
On this emergency episode of the Trade Guys, Bill and Scott break down the Supreme Court’s 6-3 decision striking down President Trump’s use of the International Emergency Economic Powers Act (IEEPA) for broad tariffs and discuss the implications of the decision for global trade.
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A
I'm Scott.
B
I'm Bill and we're the Trade Guys.
C
You're listening to the Trade Guys, a podcast produced by CSIS where we talk about trade in terms that everyone can understand. I'm Alex Kisling and I'm here with Scott Miller and Bill Reinsch, the CSIS Trade Guys. On today's emergency episode of the Trade Guys, Bill and Scott, break down the Supreme Court's decision to strike down the Trump administration's use of emergency powers to impose tariffs. Join us on this special episode to unpack the decision and its global implications. All right, everybody. As promised, we're here with an emergency episode of Trade Guys where just hours ago the supreme court, in a 6 to 3 decision, struck down President Trump's use of emergency powers to impose tariffs. Bill and Scott, let's get right into it. There are a lot of questions. But before we get into all of those, Bill, what was this SCOTUS decision and what was the reasoning behind it today?
B
Well, most of the discussion and the opinions were taken up by the reasoning. While six of the justices agreed on the answer, which was quite clear, they didn't agree on how they got there. And in the end, there were seven separate opinions setting and concurring filed by different justices. Only Justice Alito and Justice Sotomayor didn't add their own opinion. And the big argument was over the reasoning. The decision was basically that ipa, the International Emergency Economic Powers act, does not permit tariffs. And it was a clear decision, we had discussed on a previous episode that maybe they would decide it would permit some tariffs, but not these. And they didn't do that. The Court made a distinction which, frankly hadn't occurred to me, but it was interesting because between regulation and taxation. And the Court determined that taxation is different from regulation and that taxation is exclusively the power of the Congress, and that IPA and the Congress did not delegate that power in ipa, that there were other statutes, and they referred specifically to 232 where that power was delegated with constraints and limitations, but that it was not their judgment contained in aipa, and therefore the AIP attack terrorists were illegal. The dispute over reasoning arose over the question of what's called the major, the major questions doctrine, which is something that Supreme Court created a few years ago, either based on the Constitution or out of whole cloth, depending upon who you are. The ones that like it argue basically that, you know, if there's a major question and if Congress is going to give the president authority to deal with that question, they have to provide some guidance, some guidelines, or some guide rails and limitations on what he can do, and that if they don't do that, the President, then they failed. And the. But the President can't just do whatever he wants. Justice Roberts and the concurring conservative Justices Barrett and Gorsuch relied on that argument. And in an ironic twist, Justice Roberts, who wrote the main opinion, pointed out that Trump's frequent statements about what a big deal the tariffs are and how much money they're taking in, and Roberts cited several quotes about how much money they're taking in was proof of the fact that this is indeed a major question, which was a clever way of saying that Trump kind of dug his own hole here because by constantly claiming it was a big deal, he forced the judges that believe in the major questions doctrine to take it on that basis and say, okay, it's a major question and it doesn't pass the test. The liberal justices, for reasons I don't fully understand, had never been big fans of the major questions doctrine. They came to the same conclusion about aipa, but they said they did it based on the traditional analysis of the AA text, which they said does not contain tariffs, and tariffs were not intended and therefore right, they're out. So clear decision, difference of opinion on why the decision was reached, some monumental additional opinions. Justice Gorsuch issued a 46 page concurring opinion. I haven't counted the pages that may be longer than the. The basic opinion to begin with. A lot of it was based on the. The major questions doctrine, as we'll get to later. Also, no discussion of all about what happens next. They did not say the decision was perspective, which means the tariffs having been ruled illegal, I would argue are now subject to refund. But they did not address anything about that. The only justice who got into that at all was Justice Kavanaugh, who dissented and at one point quoted a statement from the oral argument that said, yes, and if we do this, refunds will be a big mess. That was the quote. And I don't think he was entirely right about that. But he then went on to say, interestingly, in a way that it doesn't matter because it's not their job to figure out whether it's a big mess or not. It's their job to determine what the law requires. Right, right, right.
C
All right, Scott, let's get your initial reactions here.
A
Yeah, no, I agree with Bill. Look, this is not a matter of the constitutionality of tariffs or of IIPA for that matter. It is a statutory interpretation decision. So they basically said the President got the interpretation of the statute wrong, which for me is a less grave concern than a constitutional issue. Second, there is not much about remedies and it will be messy. But also, as Justice Kavanaugh also pointed out in his dissent, the President has other statutes to rely on in this circumstance. So I think that while the IIPA declarations were convenient and easy for the President to move fast on, I think we're probably better off with this interpretation and, and mostly because the other statutes, when it comes to tariffs tend to have a very specific role for the Congress. I think probably that's the best news out of all this is that we, I don't know if we're at the beginning of the end, but at least we're at the end of the beginning of a President acting unilaterally in this manner. The replacement for the universal tariff is likely to be happen very quickly. In fact, as we started to record, there was an announcement from the administration. They're going to use a section of the Trade act of 1974 related to the balance of payments for essentially the, the universal tariff, however you want to call that. But there's a lot less freelancing involved here and even that section, section 122 has a congressional review clause within it. So Congress will get involved. But I think that's really what ought to happen here. Now many of these tariffs that were declared under AIPA have alternatives in statute that the President can and probably will use to, to keep them in place or keep something like them in place. Both that, that balance of payments section from the dred 74, but also just using section 301, which a lot of the tariffs against China are, are 301 tariffs.
C
Right.
A
And that's a very broad flexible statute that the President has at his disposal despite this ruling. So I think that the refunds are going to be kind of a difficult process and it'll be, definitely will be messy regardless. If I were an importer, I wouldn't be spending that money too quickly because some of it may go to the lawyers. But also I think that, that what, what is really required here is for Congress to step up and work with the President. If they like that revenue, if they like the idea of tariffs for the purposes that the President has argued that they benefit the country, then let's, let's get the elected branch on record.
B
Scott made an important point. The President's reacted already and he victory lap for us. We predicted this. He's using Section 122, as Scott said, to impose a 10% tariff he could go up to 15, but he chose 10. The catch is what Scott referred to. He's. He could only do that for 150 days. And if he wants to go beyond 150 days, then Congress would have to approve it. So they may have a role. Although he also said basically what we had assumed, which is 158, 150 days gives him time to figure out what else to do. And so I think he will then turn to the other statutes that Scott mentioned. And they have more procedural requirements.
A
Yes.
B
And some require public comment. 301 requires a public comment period, 232 requires an investigation, as does 301. And, you know, Trump has a very long and well established record of, of, of committing process fouls, of ignoring the procedural requirements and going right to the decision, with a result being that courts subsequently slap him down and say, you know, you did it the wrong way and you have to go back and do it the right way if you want to make this stick. So we'll see what he does this time. But he's given himself 150 days of breathing room, albeit at a lower tariff level.
C
Yeah. And as we're recording here, the President just left the White House press room after what was a pretty extraordinary, he was heated press conference following the announcement. I want to, I want to get to, you know, into the weeds a little bit more here, Scott. If I'm a private company right now, what are the big questions that I'm asking myself and what are the considerations out of this ruling for me?
A
Well, look, I think that you've got to make the assumption going forward that tariffs are not going to go back to the status quo ante. Right. Whatever, whatever the cause was that that got the current tariff levels on your products, whatever you're importing, I would not assume you return to what they were in, you know, in 2024. What you're probably going to do is make a game plan for what happens if they stay the same and what's the potential margin of improvement that we might see. But for me, I, I would be very, as, as an operating manager, I would think of today's status quo as the new reality, and it may adjust slightly from that. But I wouldn't expect a wholesale repeal of any of these tariffs. I think there are too many opportunities already in statute for the President to do that. So that's the way I'd look at it.
C
Bill, on the refund issue, it's a big question. What do you, what do you think that that heads ultimately it's going to
B
go to court, but I don't think it's a mystery. It's a mystery as to how the administration will do it. My belief is that, that under these circumstances, refunds are required legally. That the most recent estimate of how much that amounts to that I've seen is $170 billion. So it's not peanuts. There is a process for this. When this did come up in the oral arguments, as Justice Kavanaugh mentioned, and one of the lawyers said, yeah, it might be a big mess. In fact, if it's a big mess, it'll be because of the scale. There's a process for this. It's a well established process and it goes on every day. You know, importers underpay or overpay. They miss, you know, they, they make a mistake in declaring what tariff schedule their item falls under and they pay more or less than they're supposed to. Customers makes mistakes and overcharges or undercharges. This is a constant ongoing process of refunds and, and underpayments that require additional payments. So the method, the mechanics are all there. It doesn't happen at this scale. I mean, $170 billion and thousands and thousands of companies is what's going to be implicated here. That's not happened before. That'll be a big challenge, to say the least. The government can make it hard because normally what you do is you go entry by entry. So a container of stuff coming in, you file documents indicating what the duties are on, what's inside that container, and you pay that and move on. But that's one container or that's one ship, one load of stuff, however it comes in. If you're a big importer target or Walmart would be an example, you've got hundreds and thousands of those over the period in question. So can you aggregate them all and file one gigantic request, give me my $48 million back? The government can make this harder. They can make it easy. That would make it easy in a way, but I'm sure the government's going to demand documentation. You can't just come in and assert that you paid all this money, which means you need to have good records. And if you don't have good records, you're up the creek. I mean, I think Scott, Scott alluded to this, right?
A
If any of you filed your, the long form 1040 income tax, you may have gotten a letter like this from the IRS in past years where they do a recalculation and you wrote a little bit of money or you have a little balance due. But think about how much in arrears that often is for individual taxpayers. That's the kind of complexity and, and the demands for data to, to reconcile all this stuff is going to be hairy. It's going to be a lot of work for somebody.
B
It's going to be huge. I think the implication for companies, though, is if you're sitting there waiting for the government to send you a check, you're going to be disappointed. The burden is on the company to file, and there's a couple different ways you can file. Trump apparently commented when he was first informed of the decision, he asked about refunds, and his reaction was, well, we're going to have five years of litigation.
A
Hey, he's in real estate. He knows this stuff.
B
He probably got that right. He didn't get the terrorists right, but I think he got the litigation right. And it proves what we've said many times in this podcast. The big winners here are always the lawyers. And this is going to go on because there will be disputes about, you know, is my data sufficient? Is my data not sufficient? Is my data accurate? And then there'll be disputes over that. The customer service will say, no, know, you have the wrong tariff classification number, and this will go on forever. Eventually, I think companies will get their money back if they file. If they file for it and demand it. But Scott's right. Anybody that's, you know, going out for dinner tonight, you know, on that tab is going to be making a big mistake.
C
Scott, any other angles of the, the refund question here you want to cover before we move on?
A
No, I think, I think that that is going to be the messy part. And the court provided no guidance at all. It's like, you got this wrong, but go figure it out.
C
So, yeah, well, let's take the international view now if we can, Bill, maybe I'll start with you here. But, you know, look at all the countries who have been affected by this, and what, what are they thinking today? But what's their calculus going forward?
B
Yeah, I've been asked that a couple times today. I think the Trump administration will, will say, well, the agreements are agreements, you know, and the other countries entered into them in good faith, and we're sticking with the agreement, and we're all right. We're bound by them, and so are the other countries. Of course, that assumes that they've signed something, which is not true in every case. But at the same time, I think the other countries have got to be thinking to themselves, and I think they'll probably keep it to themselves for a little while, thinking to themselves that, well, you know, we only signed these things under duress. We only signed these things because of the threat of the tariffs that we were being charged, and we made concessions in order to get the tariffs lower. Now that the court has taken that tool away, why do we need to follow through on the concessions we made? Now, I don't think that anybody's going to stand up today and say, deals off, you know, we withdraw our concessions. I think they're going to sit and wait and see what happens. They're going to look and see what the administration does. The 10% is maybe the only move, but at least it's a first move. So I think countries are going to consider rather carefully what action they'll take. Trump's tendency and certain willingness to retaliate at the slightest provocation should give him pause. You don't particularly want to be on his bad side, but you know that they're thinking about this. You know, the, the whole rationale for what we did is now gone. So maybe we should rethink why we did it. And if anybody hasn't done it yet, you know, in the case of negotiations that are not finished or signed, I suspect those will slow down as the other side waits to see what happens. One bellwether will be what the European Parliament does on its agreement, because in that case, the agreement was signed, but in that case, the parliament has to approve it. They've proposed some amendments. They have a vote scheduled, I think, next week and in committee. I think, I think the vote in the full Parliament will be scheduled for sometime in March. It'll be interesting to see if they actually follow through on that or if they slow roll it, waiting to see how this all plays out.
A
Yeah, I think Bill's right. Look, there's a relative equilibrium that has been reached in, in at least Tariff Wars Chapter one, and there was much fear of retaliation. There's much fear of, of real economic harm that didn't happen. And I think a lot of countries, because they are, they've, they've, they've reached an agreement of some sort with the United States and that they are not particularly harmed by the US Agreements with their competitor, competitor nations. For instance, Korea's deal is not that different from Japan's with the United States. And those are, those, those factors are important enough, along with the President's being from Queens, that there's, there's, I think, a tendency to, to. There will be a tendency to, at least in public to not try to rock the boat too much. I mean, I think, I think that there has been a general equilibrium reached. It won't stay that way. Somebody's going to try to, you know, test it.
C
And for me, any guesses who that will be?
A
Well, I'm more curious about, I do have a guess just in a second, but I'm actually more curious about what tactic will be used if not tariffs. I mean, interesting tariff was the solution to a problem with Colombia that was solved between the, the third tee and the fifth green on a weekend golf tournament. And AIPA was nice for that or the early days actually think that the, the likely test will come from Canada. They'll find something to be interesting, there's something to provoke that, that will be relevant in, in a few months when we get into you smacker negotiations. But I think they'll test that sooner just because they know us so well and there's such a close relationship and there's, it would be very much like them. So, but that's just my guess. Somebody will try something. But until then, you got enough problems in life. Why, why upset the apple cart Bill?
C
I know you've been asked at least once today by a journalist what what this means for the Trump Xi Summit coming up in April. Any immediate impacts, you think, on US China at this point?
B
Yeah, that's a really good question. And it has come up particularly since apparently they've now announced the dates of the visit, which I think are what, March 31st through April 2nd or something like that. I think the first thing to note is that I believe the bulk of the China tariffs were not IPA tariffs. They were placed through the 301 investigation in Trump's first term. And under Section 232, the Chinese were a major victim victim for a lot of those. I mean, that, that's, they're not immune from the IPA tariffs, but they're not, they're not as much off the hook as a lot of other countries might be. So I'm, you know, I think though, from Xi Jinping's point of view, he's got to be thinking this weakens the, weakens Trump. I mean, it takes away, at least for the time being, a big tool and a significant one because the statutes he's using in the short run to replace them limits him to a 15% tariff. So big threats right now are not credible. And I think that will allow the Chinese to think, you know, we're dealing with somebody now who's finally has some constraints that have been put on him. That may alter the tone of the meeting. Of course, that then leads to the question of what are they going to talk about at the meeting anyway? And my theory has been that, I think, which I ranted about on a previous episode, has been that, you know, we're caught in this kind of loop of somebody does something that the other side doesn't like, and then a loop of retaliation, counter retaliation, senior official meeting where they declare a ceasefire and eliminate the retaliation, and then the loop starts all over again. Right now, we're sort of in a peaceful mode. Both sides seem to be trying to avoid doing things that would result in the meeting being canceled. There is always the possibility that that won't work. You know, some incident involving Taiwan, an incident in the South China Sea. Trump gets annoyed for some reason and tries to impose some new tariff. But let's assume calm prevails for the next six weeks and they have a meeting. I'm not sure. I think the agenda ends up being the same as it always has been, which for Trump is transactional. Buy More soybeans, fulfill your Trump 1.0 commitments. He's got a study underway to determine the extent to which they kept their promises the first time. And the answer, no surprises here, spoiler alert, was I think the Peterson Institute calculated they fulfilled about 63% of their commitments. So there's a lot more they could be doing. Trump is a transactional guy. I think he's going to approach it that way. The idea that they're going to have big discussions to solve big problems, like they're going to stop, they're, they're going to stop their exporting and overcapacity policy, they're going to stop subsidizing, they're going to stop stealing our IP or the idea that we're going to give them all our advanced technology.
A
Not going to happen.
B
No, none of that's going to happen. So they discuss small stuff before we wrap here.
C
And we'll keep this one shorter than normal episode, given it's an emergency show. I just. Quick responses from both of you. Anything that surprised you out of this ruling today?
B
Bill? I was a little surprised at the clarity of the decision. It was taking so long. I thought it was taking so long because they were trying to assemble a single majority and a single opinion. Turns out it took so long because there were so many opinions and so many people wanted to write about it. But I was kind of expecting them to go along with the argument that, well, IPA doesn't permit these tariffs, but it might Permit other tariffs and then worst case, send that back to the lower courts to figure out what that meant. And they didn't do that. They just came right out, flat out and said AIPA does not permit tariffs, period. Which kind of shuts the door on that, which I think is probably good from a legal standpoint. But it surprised me.
A
Yes, I would agree with Bill that it was given the appellate process on all these cases and, and the differences of opinions among the p. The judges on the appellate panels about what was, what was okay and what wasn't. I really expected a lot more, you know, sort of, sort of Solomonic action in, in, in the final decision. But it, but it was very clean based on, based on the statutory construction. So I think that's what you want a Supreme Court to do in, in cases like this. I'm glad they didn't review what constitutes an economic emergency because just as a weekend Trivia quiz, the CRS produced a beautiful chart of the last 50 economic emergencies since under declared under AIPA. And there's some real hummers in here that, that I have no recollection of. Like there was one for the Afghan Central Bank. I didn't know Afghanistan had a central bank, but it created an economic emergency that was declared and so at least they didn't take that part of the statute apart. I don't think, of course it wasn't in being contested but, but I think the court did, did, did the job they needed to do. And my, my biggest hope is that the Congress takes this as the wake up call that it actually is. And they need to be in the, they need to decide what, what their statutes mean. And if the statutes are unclear, they're, they ought to amend them. But we'll see what happens.
B
So far they've not been particularly decisive about that. Both Speaker Johnson and Republican Senate Leader th have. Their immediate reaction is, well, we'll have to work with the President on that. And with nobody suggesting any particular course of action, I think Scott, they may step up. Scott could be, Scott's hopes could be realized. I think it's going to take him a while to figure out what stepping up means and whether they've got the votes to do it. There's already a pretty clear view coming out that they probably don't have the votes to enact the tariffs in question. I mean, if you look at the Canadian vote in the House two weeks ago and the vote in the Senate on, on even on all the IPA tariffs, it's pretty clear. The votes I think are not there to enact them, but they might be there for something else.
C
We will see. Trey, guys, thank you. Thank you to our listeners for your patience. And we finally got you your long awaited emergency episode for the Supreme Court decision. The magic day turned out to be February 20th. So this will certainly be a theme that we are talking about frequently in the episodes to come in the weeks ahead. Otherwise, thank you all for joining us.
A
Thank you.
C
You've been listening to the Tray Guys, a CSIS podcast. For more audio content, visit csis.orgpodcasts thanks for tuning in.
Episode: Emergency Trade Guys: Supreme Court Strikes Down IEEPA Tariffs
Date: February 20, 2026
Host: Alex Kisling
Guests: Scott Miller & Bill Reinsch (The Trade Guys, CSIS)
This emergency episode dives into the ramifications of the U.S. Supreme Court's 6-3 decision striking down President Trump's use of emergency powers (specifically under the International Emergency Economic Powers Act, IEEPA or “AIPA”) to impose tariffs. Trade experts Scott Miller and Bill Reinsch break down the Court’s reasoning, the immediate and long-term impact on U.S. trade policy, the legal and economic outcomes—especially for businesses—and the international repercussions, all in an engaging, conversational style.
Nature of Decision:
Major Questions Doctrine:
Refunds & Remedies:
Presidential Response:
Tariff Alternatives Going Forward:
Congress’ Role:
Outlook for Companies:
Refund Mechanics & Litigation:
Bill Reinsch on SCOTUS Irony:
Kavanaugh’s Dissent:
Scott Miller on Congressional Role:
Bill Reinsch on Refunds:
Trump's reported reaction on refunds:
This episode delivers a vivid, expert-yet-accessible breakdown of the Supreme Court’s decision ending the President’s tariff powers under IEEPA. The discussion covers legal doctrine, the practical next steps for policymakers and businesses, and the uncertain, potentially turbulent implications for both U.S. commerce and America’s trading partners. It’s a must-listen for anyone following the evolution of U.S. trade policy—or just wanting to understand why “the big winners here are always the lawyers.”