrative Law Commons, Constitutional Law Commons, Courts Commons,

International Trade Law Commons, President/Executive Department Commons, and the Supreme Court

of the United States Commons

†Harvey Reiter is Senior Counsel in the Washington D.C. office of Stinson, LLP and an adjunct professor of law at George Washington University Law School where he teaches the course Regulated Industries. Mr. Reiter served as Executive Editor and later Editor-in-Chief of the Energy Law Journal from 2005–2025.

TABLE OF CONTENTS

TABLE OF CONTENTS ................................................................................................. 2 INTRODUCTION........................................................................................................... 2 I. THE PRESIDENT’S CONSTITUTIONAL CHALLENGES TO THE “FOR CAUSE” PROTECTIONS AGAINST DISMISSAL OF MEMBERS OF “INDEPENDENT” AGENCIES ........................................................................................................... 3 II. CHALLENGES TO THE PRESIDENT’S UNILATERAL IMPOSITION OF TARIFFS ........ 9 CONCLUSION ............................................................................................................ 19

INTRODUCTION

1 Nina Totenberg, The Supreme Court and ‘The Shadow Docket,’ NPR (May 22, 2023, at ET), https://www.npr.org/2023/05/22/1177228505/supreme-court-shadow-docket

05:00 [https://perma.cc/9MEV-KEJT].

2 Trump v. Wilcox, 605 U.S. __, 145 S. Ct. 1415, 1415 (2025) (quoting Trump v. Int’l Refugee Assistance Project, 582 U.S. 571, 580 (2017 . To be sure, the Supreme Court has stated that it ostensibly applies the “likelihood of success” and “irreparable harm” tests to applications for emergency relief. See e.g., Hollingsworth v. Perry, 558 U.S. 183, 190 (2010) (per curiam); Nken v. Holder, 556 U.S. 418, 426 (2009). But as Justice Kavanaugh has acknowledged, in the emergency docket he treats “likelihood of success as equivalent to a fair prospect of success.” Labrador v. Poe, 601 U.S. 1110, 1122–23 n.2 (2024) (Kavanaugh, J., concurring). To this author’s mind, “fair prospect” is not as high a bar as “likely,” which Merriam-Webster defines as “having a high probability of occurring or being true.” Likely, MERRIAM-WEBSTER, https://www.merriamwebster.com/dictionary/likely [https://perma.cc/2BNN-UJL5]. More importantly, as discussed in this Article, the opaque nature of the shadow docket and the seemingly inconsistent outcomes discussed herein suggest that the emergency docket test is quite malleable.

3 State of U.S. Tariffs: August 1, 2025, THE BUDGET LAB

(Aug. 1, 2025), https://budgetlab.yale.edu/research/state-us-tariffs-august-1-2025 [https://perma.cc/B7GY-C29S]. 4 Rob Wile, New Tariffs Snap into Effect, Raising Import Taxes to Highest Level Since Great Depression, NBC NEWS (Aug. 7, 2025, at 8:18 ET), https://www.nbcnews.com/business/business-

THE PRESIDENT’S CONSTITUTIONAL CHALLENGES TO THE “FOR CAUSE” PROTECTIONS AGAINST DISMISSAL OF MEMBERS OF “INDEPENDENT” AGENCIES

news/trump-tariffs-latest-round-takes-effect-thursday-august-7-2025-rcna223461 [https://perma.cc/4ZYV-5HVN].

5 See, e.g., Trump v. Slaughter, No. 25A264, 2025 WL 2692050 (S. Ct. Sep. 22, 2025) (granting stay of lower court reinstatement of FTC Commissioner ); Trump v. Wilcox, 605 U.S. __, 145 S. Ct. at 1415 (granting emergency stay of lower court reinstatements of NLRB and MSPB Members).

6 Learning Res., Inc. v. Trump, 606 U.S. __, 145 S. Ct. 2811, 2811 (2025) (denying petition

for certiorari).

7 Trump v. Boyle, 606 U.S. __, 145 S. Ct. 2653, 2654 (2025). 8 Trump v. Wilcox, 605 U.S. __, 145 S. Ct. at 1415. 9 Learning Res., Inc. v. Trump, 606 U.S. __, 145 S. Ct. at 2811.

10 Trump v. V.O.S. Selections, No. 25-250, 2025 WL 2601020, at *1 (U.S. Sep. 9, 2025). 11 See infra pp. 13–19. 12 Emily Peck, Trump Fires Acting Labor Board Chair in Legally Dubious Move, AXIOS (Jan. [https://perma.cc/

28, 2025), https://www.axios.com/2025/01/28/trump-nlrb-gwynne-wilcox NEG2-ZLXE].

13 Alexandra Olson & Claire Savage, Trump Fires Two Democratic Commissioners of Agency That Enforces Civil Rights Laws in the Workplace, AP NEWS (Jan. 29, 2025, at 12:22 ET),

https://apnews.com/article/trump-eeoc-commissioners-firings-crackdown-civil-rightsc48b973cb32bad97e9da9e354ba627db [https://perma.cc/FW3G-WGDD].

14 Katherine Hapgood, Federal Judge Reinstates NCUA Board Members Fired by Trump, POLITICOPRO (July 22, 2025, at 18:53 ET) https://subscriber.politicopro.com/article/2025/07/ federal-judge-reinstates-ncua-board-members-fired-by-trump-00468846 [https://perma.cc/287MWGZX].

15 Amy Howe, Supreme Court Sides with Trump Administration in Battle Over Ability to Remove Agency Commissioners, SCOTUS BLOG (July 23, 2025), https://www.scotusblog.com/ 2025/07/supreme-court-sides-with-trump-administration-in-battle-over-cpsc-commissioners/ #:~:text=EMERGENCY%20DOCKET-,Supreme%20Court%20sides%20with%20Trump%20 administration%20in%20battle%20over%20ability,of%20agency%20bipartisa [https://perma.cc/ PDP3-KX3K].

16 Alfred Ng, 2 FTC Commissioners Are Turning Their Firings into a Resistance Tour, POLITICO (June 23, 2025, at 10:00 ET), https://www.politico.com/news/2025/07/23/trump-firedftc-commissioners-bedoya-slaughter-00467437 [https://perma.cc/P3KR-N9PM].

17 Grundmann v. Trump, 770 F. Supp. 3d 166, 170 (D.D.C. 2025). 18 Alex Lemonides, Seamus Hughes, Mattathias Schwartz, Lazaro Gamio & Camille Baker, Tracking the Lawsuits Against Trump’s Agenda, N.Y. TIMES (Jan. 20, 2026, at 14:00 ET), https://www.nytimes.com/interactive/2025/us/trump-administrationlawsuits.html?unlocked_article_code=1.dE8.p5TI.VQWOTtb8g4z [https://perma.cc/DR26-T9G4] 19 See, e.g., Trump v. Slaughter, No. 25A264, 2025 WL 2692050 (S. Ct. Sep. 22, 2025) (granting stay of lower court reinstatement of FTC Commissioner); Trump, v. Wilcox, 605 U.S. __, 145 S. Ct. 1415, 1415 (2025) (granting emergency stay of lower court reinstatements of NLRB and MSPB Members).

20 See, e.g., Andrea Hsu, Appeals Court Hands Trump a Victory, OK’ing Firings of Two Independent Agency Heads, NPR (Dec. 5, 2025, at 13:05 ET , https://www.npr.org/2025/12/05/ nx-s1-5634705/trump-nlrb-mspb-firing-appeal that President “did not cite any permissible reason” for firing members of National Labor Relations Board or Merit System Protection Board).

[https://perma.cc/6GYM-DXZJ]

(noting

21 Trump v. Wilcox, 605 U.S. __, 145 S. Ct. 1415, 1418 (2025) (Kagan, J., dissenting).

The President has no legal right to relief. Congress, by statute, has protected members of the NLRB and MSPB (like Wilcox and Harris) from Presidential removal except for good cause. . . . And, again, Humphrey’s instructs that Congress can do so without offending the Constitution. Just like the agency at issue there (the FTC), the NLRB and MSPB are multi-member bodies of experts, balanced along partisan lines, with “quasi-legislative or quasi-judicial” (not “purely executive”) functions. So both fit securely within the ambit of Humphrey’s—as no one in the history of either agency has ever doubted. That means to fire their members, the President—under existing law—needs good cause, which he admits he does not have. The only way out of that box is to upend Humphrey’s.24

22 Humphrey’s Ex’r v. U.S., 295 U.S. 602, 629–31 (1935). 23 Trump v. Wilcox, 605 U.S. __, 145 S. Ct. at 1418 (Kagan, J., dissenting). 24 Id. 25 Id. at 1419 (Kagan, J., dissenting) (quoting Rodriguez de Quijas v. Shearson/American Express, Inc., 490 U.S. 477, 484 (1989 ; Harris v. Bessent, No. 25-5037 2025 WL 1021435, at *1 (D.C. Cir. Apr. 7, 2025).

26 Trump v. Wilcox, 605 U.S. __, 145 S. Ct. at 1415. 27 See, e.g., Slaughter v. Trump, 791 F. Supp. 3d 1 (D.D.C. 2025); Wilcox v. Trump, 775 F.

Supp. 3d 215 (D.D.C. 2025); Harris v. Bessent, 775 F. Supp. 3d 164 (D.D.C. 2025).

28 Trump v. Boyle, 606 U.S. __, 145 S. Ct. 2653, 2654 (2025) (“Although our interim orders are not conclusive as to the merits, they inform how a court should exercise its equitable discretion in like cases.”).

29 Grundmann v. Trump, 786 F. Supp. 3d 188, 191–92 (D.D.C. 2025) (rejecting argument that

Federal Labor Relations Authority wielded executive authority that would have justified a stay).

30 Slaughter v. Trump, No. 25-909, 2025 WL 2145665, at *3 (D.D.C. July 24, 2025), aff’d,

Slaughter v. Trump, No. 25-5261, 2025 WL 2551247, at *8 (D.C. Cir. Sep. 2, 2025).

31 Trump v. Boyle, 145 S. Ct. at 2654 (quoting Trump v. Wilcox, 605 U.S. __, 145 S. Ct. 1415,

1419–20 (2025 .

32 Olson & Savage, supra note 13; Firing NLRB Board Member Gwynne Wilcox, ECON. POL’Y INST. (May 23, 2025), https://www.epi.org/policywatch/firing-nlrb-board-member-gwynnewilcox/#:~:text=President%20Trump%20has%20illegally%20removed,made%20the%20Board% 20non%2Doperational [https://perma.cc/UW4D-8YZN]; FEDweek Staff, Supreme Court Action Leaves MSPB Without a Quorum Again, FEDWEEK (Apr. 15, 2025), https://www.fedweek.com/ fedweek/supreme-court-action-leaves-mspb-without-a-quorum-again [https://perma.cc/TW572RBT]; Jaclyn Diaz, Trump Fires All 3 Democrats on the Consumer Product Safety Commission, NPR (May 9, 2025, at 17:44 ET), https://www.npr.org/2025/05/09/nx-s1-5393374/trumpconsumer-product-safety-commission-cpsc-firing [https://perma.cc/WL3Q-PV5L].

33 5 U.S.C. § 704; Heckler v. Chaney, 470 U.S. 821, 826 (1985). 34 Reorganization Plan No. 8 of 1950, 15 Fed. Reg. 3175 (May 25, 1950). 35 15 U.S.C. § 41. 36 47 U.S.C. § 154(a). 37 29 U.S.C. § 153(a).

38 Samuel Rubinstein, Chairpointment: Rethinking the Appointment of Independent Agency Chairpersons, HARV. L. SCH. J. ON LEGIS. (Feb. 25, 2020), https://journals.law.harvard.edu/jol/ 2020/02/25/chairpointment-rethinking-the-appointment-of-independent-agency-chairpersons [https://perma.cc/43FT-Q3PT].

39 Space Expl. Techs. Corp. v. NLRB, 151 F.4th 761, 779 (5th Cir. 2025) (referencing

government’s reliance on Collins v. Yellen) [hereinafter SpaceX].

40 Tim Ryan, 5th Circ. Tight-Lipped at NLRB Constitutionality Arguments, LAW360 (Feb. 5, 2025, at 22:10 ET), https://www.law360.com/employment-authority/articles/2293792/5th-circtight-lipped-at-nlrb-constitutionality-arguments [https://perma.cc/Z9TC-6M8Z]; SpaceX, 151 F.4th at 779.

41 Collins v. Yellen, 594 U.S. 220 (2020). 42 Ryan, supra note 40. 43 SpaceX, 151 F.4th at 780. 44 See John V. Duca, Subprime Mortgage Crisis 2007–2010, FED. RSRV. HIST., https://www.federalreservehistory.org/essays/subprime-mortgage-crisis [https://perma.cc/3U9MKU43].

45 Collins v. Yellen, 594 U.S. at 227–28. 46 591 U.S. 197, 251 (2020). 47 Collins v. Yellen, 594 U.S. at 257. 48 Id. at 228 (emphasis added). 49 Id. at 257–58. 50 Id. at 259–60. 51 Id. at 269 (Thomas J., concurring). 52 Id. at 274–75 (emphasis added). 53 See id. at 257–58. 54 Trump v. Wilcox, 605 U.S. __, 145 S. Ct. 1415, 1415 (2025).

CHALLENGES TO THE PRESIDENT’S UNILATERAL IMPOSITION OF TARIFFS

55 Id. 56 Antone Gonsalves, 5 Court Cases That Could Derail Trump’s Tariffs, UTIL. DIVE (Aug. 4, https://www.utilitydive.com/news/five-court-cases-derail-trump-tariffs/756565

2025), [https://perma.cc/8K7B-9NL8]. 57 597 U.S. 697, 699 (2022). 58 Biden v. Nebraska, 600 U.S. 477, 506 (2023). 59 Harvey L. Reiter, The FCC’s Terrible, Horrible, No Good, Very Bad Day, 77 FED. COMMC’N

L. J. 29, 34 (2024).

60 West Virginia v. EPA, 597 U.S. at 723. 61 Learning Res., Inc. v. Trump, 784 F. Supp. 3d. 209, 218 (D.D.C. 2025). 62 Citation of Supplemental Authority pursuant to Fed. R. App. P. 28(j) for Appellants Executive Office of the President, Jamieson Greer, Howard Lutnick, Kristi Noem, Office of the United States Trade Representative, Rodney S. Scott, Donald J. Trump, United States Customs and Border Protection, United States Department of Homeland Security and US., V.O.S. Selections v. Trump, No. 25-1812, (Fed. Cir. 2025), Dkt. No. 154 [hereinafter Sauer Rule 28(j) letter]. This was a claim Solicitor Sauer repeated in the government’s opening merits brief to the Supreme Court in the same case. Opening Brief for the Respondents In No. 24-1287 and the Petitioners In No. 25250 at 2, Learning Res., Inc. v. Trump, 606 U.S. __, 146 S. Ct. 73 (2025) (referring to “the trillions of dollars being paid by countries that have so badly abused us”). It was also a claim that the Solicitor tried to walk back at oral argument before the Court, where he inconsistently maintained

that the tariff revenues were only an “incidental” effect of the tariffs. Dan Mangan, Supreme Court Justices Appear Skeptical That Trump Tariffs Are Legal, CNBC (Nov. 5, 2025, at 17:11 ET), https://www.cnbc.com/2025/11/05/supreme-court-trump-tradetarrifsvos.html#:~:text=Sauer%2C%20who%20is%20defending%20the,the%20president%2C%2 2%20Gorsuch%20said [https://perma.cc/78S2-4W74].

63 V.O.S. Selections, Inc., v. Trump, 772 F. Supp. 3d 1350, 1364 (Int’l Trade Ct. 2025). 64 Id. 65 Complaint at 2, V.O.S. Selections, Inc., v. Trump (Int’l Trade Ct. Apr. 14, 2025) (No. 25-

00066).

66 Id. 67 Id. at 18. 68 Complaint, Learning Res., Inc. v. Trump (D.D.C. Apr. 22, 2025) (No. 25-cv-01248). 69 Id. ¶ 6 (citing West Virginia v. EPA, 597 U.S. 697, 716 (2022 .

70 Id. ¶ 6. 71 Learning Res., Inc. v. Trump, 784 F. Supp 3d 209, 220 (D.D.C 2025) (asserting that “IEEPA

is not a law providing for tariffs”).

72 Plaintiffs’ Response to Motion to Transfer at 6, Learning Res., Inc. v. Trump (D.D.C. May

7, 2025) (No. 25-cv-01248) (citing 28 U.S.C. § 1581(i)(1 .

73 See generally Harvey L. Reiter, Would FERC’s Landmark Decisions Have Survived Review Under the Supreme Court’s Expanding “Major Questions Doctrine” and Could the Doctrine Stifle New Regulatory Initiatives?, 3 ENERGY BRIEF 1 (2022) (discussing the dangers of the major questions doctrine).

74 Dan Farber, Another Worrisome Signal from the Supreme Court, LEGALPLANET (Aug. 30, https://legal-planet.org/2021/08/30/another-worrisome-signal-from-the-supreme-court

2021), [https://perma.cc/2MYE-RBRT].

75 U.S. Telcom Ass’n v. FCC, 855 F.3d 381, 423 (D.C. Cir. 2017) (Kavanaugh, J., dissenting

from denial of rehearing en banc).

76 Donald L.R. Goodson, The Impact of West Virginia v. EPA on Challenges to FERC’s

Authority Under the Major Questions Doctrine, 4 ENERGY BRIEF 1, 10 (2023).

77 Brief of the Institute for Policy Integrity at New York University School of Law as Amicus Curiae in Support of Plaintiffs-Appellees at 4, V.O.S. Selections, Inc., v. Trump (July 8, 2025) (No. 25-1812) [hereinafter Policy Integrity Amicus Brief].

78 Ilya Somin, Overview of the Amicus Briefs Filed in Our Tariff Case, REASON (July 9, 2025, at 20:22 EST), https://reason.com/volokh/2025/07/09/overview-of-the-amicus-briefs-filed-in-ourtariff-case/#:~:text=The%20brief%20represents%20the%20consensus,Famer%20of%20the% 20same%20name [https://perma.cc/W4GR-6XYU].

79 Brief of Amici Curiae George F. Allen in Support of Plaintiffs-Appellees and Affirmance,

V.O.S. Selections, Inc., v. Trump (July 8, 2025) (No. 25-1812).

80 Somin, supra note 78.

81 Brief of Cato Institute as Amicus Curiae in Support of Plaintiffs-Appellees and Affirmance,

V.O.S. Selections, Inc. v. Trump (July 8, 2025) (No. 25-1812).

82 Brief of the Brennan Center for Justice as Amicus Curiae in Support of Plaintiffs-Appellees,

V.O.S. Selections, Inc. v. Trump (July 8, 2025) (No. 25-1812).

83 Brief Amici Curiae of Economists in Support of Affirmance, V.O.S. Selections, Inc. v.

Trump (July 8, 2025) (No. 25-1812).

84 772 F. Supp. 3d 1350 (Ct. Int'l Trade 2025). 85 V.O.S. Selections, Inc. v. Trump, 149 F.4th 1312, 1318 (Fed. Cir. 2025). 86 V.O.S. Selections, 772 F. Supp. 3d at 1357. 87 Id. at 1360 (quoting 50 U.S.C. § 4305(b)(1)(B . 88 526 F.2d 560 (C.C.P.A. 1975). 89 V.O.S. Selections, 772 F. Supp. 3d at 1360. 90 Id. 91 Id. at 1361. 92 Id. at 1370 (quoting 50 U.S.C. § 4305(b)(1)(B . 93 784 F. Supp. 3d 209 (D.C. Cir. 2025). 94 Learning Res., Inc. v. Trump, 784 F. Supp. 3d 209, 224 (D.C. Cir. 2025).

95 Id. at 229–30. 96 Id. at 222. 97 Id. at 223. 98 Id. at 222. 99 In a subsequent 7–4 decision, the Federal Circuit upheld the ITC’s holding that the tariffs were illegal, but four of the seven judges in the majority took the same position as the district court in Learning Resources, writing separately to state their “view that IEEPA does not authorize the President to impose any tariffs.” V.O.S. Selections Inc., v. Trump, 149 F.4th 1312, 1340 (Fed. Cir. 2025) (Cunningham, Lourie, Reyna & Stark, J.J., concurring) (emphasis added). 100 Oral Argument at 00:00:45, 00:37:59, 01:30:50–01:32:47, V.O.S. Selections, Inc. v. Trump, 149 F.4th 1312 (Fed. Cir. 2025). The four dissenters in that case endorsed a foreign policy exception to the major questions doctrine. Id. at 1347–48 (Taranto, C.J., Moore, J., Prost, J. & Chen, J., dissenting). 101 5 U.S.C. § 553(a)(1). 102 5 U.S.C. § 706(2)(A). See also Make the Rd. New York v. McAleenan, 405 F. Supp. 3d 1, 45–46 (D.D.C. 2019)

In addition to requiring notice and comment rulemaking where applicable, the Supreme Court has

also made quite clear that, under the APA, an administrative agency cannot promulgate rules in an

arbitrary or capricious fashion. . . . The APA itself requires that a court hold unlawful and set aside

agency action, findings, and conclusions found to be, among other things, ‘arbitrary, capricious, an

abuse of discretion, or otherwise not in accordance with law (quoting 5 U.S.C. § 706(2)(A .

103 American Ass’n of Exps. & Imps. v. U.S., 751 F.2d 1239, 1249 (Fed. Cir. 1985) (quoting H.R. Rep. No. 1980, 69th Cong., 2d Sess. 23 (1946 . 104 E.B. v. U.S. Dep’t of State, 583 F. Supp. 3d 58, 67 (D.D.C. 2022); Kelly, Timothy James, FED. JUD. CTR., https://www.fjc.gov/history/judges/kelly-timothyjames#:~:text=Federal%20Judicial%20Service%3A&text=Nominated%20by%20Donald%20J.,c ommission%20on%20September%208%2C%202017 [https://perma.cc/3R8F-GA24]. 105 U.S. CONST. ART. 1, § 8, cl 1. 106 See, e.g., Trump’s New Tariffs Spark Global Trade War Fears, DIM PUBL’N NEWS (Aug. 4, 2025), https://www.datainsightsmarket.com/news/article/trumps-new-tariffs-spark-global-tradewar-fears-68558 [https://perma.cc/63H9-5QAL] (noting that the President’s “sweeping” tariffs have raised concerns about “a renewed global trade war”). 107 See Samuel Buckberry Joyce, Testing the Major Questions Doctrine, 43 STAN. ENV’T. L.J. 50, 67–73 (2024). 108 Policy Integrity Amicus Brief, supra note 77, at 32–33. 109 Louisiana v. Biden, 55 F.4th 1017, 1031 n. 40 (5th Cir. 2022) (“[D]elegations to the President and delegations to an agency should be treated the same under the major questions doctrine.”). 110 Kentucky v. Biden, 23 F.4th 585, 606–08 (6th Cir. 2022). 111 State v. Su, 121 F.4th 1, 17 (9th Cir. 2024) (Nelson, J., concurring) (“The Supreme Court has never suggested that the President is exempt from major questions analysis. And it makes little sense to think that he is.”). But see Mayes v. Biden, 67 F.4th 921, 934 (“We find that the Doctrine does not apply to Presidential actions.”), vacated as moot, 89 F.4th 1186 (9th Cir. 2023). 112 V.O.S. Selections, Inc. v. Trump, 772 F. Supp. 3d 1350, 1364 (Ct. Int'l Trade 2025); Learning Res., Inc. v. Trump, 784 F. Supp. 3d 209, 215 (D.C. Cir. 2025).

113 Franklin v. Massachusetts, 505 US 788, 796 (1992). 114 Stephen M. Johnson, Deregulation: Too Big for One Branch, But Maybe Not for Two, 53 SETON HALL L. REV. 839, 853 n. 64. (emphasis added); see also AIDS Vaccine Advoc. Coal. v. U.S. Dep’t of State, 766 F. Supp. 3d 74, 83 (D.D.C.), enforced, 768 F. Supp. 3d 1 (D.D.C. 2025) (holding when an agency exercises judgment or discretion, it is still subject to APA oversight, otherwise it “would allow the President and agencies to simply reframe agency action as orders or directives originating from the President to avoid APA review”). 115 Petition for Writ of Certiorari Before Judgment, Learning Res., Inc. v. Trump, __ U.S. __ (2025) (No. 24-1287). 116 Id. at 12. 117 Id. 118 Id. at 10–12. 119 Id. at 26. 120 Learning Res., Inc. v. Trump, 606 U.S. __, 145 S. Ct. 2811 (2025). 121 605 U.S. __, 145 S. Ct. 1415 (2025). 122 Id. at 1415. 123 Id.

Dear Mr. Perlow:

On July 27, after stating his intention to impose IEEPA tariffs, President Trump announced the largest trade agreement in history with the 27-nation European Union, America’s most significant trading partner. . . . President Trump entered historic agreements with Indonesia, the Philippines, and Japan on July 22; and with the United Kingdom on May 8.

These agreements support our request for a stay if the Court affirms. Opening Br.5, 54-60; Reply Br.27-30. Suddenly revoking the President’s tariff authority under IEEPA would have catastrophic consequences for our national security, foreign policy, and economy. The President believes that our country would not be able to pay back the trillions of dollars that other countries have already committed to

124 Aimee Picchi, Trump Reveals These 2 New Types of Tariffs on What He Calls “Liberation Day,” April 2, CBS NEWS (Apr. 2, 2025, at 20:11 ET), https://www.cbsnews.com/news/liberationday-trump-tariffs-explained [https://perma.cc/QD8F-LNBA]. 125 Elisabeth Buchwald, Trump’s Tariffs Are Bringing in Tens of Billions of Dollars a Month. What’s the Government Doing with All That Money?, CNN (Aug. 8, 2025), https://www.cnn.com/ 2025/08/06/economy/government-tariff-revenue [https://perma.cc/A955-U8KS]. 126 Reply Brief for Appellants at 33, V.O.S. Selections, Inc., v. Trump (Fed. Cir. 2025) (No. 2025-1812). 127 Jan Wolfe, Dietrich Knauth, & Luc Cohen, US Appeals Court Scrutinizes Trump’s Use of Tariffs as Trade Deadline Looms, REUTERS (July 31, 2025, at 13:13 ET), https://www.reuters.com/ legal/government/us-appeals-court-scrutinizes-trumps-use-tariffs-trade-deadline-looms-2025-0731. 128 Sauer Rule 28(j) letter, supra note 62. 129 FED. R. APP. P. 28(j).

pay, which could lead to financial ruin. Other tariff authorities that the President could potentially use are short-term, not nearly as powerful, and would render America captive to the abuses that it has endured from far more aggressive countries.

There is no substitute for the tariffs and deals that President Trump has made. One year ago, the United States was a dead country, and now, because of the trillions of dollars being paid by countries that have so badly abused us, America is a strong, financially viable, and respected country again. If the United States were forced to pay back the trillions of dollars committed to us, America could go from strength to failure the moment such an incorrect decision took effect.

These deals for trillions of dollars have been reached, and other countries have committed to pay massive sums of money. If the United States were forced to unwind these historic agreements, the President believes that a forced dissolution of the agreements could lead to a 1929-style result. In such a scenario, people would be forced from their homes, millions of jobs would be eliminated, hard-working Americans would lose their savings, and even Social Security and Medicare could be threatened. In short, the economic consequences would be ruinous, instead of unprecedented success.130

130 Sauer Rule 28(j) letter, supra note 62. While the Federal Circuit did not address the Solicitor General’s stay request, it did remand the case back to the ITC to address the scope of the remedies it should order. V.O.S. Selections, Inc. v. Trump, 149 F.4th 1312, 1340 (Fed. Cir. 2025). 131 Jason Willick, Scott Bessent’s Revealing Admission About Trump’s Tariffs, WASH. POST (Aug. 14, 2025), https://www.washingtonpost.com/opinions/2025/08/14/scott-bessent-trumptariffs-defense. 132 Christopher Rugaber, How the Fed Losing Its Independence Could Affect Americans’ Everyday Lives, AP NEWS (Aug. 31, 2025, at 11:44 ET), https://apnews.com/article/federalreserve-trump-powell-cook-interest-rates-65f53b88f35f6fd4c670ce43efd6d852 [https://perma.cc/ 8H24-7GC4]; Ben S. Bernanke & Janet L. Yellen, The Fed Must Be Independent, N.Y. TIMES (July

2025),

https://www.nytimes.com/2025/07/21/opinion/federal-reserve-independence-

21, trump.html. 133 See, e.g., Brett M. Kavanaugh, Separation of Powers During the Forty-Fourth Presidency and Beyond, 93 MINN. L. REV. 1454, 1474 (2009) (“[I]n some situations it may be worthwhile to insulate particular agencies from direct presidential oversight or control—the Federal Reserve Board may be one example, due to its power to directly affect the short-term functioning of the U.S. economy by setting interest rates and adjusting the money supply.”). 134 Federal Reserve Act, 12 U.S.C. §§ 241–242 (1913). 135 Seila L. LLC v. Consumer Fin. Prot. Bureau, 591 U.S. 197, 222 at n. 8 (2020). See also Consumer Fin. Prot. Bureau v. Cmty. Fin. Servs. Ass’n, 601 U.S. 416, 467 n.16 (2024) (Alito, J., dissenting) (“For Appropriations Clause purposes, the funding of the Federal Reserve Board should be regarded as a special arrangement sanctioned by history.”). 136 Federal Trade Commission Act, 15 U.S.C. § 41 (1914). 137 Interstate Commerce Act, 24 Stat. 383, 387 (1887). 138 See e.g., U.S. Shoe Corp. v. United States, 114 F.3d 1564, 1566 (Fed. Cir. 1997). 139 United Gas Improvement Co. v. Callery Props., Inc., 382 U.S. 223, 229 (1965). 140 Id. at 230; see also Skelly Oil Co. v. Fed. Power Comm’n, 401 F.2d 726, 729 (10th Cir. 1968). 141 Xcel Energy Servs. Inc. v. FERC, 815 F.3d 947, 953 (D.C. Cir. 2016).

CONCLUSION

142 TNA Merch. Projects, Inc. v. FERC, 857 F.3d 354, 359 (D.C. Cir. 2017). 143 Southwest Power Pool, Inc., 156 FERC ¶ 61,057, at P 11 (2016). 144 Nat. Gas Clearinghouse v. FERC, 965 F.2d 1066, 1075 (D.C. Cir. 1992).

145 Steve Vladeck, 174. Justice Gorsuch’s Attack on Lower Courts, ONE FIRST (Aug. 25, 2025), [https://perma.cc/XBE6https://www.stevevladeck.com/p/174-justice-gorsuchs-attack-on-lower JFAB]. 146 Nat’l Insts. of Health v. Am. Pub. Health Ass., 605 U.S. __, 145 S. Ct. 2658, 2675 (2025) (Jackson, J., concurring in part and dissenting in part). 147 Trump v. V.O.S. Selections, Inc., No. 25-250, __ S. Ct. __, 2025 WL 2601020, at *1 (Sep. 9, 2025); Learning Res., Inc. v. Trump, 606 U.S. __, 145 S. Ct. 2811 (2025). 148 Lawrence Hurley, In Rare Interviews, Federal Judges Criticize Supreme Court’s Handling of Trump Cases, NBC NEWS (Sep. 4, 2025, at 05:00 ET), https://www-nbcnewscom.cdn.ampproject.org/c/s/www.nbcnews.com/news/amp/rcna221775 [https://perma.cc/8KRJX9EC]. 149 Id. 150 Leah Willingham & Michael Casey, Funding Freeze Could Set Research Back Years, Harvard Scientists Say, PBS NEWS (Aug. 7, 2025, at 12:36 ET), https://www.pbs.org/newshour/ science/funding-freeze-could-set-research-back-years-harvard-scientists-say [https://perma.cc/ QG7V-56GP].

151 Jessica Donati, Emma Farge, Ammu Kannampilly & Jonathan Landay, Exclusive: US Aid Cuts Leave Food for Millions Mouldering in Storage, REUTERS (May 16, 2025, at 12:01 ET), https://www.reuters.com/world/us-aid-cuts-leave-food-millions-mouldering-storage-2025-05-16. 152 603 U.S. 369, 400 (2024). 153 Id. at 385 (quoting Marbury v. Madison, 1 Cranch 137, 177, 2 L.Ed. 60 (1803 .