by Dennis Crouch
The Federal Circuit’s role as the appellate court for international trade disputes has thrust it into the center of the most consequential separation-of-powers case in a generation. On February 20, 2026, the Supreme Court affirmed the Federal Circuit’s en banc ruling that the International Emergency Economic Powers Act (IEEPA) does not authorize the President to impose tariffs. Learning Resources, Inc. v. Trump, 607 U.S. ___ (2026); Trump v. V.O.S. Selections, Inc., 607 U.S. ___ (2026). And today, the Federal Circuit dissolved the stay that had held its mandate in abeyance since August 2025, ordering its mandates to “issue forthwith.” V.O.S. Selections, Inc. v. Trump, Nos. 2025-1812, -1813 (Fed. Cir. Mar. 2, 2026) (en banc per curiam). The case now returns to the Court of International Trade (CIT), which faces the formidable task of overseeing what could be the largest government refund obligation in American history: an estimated $175 billion in IEEPA tariff collections that the nation’s highest court has declared unlawful.
The briefing on the mandate motion offers a window into the pace of potential refunds. Former US Solicitor Neal Katyal (now with Milbank), representing the V.O.S. plaintiffs, filed the motion on February 24, arguing that the Supreme Court’s judgment satisfied the express condition this Court had set for releasing the mandate and that every day of delay inflicted real harm on the small businesses awaiting refunds. The motion quoted Treasury Secretary Bessent’s public statement that refunds would not issue until the CIT ordered them, and President Trump’s suggestion that the question would “get litigated for the next two years.” The government’s opposition, filed by the DOJ Appellate Staff, urged the court to wait at least until the Supreme Court formally sends down its certified judgment (32 days after entry under Supreme Court Rule 45.3), and cross-moved for a 90-day stay to “allow the political branches an opportunity to consider options.” The government invoked Northern Pipeline Construction Co. v. Marathon Pipe Line Co., 458 U.S. 50 (1982), where the Supreme Court stayed its own judgment to give Congress time to respond. DOJ also characterized the plaintiffs’ monetary harm as compensable rather than irreparable, and warned that the refund process would be protracted regardless. Katyal’s reply, filed over this past weekend was pointed: the government “cites nothing” for the proposition that this Court must wait for the Supreme Court’s certified judgment and the government notably did not deny the force of its own stipulations guaranteeing refunds to all similarly situated plaintiffs.
I have been covering this case from the beginning because the Federal Circuit sits at the apex of both patent law and international trade. Although tariff law is not patent law, the institutional dynamics are the same ones Patently-O readers watch every day: questions of statutory interpretation, the scope of delegated authority, and the Federal Circuit’s willingness to check executive overreach. The Supreme Court’s 6-3 ruling came down squarely on the side of the importers and the twelve state attorneys general who challenged the tariffs, holding that IEEPA’s authorization to “regulate … importation” does not encompass the power to levy tariffs of unlimited scope, rate, and duration. See, Dennis Crouch, Federal Circuit Takes Center Stage in Trump’s Tariff Campaign, Patently-O (May 30, 2025); Dennis Crouch, Marbury in the Trade Context: CAFed Declares Trump’s Tariffs Illegal, but Limits Relief, Patently-O (Aug. 29, 2025); Dennis Crouch, Supreme Court Grants Cert in Parallel Cases from Federal Circuit and DC Circuit, Patently-O (Sept. 10, 2025).
The International Emergency Economic Powers Act (IEEPA), 50 U.S.C. § 1701 et seq., was enacted in 1977 to replace the broad wartime authority under the Trading with the Enemy Act (TWEA). IEEPA authorizes the President to declare a national emergency in response to an "unusual and extraordinary threat" originating outside the United States, and then to "investigate, regulate, direct and compel, nullify, void, prevent or prohibit" certain economic transactions. No President had ever invoked IEEPA to impose tariffs before 2025. The statute contains no reference to "tariffs," "duties," or "taxes."
Chief Justice Roberts authored the majority opinion, joined in full by Justices Gorsuch and Barrett, and joined in part (on all but the major questions doctrine analysis) by Justices Sotomayor, Kagan, and Jackson. The reasoning proceeded along two tracks. First, all six justices in the majority agreed that IEEPA’s text does not authorize tariffs. Roberts observed that the word “regulate” ordinarily means to control or govern, not to raise revenue, and that the government could not identify any federal statute in which “regulate” has been understood to confer taxing authority. The statute lists nine verbs and eleven types of transactions, but never mentions tariffs or duties. Congress has delegated tariff authority to the President through other statutes, such as Section 232 of the Trade Expansion Act of 1962 and Section 122 of the Trade Act of 1974, but each of those delegations is explicit, comes with rate caps, time limits, and procedural preconditions. IEEPA has none of those features.
Second, in a portion of the opinion joined only by Gorsuch and Barrett, Roberts invoked the major questions doctrine, reasoning that Congress does not delegate “highly consequential power” through ambiguous statutory language. Justice Kagan wrote separately to emphasize that the textual case was strong enough on its own. Justice Thomas dissented, and Justice Kavanaugh authored the principal dissent (joined by Thomas and Alito), arguing that “regulate … importation” plainly encompasses tariff-setting and warning that the refund process would be a “mess.” But, that mess is President Trump’s own making.
Today’s Federal Circuit Order. The per curiam order issued today by eleven of the twelve active Federal Circuit judges (Judge Newman was excluded from participation). With the mandates now in hand, the CIT is free to act, and the plaintiffs have already filed a motion for permanent injunction in the lower court.
The Refund Scramble. The Supreme Court’s opinion did not order refunds or prescribe any mechanism for obtaining them. Justice Kavanaugh’s dissent described the refund process accurately: it will be a mess.
Meanwhile, the administration has already pivoted to alternative tariff authorities. Within hours of the Supreme Court’s ruling, President Trump signed a proclamation under Section 122 of the Trade Act of 1974 imposing a 10% “temporary import surcharge” on products from all countries, effective February 24, 2026, for 150 days. Section 122 has never before been invoked, and it caps tariffs at 15% for a maximum of 150 days unless Congress votes to extend them. The administration has also signaled expanded use of Section 232 (national security tariffs on steel, aluminum, and potentially other sectors), Section 301 (retaliatory tariffs for unfair trade practices), and the rarely invoked Section 338 of the 1930 Tariff Act (anti-discrimination tariffs). Secretary of the Treasury Bessent stated that combining these authorities “will result in virtually unchanged tariff revenue in 2026.”