Author: Li Hanming
Recently, federal judges in the United States have been particularly active - as Trump's every executive order touches the rice bowls and vested interests of many, it inevitably faces Judicial Review requests from different entities; and each Judicial Review request is accompanied by lengthy appeal processes and haggling, bringing enormous uncertainty to policy implementation.
Looking specifically at the tariff issue, Trump's tariff cases have already attracted over a dozen Judicial Review requests. To understand the attitude of different levels of judicial institutions towards Trump and analyze their influence, we need to find clues from the case files.
Among these Judicial Review cases, there are individual lawsuits (Barnes v. United States, 1:25-cv-00043, International Trade Court, decided against the plaintiff on May 23), company lawsuits (EMILY LEY PAPER INC v. TRUMP, 3:25-cv-00464, Northern District of Florida Federal Court, April 3, LEARNING RESOURCES, INC. v. TRUMP, 1:25-cv-01248, DC Federal District Court, April 22, transferred to International Trade Court on May 21), and lawsuits by five companies (V.O.S. Selections, Inc. v. Donald J. Trump, 1:25-cv-00066, International Trade Court, plaintiff won on May 29, execution suspended pending appeal).
Simultaneously, state governments have also filed lawsuits. First, on April 16, California separately sued Trump in the Northern District of California Federal Court (case number 3:25-cv-03372, result pending); second, on April 23, twelve states including Oregon, Arizona, Colorado, Connecticut, Delaware, Illinois, Maine, Minnesota, Nevada, New Mexico, New York, and Vermont sued at the International Trade Court in New York (case number 1:25-cv-00077, merged with case 00066 due to similar circumstances).
What we can see is that "jurisdiction争" is always the first point of any litigation. California did not choose to sue at the International Trade Court in New York four thousand kilometers away, but instead selected the Northern District of California Federal Court near home; naturally, the federal government's representative lawyers did not want to fight an away game and immediately requested jurisdiction transfer on April 17. As both parties have been arguing for over a month, the first-filed 03372 case is still disputing jurisdiction.
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In terms of judicial personnel composition by nominating president, California also has its own calculations. In the trial court, cases are randomly assigned (simple cases draw one current judge, complex cases draw three), so they try to avoid drawing three judges sympathetic to Trump's policies. For instance, in Harvard's lawsuit against the Department of Homeland Security (1:25-cv-11472), the assigned judge was Obama nominee Allison Burroughs. Sister Allison ruled swiftly - filing on the 23rd and issuing a Temporary Restraining Order the same day, temporarily restoring Harvard's international student admission qualifications.
The opposite scenario also exists - the April 3 lawsuit by Emily Ley Paper Inc in the Northern District of Florida Federal Court (3:25-cv-00464), with Judge Wetherell (a Trump nominee) quickly transferring this "hot potato" case, hoping it would be as far from him as possible. Thus, on May 21, the case was transferred to the International Trade Court for continued hearing. Once the Justice Department saw someone agreeing to transfer, they immediately used this precedent to approach California.
In the Northern District of California Federal Court, currently no Trump-nominated judges exist; while the International Trade Court's 14 judges include 3 Trump nominees (Reif, Baker, and Vaden). Statistically, there are 364 possible combinations when drawing 3 judges from 14. Among these, a 3:0 scenario with Trump's nominees has 1 possibility, 2:1 has 33, with the most probable being 9.34%; 1:2 and 0:3 each have 165 possibilities, each occupying 45.33%. In other words, there's over a 50% chance of drawing at least one Trump-nominated judge; this probability increases if other judges are absent.
In fact, among the judges drawn for cases 00066/77, Reif, a 2019 Trump nominee, was selected. We always say "not afraid of ten thousand scenarios, just that one possibility", so California choosing a more reliable venue is only natural.
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Conversely, in appellate and supreme courts, panel composition is based on the entire judicial body. For example, except for Chief Justice Newman who is temporarily suspended due to illness, all 11 circuit judges of the Federal Circuit Court of Appeals participated in the appeal for cases 00066/00077 (appeal case number changed to 2025-1812/13). Therefore, even in the Ninth Circuit Court of Appeals where Trump appointed over one-third of judges, the case would still likely favor the plaintiff California side based on numerical advantage.
After analyzing the litigation participants, we now analyze the core dispute of the cases. The core dispute in all three lawsuits concerns "who has the power to establish tariffs".
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Therefore, he used the International Emergency Economic Powers Act in this tariff war. However, imposing tariffs on all countries and all products is a major issue, so the core of the three lawsuits is whether "IEEPA grants the president such extensive powers". In fact, the clause authorizing the president in IEEPA (Section 1702 of Title 50 of the US Code) never mentioned the word "Tariff"; and in the nearly 50-year history of IEEPA (implemented on December 28, 1977), no one except Trump has used it to collect tariffs.
The previous use of IEEPA was generally for sanctions. For example, during the Iran hostage crisis, President Carter used this newly passed law to freeze Iranian government assets in the United States; subsequent sanctions against Venezuela and other countries were also conducted under the IEEPA framework; even the sanctions against Huawei during his first term were based on the reason that "Huawei violated IEEPA sanctions against Iran".
The three lawsuits attacked different points.
The five companies' lawsuit attacks its necessity - if trade deficits themselves do not constitute an emergency, then Trump naturally loses the legal basis for imposing tariffs under IEEPA. The lawsuit points out that "this so-called emergency is a figment of his own imagination" and "trade deficits, which have persisted for decades without causing economic harm, are not an emergency. Nor do these trade deficits constitute an 'unusual and extraordinary threat'".
Twelve states attack Trump's broad interpretation. IEEPA authorizes the president to "regulate" imports and exports, but it is usually used to prohibit imports and exports (such as banning high-performance graphics cards to China). The lawsuit by twelve states points out that "'regulate' refers to embargoes and sanctions (which is what IEEPA has consistently been used for), and interpreting 'regulate' to mean 'ad valorem duty' would be incongruous with the context in which it appears".
California chose to attack Trump for not properly communicating with Congress, violating the congressional consultation clause. IEEPA stipulates that the President shall, in every possible instance, consult with Congress before exercising any of the authorities granted by this chapter and shall consult regularly with Congress so long as such authorities are exercised.
As we just mentioned, there are no written laws or precedents regarding whether IEEPA grants Trump the power to collect tariffs (in contrast, the Harvard lawsuit against Trump was quickly decided due to previous immigration ban precedents), so judges are at a loss. The complexity of this matter can be seen from the previous jurisdictional disputes - the federal government argued that "only the International Trade Court has the right to hear cases related to tariffs", while California countered that "IEEPA does not provide for tariffs, we are discussing Trump's illegal taxation, which has nothing to do with tariffs, and should not be transferred to the International Trade Court".
Therefore, whether the jurisdiction is transferred to the International Trade Court specifically set up for tariff cases itself constitutes a precedent for the judicial system's understanding of whether IEEPA has the power to stipulate tariffs, and both sides naturally refuse to give in. Different lower court judges are naturally hedging - in the EMILY LEY PAPER INC v. TRUMP case, the judge ruled that it should be transferred; while in the LEARNING RESOURCES, INC. v. TRUMP case, the judge ruled that it should not be transferred and directly ruled the tariff measures illegal.
Since multiple lower court judges who are not even affiliated at the appellate court level have completely contradictory views on their respective cases, the case must be taken to the Supreme Court to be resolved. In the composition of Supreme Court justices, one-third were nominated by Trump, one-third by Obama and Biden, and one-third by Bush Sr. and Bush Jr.
For such a major policy, in the previous case challenging President Biden's student loan relief (143 S. Ct. 2355), the justices established a principle on June 30, 2023, with a 6:3 vote (Roberts, Thomas, and Alito nominated by Bush Sr. and Jr., and Gorsuch, Kavanaugh, and Barrett nominated by Trump voted in favor, while Kagan, Sotomayor, and Jackson nominated by Obama and Biden voted against) - specific congressional legislation (Heroes Act) authorized the Secretary of Education to forgive or modify provisions related to student financial assistance, but not to the extent of forgiving $430 billion in student loan principal.
This brings a boomerang and poses a great challenge to the Supreme Court justices. Looking now, the three justices nominated by Bush Sr. and Jr. are the biggest variable - from their stance, they neither want the Democratic Party to grow too powerful (which conflicts with their ideological beliefs) nor want Trump to grow too powerful (which conflicts with their personal interests).
It seems that this tariff matter will drag on for at least another six months to a year.
