175. Tariffs, TPS, and the OT2025 Trump Docket

Two appellate rulings from opposite ends of the country on Friday illustrate how much the Court's new term is going to be dominated by Trump cases—even ones in which the Court has already intervened.

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The last week of August was a quiet one at the Supreme Court; the only action from the full Court was Wednesday’s denial of a stay of execution, over no public dissents, to Florida death-row inmate Curtis Windom. Instead, most of the big legal news was made elsewhere—including major rulings from at least three circuits (the D.C. Circuit; the Federal Circuit; and the Ninth Circuit); and an array of significant decisions from different district courts.

I thought I’d use today’s issue to focus on two of the circuit rulings—both of which came down Friday from opposite ends of the country. First, the full Federal Circuit, by a vote of 7-4, held that at least some of the tariffs imposed by President Trump exceeded his statutory authority under the International Economic Emergency Powers Act (IEEPA). And later on Friday, a unanimous three-judge panel of the Ninth Circuit affirmed a district court injunction that had blocked Secretary Noem’s effort to terminate “temporary protected status” (TPS) for more than 600,000 Venezuelan migrants. Neither of those rulings had (or will have) immediate effects; the Federal Circuit’s tariffs ruling won’t go into effect until at least October 14 (and, as explained below, probably not even then). And the Supreme Court, back in May, had already stayed the district court injunction in the Venezuelan TPS case—which can go into effect only if the Supreme Court ultimately affirms it on the merits.

Both of these cases provide powerful illustrations of two separate, but related, points: First, the proliferation of emergency relief, for better or worse, has led to a world in which we’re seeing more and more cases like these—where courts hold that government action is unlawful even while it is allowed to continue. That may seem odd logically, but the more courts are actually being faithful to the criteria for emergency relief, the more plausible it is, legally.

Second, both of these cases seem teed up for the Supreme Court to take them up during the term that begins five weeks from today—perhaps the first two “merits” cases arising out of Trump administration policies to reach the justices. There is every reason to believe not only that they won’t be the last, but that, just as the October 2024 Term came to be dominated by Trump-related emergency applications, the story of the October 2025 Term is going to be the Trump chickens coming home to roost—with the justices finally forced to weigh in directly, one way or the other, on the lawfulness of at least some of what the current administration is up to.

Folks will have their own views about how that review is likely to go; the relevant point for present purposes is that, if the Court was hoping to lower the temperature of its Trump-related docket, that hope may have been … unrealistic.

But first, the (little) news.

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On the Docket

As noted, the full Court handed down only a single order last week—the denial of a stay in the Curtis Windom death penalty case.

Part of why the Windom order was the only one out of the Court last week was because of the denouement in the foreign aid impoundment case—about which I wrote on Wednesday. In a nutshell, the Trump administration had asked the Supreme Court for emergency relief because, in its view, the full D.C. Circuit had not moved quickly enough to put into effect a 2-1 panel ruling from August 13 that would’ve made it much more difficult for anyone to challenge the executive branch’s refusal to spend congressionally mandated appropriations.

Well, the full D.C. Circuit weighed in after the close of business on Thursday. To make a long story short, the original panel agreed to significantly revise its ruling—in a way that will allow some of the challengers’ strongest claims to go forward (when they previously could not have). In response, the full court voted to not rehear the case. Thus, instead of the possibility that the Supreme Court would’ve put the entire original panel ruling into effect (which, in my view, would have been the most troubling possible outcome both on the merits and because of the government’s behavior), the result is a much narrower (amended) D.C. Circuit ruling that lets the plaintiffs proceed—and that moots the government’s application in the Supreme Court, which, on Friday, it promptly withdrew.

That leaves only one emergency application from the Trump administration still pending, and it’s a biggie—the application seeking to freeze a lower-court order that had blocked what the plaintiffs claim are unlawful “stop-and-arrest” practices by roving immigration patrols in Southern California. As of today, it’s been pending for 25 days, and fully briefed for 19, so a decision could come as early as tomorrow (and, whatever else it will be, almost certainly won’t be unanimous).

Another emergency application that appears to have received the Court’s attention comes from South Carolina, which is asking the justices to freeze an injunction the Fourth Circuit had entered that requires a public high school in Berkeley County, South Carolina to allow a single transgender student to use the bathroom corresponding with their gender identity. Although the Supreme Court is already set to hear cases later this term about the constitutionality of state laws limiting transgender students to activities and facilities related to their biological sex (the question the Court declined to answer in Skrmetti), the Fourth Circuit granted relief in this case, now captioned South Carolina v. Doe, based upon circuit precedent under which such laws are unconstitutional. Chief Justice Roberts ordered the plaintiffs to respond to the application by 4:00 p.m. (ET) this Friday. Obviously, if the Court intervenes now, that would be quite a sign for where it’s heading in those other cases.

Finally, we also expect on Friday morning to receive the final set of summer housekeeping orders from the Court. The justices aren’t set to meet again in person until the “Long Conference,” scheduled for Monday, September 29 (four weeks from today). And they’ll next take the bench the following Monday, October 6, for the “First Monday” of the October 2025 Term.

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The One First “Long Read”: Tariffs, TPS, and Trump

During the first Trump administration, one of the hallmarks of the Supreme Court’s increased interventions through emergency applications is how few of the cases made it back to the justices on the merits. For an array of reasons, including changed behavior by the federal government; changed litigation tactics by the challengers; and, in a number of cases, simply the end of the Trump administration (which mooted out a number of pending challenges during the Court’s October 2020 Term), only a couple of cases that first reached the Court through the emergency docket made it back for plenary review.

This time around is likely to be very different. Taking the timing point first, everything is moving faster—including the Trump administration and the lower courts. We’re not even eight months into the current presidency, and already there are multiple cases that (1) went to the Supreme Court on emergency applications; and (2) have at least been argued on the merits before courts of appeals. In addition to the tariffs and TPS rulings (about which more below), the two other most visible examples are the Alien Enemies Act case (which was argued in the Fifth Circuit on June 30), and the Wilcox case (about the President’s power to remove members of the National Labor Relations Board and Merit Systems Protection Board), which was argued in the D.C. Circuit on May 16. And they’re not alone. Indeed, even without any cases getting expedited (and I wouldn’t bet even a nickel against that possibility), it stands to reason that the Court will have somewhere between four and 10 cases on its merits docket during the October 2025 Term that are, quite specifically, about the merits of challenges to actions by the Trump administration—questions it has been remarkably successful in dodging even as it has ruled on 20 of Trump’s emergency applications to date. To make a long story short, for wonky procedural reasons, Friday’s rulings in the tariffs and TPS cases are likely to be among the first.

The Tariffs Ruling

Taking the tariffs ruling first, there’s quite a lot to say about the Federal Circuit’s 7-4 ruling that many of the tariffs imposed by President Trump under IEEPA are unlawful (here’s a good summary of both the ruling and the context by my colleagues at CNN).

For present purposes, there are two important points to emphasize: First, four of the seven judges in the majority would have held that IEEPA confers no authority to impose tariffs at all—a conclusion that would call into question even more of the Trump administration’s economic measures than the reciprocal and trafficking-related tariffs at issue in the Federal Circuit case. The majority didn’t disagree with the concurring judges; it just said it wasn’t reaching the question—even though its analysis does seem to call into question the use of IEEPA, as opposed to other statutes, as the basis for any tariffs. In other words, this ruling arguably implicates most of President Trump’s tariffs, and not just some of them.

Second, although the Federal Circuit remanded the case to the Court of International Trade to determine what the appropriate remedy ought to be (especially in light of the Supreme Court’s narrowing of universal injunctions in CASA), it issued a rather specific order respecting the mandate, i.e., when its ruling will go into effect: Specifically, the Federal Circuit’s ruling will not go into effect until at least October 14—in order to allow the parties to seek review from the Supreme Court (the lower-court ruling had already been stayed by the full Federal Circuit, so it remains on hold). And if anyone files for certiorari by October 14, the mandate will be withheld “pending (1) the Supreme Court’s denial of certiorari or (2) a judgment of the Supreme Court if certiorari is granted.” Until then, “the United States Court of International Trade shall take no further action in this case.”

In other words, the Trump administration has every reason to not wait for the remand, but to rather seek plenary review from the justices now—if for no other reason than to keep the existing tariffs in place for as long as possible. And if the petition is filed by October 14, not only would that preserve the status quo (since it would suspend the issuance of the mandate), but that’s well within the time frame for the Court to grant certiorari, conduct plenary review, and issue a ruling during the upcoming term. Hence my confidence that, one way or the other, the Supreme Court will have to confront at least many of President Trump’s tariffs during its upcoming term (and that a cert. petition in the tariffs case is a good candidate for getting there first).

TPS for Venezuelans

Both because of the Federal Circuit’s ruling and because it was a Friday before a holiday weekend, the Ninth Circuit’s ruling later on Friday in TPS Alliance v. Noem got a lot less media attention. But it’s also a big deal.

I wrote about the TPS Alliance case back in May—when the Trump administration first sought emergency relief from the Supreme Court. In a nutshell, shortly after coming to office, Secretary of Homeland Security Kristi Noem took two steps that purported to immediately revoke TPS for Venezuelans—even though the deadlines under Biden-era regulations were months or years away. (Without such “temporary protected status,” many migrants would be subject to immediate arrest, detention, and removal from the United States.)

In March, a California district court had issued an order postponing the new deadlines on the ground that Secretary Noem’s actions were likely unlawful. At the time, the Ninth Circuit denied the government’s application for a stay pending appeal. But on May 19, the Supreme Court, with no explanation (and over a public dissent from only Justice Jackson), granted a stay—clearing the way for the administration to proceed with its cancellation of TPS, at least for Venezuelan migrants in the United States.

Especially because it was unexplained, the Supreme Court’s May 19 stay simply froze the status quo while the government appealed the district court’s ruling. That appeal is what the Ninth Circuit resolved on Friday. Writing for a unanimous panel, Judge Wardlaw held that “Plaintiffs are likely to succeed on their claim that the vacatur of a prior extension of TPS is not permitted by the governing statutory framework.” As she explained:

In enacting the TPS statute, Congress designed a system of temporary status that was predictable, dependable, and insulated from electoral politics. Congress rejected the prior system of deferred action based on “the vagaries of our domestic politics,” and instead enacted fixed terms of protected status of between six and eighteen months, A reading of the statute that allows for vacatur would render these terms—and Congress’s design—meaningless. Plaintiffs are therefore likely to succeed on the merits of their first APA claim. Moreover, Plaintiffs have demonstrated that they face irreparable harm to their lives, families, and livelihood, that the balance of equities favors a grant of preliminary relief, and that nationwide relief is appropriate.

For what it’s worth, I think Judge Wardlaw’s opinion is especially persuasive. But even for those who don’t, it rather forces the Trump administration’s hand. Although the ruling produces no immediate effect, the (typical) wording of the Supreme Court’s May 19 stay now comes into play. That order provided that the district court’s ruling:

is stayed pending the disposition of the appeal in the United States Court of Appeals for the Ninth Circuit and disposition of a petition for a writ of certiorari, if such a writ is timely sought. Should certiorari be denied, this stay shall terminate automatically. In the event certiorari is granted, the stay shall terminate upon the sending down of the judgment of this Court.

In other words, the Supreme Court’s stay will expire if the government doesn’t timely seek certiorari. Otherwise, the stay remains in place until the Court takes up the government’s cert. petition and decides it. And although the Ninth Circuit, unlike the Federal Circuit, did not do anything to try to tweak the timing of such a government request (I’m not sure it could have), that petition is now due, under the ordinary timing rules, on Friday, November 28. Even with an extension (which, by law, can’t be for longer than 60 days), that case will get to the Court this term—where the justices will have to do something they were able to avoid back in May: Actually discuss whether the district court’s ruling was correct, and, if not, explain why.

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I don’t mean to overstate the point: The TPS ruling is, for obvious (if disappointing) reasons, not as big a headline as the Federal Circuit’s decision in the tariffs case. But they’re both members of a class that is about to get larger—cases in which the Supreme Court will almost certainly have to conduct plenary review of controversial policy initiatives by the Trump administration.

It is certainly true that, to many, the Court has already tipped its hand, at least in the TPS case, by issuing a stay. But there are two points I’ve made before that seem worth making again: First, especially when the Court’s initial intervention on the emergency docket comes without any substantive analysis, it is difficult, at best, to see the decision as expressing any specific view about the merits; different justices could have voted for emergency relief for different reasons—not all of which will also apply to plenary review on the merits. And second, even for those who are convinced that the Court is making what are effectively merits-based determinations at the emergency application stage, and just not explaining them, we have numerous examples in recent years of the Court voting one way at the emergency application stage, and coming out the other way on the merits. Sometimes, plenary review helps to persuade justices that their initial assessment was, if nothing else, incomplete.

And for those who view the Court’s behavior in Trump-related cases to this point less as reflecting the justices’ views of the merits, and more as an effort on the part of at least some of the justices to buy time and to avoid excessive confrontations with the Trump administration, these cases—and the ones that will soon follow—are perhaps the best evidence that such an approach was always going to be short-lived. If the dominant theme of the term that ends in five weeks has been emergency applications from the Trump administration, it appears increasingly likely that the dominant theme of the term to come is going to be the underlying merits of Trump-related cases. Put another way, the Trump reckoning is coming, sooner rather than later—and so is the Court’s.

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SCOTUS Trivia: Septembers and the Chief Justice

This Wednesday marks the 20th anniversary of the passing of Chief Justice William H. Rehnquist due to complications from the thyroid cancer he had battled throughout the October 2004 Term. At the time, Rehnquist was the first justice to die while still serving on the Court since Robert Jackson had passed away in October 1954—and the first Chief Justice to do so since Fred Vinson in September 1953. (We’ve since had two more justices pass away while still in office—Justice Scalia in 2016 and Justice Ginsburg in 2020.)

Starting with Vinson, three of the last four vacancies in the Court’s middle seat have occurred in the month of September—including Vinson’s, Rehnquist’s, and Warren Burger’s—who stepped down from the Court on September 26, 1986 (Earl Warren stepped down in June 1969).

The “trivia,” such as it is, is that September is thus tied for June as the month in which the most Chief Justice vacancies have arisen. (In addition to Warren, John Jay and Charles Evans Hughes both also stepped down in June.) Of course, it’s a very small dataset, and something tells me that John Roberts isn’t going anywhere anytime soon. That’s why they call it trivia.

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