- Two federal appeals courts are sending clear signals they wish to resolve the uncertainty over President Trump’s IEEPA tariffs as quickly as possible, we think.
- The Federal Circuit Court of Appeals will likely hear oral arguments in one case en banc, which is a sign that they want a speedy ruling, with minimum chances of a successful appeal to the Supreme Court.
- The District of Columbia Circuit has named a three-judge panel consisting entirely of Trump appointments to hear another case. The odds against such a panel being appointed by a purely random selection are 99.4%. Trump can’t blame a defeat on “activist judges.” If Trump can’t win with this panel, we believe, his odds of prevailing at the Supreme Court are slim.
Two federal courts have ruled that President Trump’s IEEPA tariffs are unlawful and unconstitutional. Trump has appealed these rulings, but what are his chances of getting them reversed?
Trump has a chance of prevailing in the end, we believe, but he starts in the hole, at 0-2, and one of the rulings that went against him was a 3-0 decision on May 28 by the Court of International Trade (CIT), which is the federal judiciary’s specialist court on trade matters.
For more details, please see our July 18 note, “What if the Courts Strike Down Trump’s IEEPA Tariffs?”, and the July 16 “Capital Alpha Trade Primer 3.1.” (available by request via inquiries@capalphadc.com).
The panel which handed down a unanimous decision against Trump was an eclectic one, with judges appointed by Presidents Ronald Reagan, Barack Obama, and Trump himself. The panel vacated the IEEPA tariffs that Trump had ordered to date, and issued a permanent injunction against such tariffs in the future.
Will Tariffs Stay or Will They Go?
The Federal Circuit Court of Appeals stayed the CIT ruling while it hears an appeal. V.O.S. Selections, Inc. v. Trump, Docket No. 25-01812 (Fed. Cir. May 28, 2025). Trump has since announced more than two dozen trade agreements based on the IEEPA tariffs. Trump has also told foreign governments that the stay is a sign that the court will rule in his favor, so that they should treat them as permanent.
But the Federal Circuit may be telling us something else. Oral arguments on the appeal are scheduled for July 31. But in an unusual move, we expect the court to hear oral arguments en banc, which means that all 11 active judges in the court will participate.
En banc hearings are normally reserved for an appeal from a three-judge panel. By hearing the case for the first time en banc, the court is sending a message that it wishes to make a decisive ruling which reflects the views of the entire court as quickly as possible.
Eight of the judges on the Federal Circuit were appointed by Democratic presidents, three were appointed by Republicans, and none were appointed by Trump. The president has his work cut out for him here.
A strong majority ruling from the Federal Circuit would have two implications. One would be that barring some other court decision that would result in a circuit split, the odds of a successful appeal to the Supreme Court would be low.
Another implication would be that if the Federal Circuit upholds the CIT decision enjoining the tariffs, the odds of Trump getting another stay to keep the tariffs in place would also be low – perhaps as low as they could possibly be.
In order to grant the stay, the Supreme Court would have to assess reasonably high chances that it would reverse the Federal Circuit, which would be unlikely if the Federal Circuit rules with a strong en banc majority.
Given the urgency of the case – IEEPA tariffs will be accumulating at about $25 billion per month starting August 1 – and the pressure that the Trump administration is likely to put on the Supreme Court for a favorable ruling, there is another way to look at this situation. That is, the Federal Circuit is doing what it can do to ensure that the Supreme Court need not take up the case; in other words, they are clearing a way for the Supreme Court to take a pass.
The Odds are 99.4% Against
Something even more unusual is happening at the D.C. Circuit Court of Appeals. The court has selected a three judge panel consisting entirely of Trump appointments to hear Trump’s appeal of a May 29 decision from the District of Columbia District Court. Learning Res., Inc. v. Trump, No. 25-5202, 2025 BL 198491 (D.C. Cir. June 05, 2025). This ruling, like the CIT decision, found the IEEPA tariffs to be unlawful and unconstitutional. It also denied a Trump administration motion to transfer the case to the CIT, where Trump had hitherto hoped for a more favorable ruling.
There are 11 active judges on the D.C. Circuit Court of Appeals. Only three of them were appointed by Trump. We can apply the basic rules of probability to calculate the odds of the court randomly assigning a panel of all three Trump appointees. The odds would be 3/11, times 2/10, times 1/9, equaling 1/165, or 0.6%, which is a vanishingly small probability. We could also state the converse, and say the odds are 99.4% that such a panel would never be appointed.
As a general rule, the panels in federal courts are assigned randomly, but this is not always the case. There was, for instance, the notorious case of the same panel in the Fourth Circuit Court of Appeals hearing challenges to the Mountain Valley Pipeline six times in a row.
The courts do not explain how panels were selected. But from the panel selected to hear Trump’s appeal in the D.C. Circuit, we can make one of two inferences, in our opinion. Either the panel selection was a truly random event, despite the overwhelming odds against it, or the D.C. Circuit is subtly signaling to Trump that if he cannot win with a panel of three judges he appointed, then he might as well abandon all further appeals. Trump cannot blame activist judges appointed by prior Democratic presidents for the decision.
Oral arguments in the D.C. Circuit are set for September 30. The D.C. Circuit could rule in Trump’s favor at the end of the day. But oral arguments in the D.C. Circuit, like those in the Federal Circuit, will be a high-stakes affair.
