In the wake of the Supreme Court’s decision in Learning Resources, Inc. v. Trump, which held that IEEPA does not authorize the President to impose tariffs in the event of a national emergency, the Trump administration immediately sought to implement across-the-board 10% tariffs under a different statute, known as “section 122 tariffs.”

On Thursday, March 5, twenty-two states (as well as the Democratic governors of Kentucky and Pennsylvania) filed a lawsuit, Oregon v. Trump, in the Court of International Trade challenging the lawfulness of the President’s recent tariff actions.¹ On Monday, March 9, two private plaintiffs—Burlap & Barrel, Inc., and Basic Fun, Inc.—filed a similar lawsuit in the CIT.²

In this post, I offer some context for what may happen next in those cases. Additionally, while the Court’s holding in Learning Resources answered a different question than what will be presented in the section 122 cases, I offer a few thoughts on how the opinions in Learning Resources might shape the litigation the current cases. 

The Road Ahead for the Section 122 Challengers

While the justices in Learning Resources differed sharply in their views of whether IEEPA authorized the President to unilaterally impose tariffs (and, among those who took the view that it does not, why it does not do so), there was one point that was unanimous—the only court with jurisdiction to hear the case was the CIT.³ In view of that holding, it is no surprise that both Oregon v. Trump and Burlap & Barrel, Inc v. Trump were filed in the CIT. 

Where cases in the CIT raise issues related to the constitutionality of a law or executive action or simply “has broad or significant implications in the administration or interpretation of the customs laws,” the case is heard by a three-judge panel. As with the IEEPA cases, both Oregon and Burlap & Barrel were assigned the same three-judge panel.⁴ If the section 122 litigation were to proceed at the same speed as the IEEPA litigation did, we might expect oral arguments in mid-April, with a decision around the beginning of May.⁵

The Statutory Question

One question perhaps worth asking in the wake of the Supreme Court’s decision in Learning Resources is why Chief Justice Roberts addressed the major questions doctrine in his opinion. After all, that part of the opinion was only joined by two other justices and therefore does not constitute the opinion of the Court. The answer to this question may prove consequential for the forthcoming litigation in Oregon and Burlap & Barrel.

One possible answer is that Chief Justice Roberts believed—contra Justices Sotomayor, Kagan, and Jackson—that the statutory arguments alone were insufficient to rule against the President. However, such a view sits uneasily with the rest of the opinion, where Roberts writes that “[w]hen Congress grants the power to impose tariffs, it does so clearly and with careful constraints. It did neither here.”⁶ It is difficult to see any logical need for the major questions doctrine to do any additional work to get to the central holding that “IEEPA does not authorize the President to impose tariffs.”⁷

This is not to suggest, of course, that Chief Justice Roberts does not believe that the major questions doctrine adds additional support to the Court’s decision. But if a majority of the Court could resolve the question presented without resorting to the major questions doctrine, why include that doctrine at all, particularly when the major questions doctrine analysis did not command a majority of the Court? 

As other commentators have indicated, perhaps one of the reasons is that Chief Justice Roberts wanted to demonstrate that the major questions doctrine is a politically neutral tool.⁸ In other words, the Court is willing to deploy it not just to strike down actions of Democratic Presidents, but Republican Presidents too. Thus, while Chief Justice Roberts perhaps recognized that the major questions doctrine discussion was not legally necessary to answer the question presented, it was institutionally prudent to include it nevertheless.

For the challengers in Oregon and Burlap & Barrel, however, Chief Justice Roberts’ inclusion of the major questions doctrine may prove significant. After all, in the words of Chief Justice Roberts, “[w]hen Congress has delegated its tariff powers, it has done so in explicit terms, and subject to strict limits.”⁹ One such delegation of Congress’s tariff powers is in section 122. By implication, courts should not only be skeptical of efforts by the President to “replace the longstanding executive-legislative collaboration over trade policy with unchecked Presidential policymaking,” but they should carefully review the “strict limits” Congress placed on delegations of the tariff power to ensure that the executive is acting within the bounds of those limits.¹⁰

The Application to Section 122 Tariffs

Section 122 tariffs are, in one sense, the inverse of the IEEPA tariffs. IEEPA makes no mention of any tariff authority in the statutory text, but unlocking the powers IEEPA grants the President takes little more than an emergency declaration. By contrast, section 122 of the Trade Act of 1974 very clearly grants explicit tariff authority, as it requires the President to proclaim “a temporary import surcharge, not to exceed 15 percent ad valorem, in the form of duties . . . .” But unlocking that tariff authority is—in contrast to IEEPA—conditioned on strict statutory requirements. 

Section 122 by its terms addresses “large and serious balance-of-payments deficits,”¹¹ but it does not offer clarity in how such a deficit is determined. The statutory text also suggests that a balance-of-payments deficit is conceptually distinct from a balance-of-trade deficit.¹² This much was conceded by the government’s own lawyers during the IEEPA litigation: “Nor does [section 122] have any obvious application here, where the concerns the President identified in declaring an emergency arise from trade deficits, which are conceptually distinct from balance-of-payments deficits.”¹³

Since section 122 tariffs have never been implemented before this year, no court has had occasion to define what the term “balance-of-payments deficit” means. Nevertheless, economists typically understand a balance-of-payments framework to include not just the imports and exports of goods, but all payments made between U.S. residents and foreign residents.¹⁴ Thus, the inflows on account of inbound foreign investment and U.S. services exports have, in recent years, largely offset the outflows relating to the persistent U.S. trade deficit. Given that a measurement of the U.S. balance of payments reflects all of these cross-border flows, it is little surprise that many economists have argued that the statutory prerequisites for the section 122 tariffs are not satisfied.¹⁵

For IEEPA, the Court held that the statutory text did not include an authorization to impose tariffs. In doing so, it took for itself the power to decide whether or not the statute’s meaning included a delegation of the taxing power. For section 122, the question ultimately may be whether courts have the same power to decide whether factual predicates for a statute have been met. Here, again, the major questions doctrine could be useful to the challengers. In the words of Justice Gorsuch:

The major questions doctrine performs a similar function. Article I vests all federal legislative power in Congress. But like any written instrument, federal legislation cannot anticipate every eventuality, a point my concurring colleagues have observed in the past. And highly resourceful members of the executive branch have strong incentives to exploit any doubt in Congress’s past work to assume new power for themselves. Our founders understood that men are not angels, and we disregard that insight at our peril when we allow the few (or the one) to aggrandize their power based on loose or uncertain authority.¹⁶

Once again, the “highly resourceful members of the executive branch” have conjured a set of facts that sit awkwardly (at best) within the statutory regime set forth by Congress. Once again, they have done so to implement a tariff policy without resorting to Congress—the only branch that has the constitutional authority to lay and collect taxes. 

It is too early to say whether the challengers to these tariffs will be successful. After all, the analysis partly hinges on a question of who has the authority to determine whether the factual predicates have been met here. Unlike questions that are purely legal in nature (e.g., interpreting what the meaning of “regulate . . . importation” is), which have long been the province of the judiciary, questions that are factual in nature (e.g., “is there a balance-of-payments deficit?”) are questions where some degree of deference to the executive branch may be appropriate.¹⁷

Nonetheless, even though the legal contours of the section 122 litigation are different in material respects from the IEEPA litigation, the underlying backdrop is not. The fundamental issue in both cases arises from a President who campaigned on significant increases in tariff rates. But in our constitutional system, it is Congress—not the President—that exclusively possesses the taxing power. Absent congressional action, then, the President is left attempting to shoehorn his preferred tariff policy into statutes ill-suited for the sweeping changes in trade policy desired by this administration. In light of that, the closing words of Justice Gorsuch’s concurrence in Learning Resources remain relevant here as well:

[M]ost major decisions affecting the rights and responsibilities of the American people (including the duty to pay taxes and tariffs) are funneled through the legislative process for a reason. Yes, legislating can be hard and take time. And, yes, it can be tempting to bypass Congress when some pressing problem arises. But the deliberative nature of the legislative process was the whole point of its design. Through that process, the Nation can tap the combined wisdom of the people’s elected representatives, not just that of one faction or man. There, deliberation tempers impulse, and compromise hammers disagreements into workable solutions. And because laws must earn such broad support to survive the legislative process, they tend to endure, allowing ordinary people to plan their lives in ways they cannot when the rules shift from day to day. In all, the legislative process helps ensure each of us has a stake in the laws that govern us and in the Nation’s future.¹⁸

1. Complaint, State of Oregon v. Trump, No. 26-01472 (Ct. Int’l Trade Mar. 5, 2026).  ↩︎
2. Complaint, Burlap & Barrel, Inc. v. Trump, No. 26-01606 (Ct. Int’l Trade Mar. 9, 2026).  ↩︎
3. See Learning Res., Inc. v. Trump, No. 24-1287, slip op. at 5 n.1 (U.S. Feb. 20, 2026); id. at 61 n.25 (Kavanaugh, J., dissenting). Ironically, this means that Learning Resources, Inc., the named petitioner, ended up having its case dismissed. Its case had been consolidated with the appeal from the Federal Circuit, and it was those respondents—V.O.S. Selections, Inc., together with four other plaintiffs, and the state challengers—who ended up winning the case. ↩︎
4. The three-judge panel consists of Chief Judge Mark A. Barnett, Judge Claire R. Kelly, and Senior Judge Timothy C. Stanceu. ↩︎
5. If the Federal Circuit were to mirror its pace in this litigation, this timeline would put oral arguments around the beginning of July and a decision at the end of July. That said, because the 150-day period during which section 122 tariffs can be imposed expires in mid-July, this timeline may slow down considerably, since the outcome would presumably no longer be offering prospective relief once the section 122 tariffs have expired. ↩︎
6. Learning Res., slip op. at 17. ↩︎
7. Id. at 20. ↩︎
8. See, e.g., Sarah Isgur & David French, The Supreme Court’s Tariff Decision, Advisory Opinions, The Dispatch (Feb. 20, 2026). ↩︎
9. Learning Res., slip op. at 8 (Roberts, C.J.). ↩︎
10. Id. at 10. ↩︎
11. 19 U.S.C. § 2132(a)(1). Note that there are two other triggers for section 122 tariffs, but the proclamation implementing the section 122 tariffs relies on a purported balance-of-payments deficit as the trigger for the tariffs. See Proclamation No. 11012, 91 Fed. Reg. 9339, 9340–41 (Feb. 20, 2026). ↩︎
12. Compare 19 U.S.C. § 2132(a)(1) (“large and serious United States balance-of-payments deficits”) with 19 U.S.C. § 2132(c)(1) (“large and persistent United States balance-of-trade surpluses”). ↩︎
13. Reply Brief for Appellants at 13, V.O.S. Selections, Inc. v. Trump, No. 25-1812 (Fed. Cir. 2025). ↩︎
14. See Balance of Payments, Bureau of Economic Analysis (last visited Mar. 11, 2026). ↩︎
15. See, e.g., Joseph Brusuelas, Are the New Tariffs Justified Under Section 122? No., The Real Economy Blog (Feb. 23, 2026). This view, of course, is not shared by the (unnamed) economists and advisors cited in President Trump’s proclamation implementing the section 122 tariffs. Proclamation No. 11012, 91 Fed. Reg. 9339 (Feb. 20, 2026). ↩︎
16. Learning Res., Inc. v. Trump, No. 24-1287, slip op. at 16 (U.S. Feb. 20, 2026) (Gorsuch, J., concurring). ↩︎
17. See Peter E. Harrell, Are Trump’s “Fallback” Tariffs Legal?, Lawfare (Feb. 25, 2026) (providing an argument that the section 122 tariffs may be more difficult to challenge legally). ↩︎
18. Learning Res., slip op. at 46 (Gorsuch, J., concurring). ↩︎