Federal Circuit affirms IEEPA tariffs unlawful, 7-4 en banc

On 29 August 2025 the U.S. Court of Appeals for the Federal Circuit, sitting en banc, affirmed in a per curiam 7-4 decision in V.O.S. Selections, Inc. v. Trump (No. 25-1812, consolidated with the state attorneys general case) that “IEEPA’s grant of presidential authority to ‘regulate’ imports does not authorize the tariffs imposed by the Executive Orders.”¹ Eleven of the court’s twelve active judges participated; Judge Pauline Newman, who remains under a renewed Judicial Council suspension, did not.¹ Judge Taranto, joined by Chief Judge Moore and Judges Prost and Chen, dissented.¹ The court vacated the U.S. Court of International Trade’s universal permanent injunction and remanded for the CIT to reweigh the eBay injunction factors and to apply the Supreme Court’s intervening universal-injunction guidance in Trump v. CASA, Inc., 145 S. Ct. 2540 (2025).¹² The court stayed its mandate until 14 October 2025 to permit the government to seek certiorari; the IEEPA tariffs remain collected during the stay.³

1. The majority read the IEEPA “regulate” verb at 50 U.S.C. § 1702(a)(1)(B) against the statute’s text, structure, and legislative history, and concluded that the absence of any tariff-specific authority — combined with the existence of separate statutes that do authorise tariffs (Section 232 of the Trade Expansion Act of 1962, Section 301 of the Trade Act of 1974, and Section 122 of the Trade Act of 1974) — weighed against reading “regulate” to encompass tariffs.¹⁴ The court also held that the major-questions doctrine, articulated in West Virginia v. EPA, foreclosed the government’s reading.¹⁵

2. Vacatur of the universal injunction narrows the immediate relief: refunds and rate-corrections under the surviving plaintiff-specific relief proceed through CBP reliquidation under 19 C.F.R. § 173.3, with broader classes contingent on the CIT’s remedy on remand.⁶¹

3. The 14 October 2025 stay-of-mandate deadline aligns with the government’s window to seek certiorari under 28 U.S.C. § 1254(1) and Supreme Court Rule 41; IEEPA tariffs remain collected during the stay.³ The Solicitor General is expected to file a cert petition within the stay window.