End of IEEPA Tariffs May Not Mean Return of de Minimis, Trade Lawyers Say
If the Supreme Court eliminates the president's ability to impose tariffs under the International Emergency Economic Powers Act, it may not mean the return of the de minimis exemption, which President Donald Trump also ended via IEEPA, trade lawyers told us.
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The issue of whether the elimination of IEEPA tariffs also includes the return of de minimis was first raised after the Court of International Trade vacated Trump's executive order imposing tariffs on China, since the trade court's order also scrapped the de minimis exemption for Chinese goods. However, the administration later issued a separate order ending de minimis for goods from entering the U.S. globally under IEEPA.
And, separately, Congress eliminated the de minimis threshold by statute in the One Big Beautiful Bill Act starting in 2027. However, if the Supreme Court removes the ability of the president to impose tariffs under IEEPA, the question then becomes whether such a ruling would include Trump's elimination of de minimis through IEEPA.
Chris Duncan, partner at Squire Patton, took the cautious approach, noting that "it all depends on the SCOTUS decision," though he added that a ruling from the high court eliminating IEEPA tariffs could invalidate the executive order eliminating de minimis as well, since it's "effectively a tariff increase, not some other kind of measure affecting trade listed in the statute."
If the de minimis threshold was restored, the administration would have the option of ending the threshold via notice-and-comment rulemaking until the One Big Beautiful Bill Act takes effect. However, Duncan said, he doesn't think CBP could "retroactively eliminate de minimis via rule making."
Other trade attorneys had a different take on the situation, speculating that IEEPA could actually be a proper statutory authority for ending the de minimis exemption. The statute specifically gives the president the power to "regulate ... importation" of property in which a foreign party has an interest.
John Peterson, partner at Neville Peterson, said ending de minimis could be a proper exercise of the power to "regulate ... importation." He added that Trump wouldn't be imposing a new tariff, unlike the various tariffs at issue in the Supreme Court cases, but rather "would just be withdrawing an exemption from them and letting the tariff rates approved by Congress take effect." Peterson said that "probably falls within the scope of 'regulating imports' which IEEPA allows."
Lawrence Friedman, partner at Barnes Richardson, noted that the issue of de minimis isn't before the high court and so it would be unlikely that "de minimis snaps back automatically if IEEPA tariffs are declared illegal unless the eventual Supreme Court decision uses surprisingly broad language." The issue of de minimis will likely be sorted through "second-level litigation" after the lead Supreme Court cases, he added.
So far, one case has been filed to contest the end of de minimis via IEEPA, though the matter is stayed pending the high court's resolution of the IEEPA tariff lawsuits (see 2507280030).