Marbury in the Trade Context: CAFed Declares Trump’s Tariffs Illegal, but Limits Relief

by Dennis Crouch

In a 7–4 precedential decision, the Federal Circuit has affirmed a Court of International Trade (CIT) core ruling that the International Emergency Economic Powers Act (IEEPA) does not authorize the Trump Administration’s sweeping “reciprocal” and “trafficking” tariffs that the President imposed by executive order on virtually all imports from nearly every country. V.O.S. Selections, Inc. v. Trump, Nos. 2025-1812, -1813 (Fed. Cir. Aug. 29, 2025) (25-1812.OPINION.8-29-2025_2566151)

The analysis of any presidential power case begins with the US Constitution that identifies powers and roles of each branch of the government.  The key text comes from Article 1, Section 8, Clause 1 which provides Congress with the power over tariffs:

The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;

The key question in the case is whether Congress handed at least some of those powers to the President via statute in the IEEPA in order to take swift actions to account for emergency situations.

The basic holding in the appeal: IEEPA’s grant to “regulate” importation in emergencies does not clearly include the power to impose open-ended, across-the-board tariff schedules, especially given Congress’s historic practice of delegating tariff authority expressly and with substantive and procedural limits. The Federal Circuit affirmed declaratory relief invalidating the orders but ultimately vacated the CIT’s nationwide injunction and instead ordered the tribunal to reconsider the availability and scope of injunctive relief under eBay and the Supreme Court’s recent limits on universal injunctions. Trump v. CASA (2025).

Throughout this litigation, the Federal Circuit has projected institutional caution about a frontal clash with President Trump or his tariff campaign. The court spoke en banc and per curiam - rather than spotlighting a single judge or even three judge panel - and also coupled its statutory ruling limiting Trump's power with remedial restraint by vacating the CIT’s universal injunction. That approach eases immediate pressure from the executive branch and the trade apparatus while preserving the core legal holding.

Like Chief Justice Marshall in Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803), the Federal Circuit chose to declare what the law is while carefully avoiding a direct institutional confrontation with the executive branch. The court firmly rejected the legal foundation for Trump's sweeping tariff regime but then immediately softened the blow by vacating the nationwide injunction that would have provided immediate coercive relief, creating a Marbury-like weave between judicial authority and institutional restraint.