IBTBlog

The International Business Transactions Blog

Trump Administration ICC Sanctions Face Setbacks

By Kailea Weitz
ASU Law Fellow

The predicate for the Trump Administration’s 2025 ICC sanctions is stated in Executive Order 14203: a view that the ICC’s “illegitimate and baseless actions” against the United States and Israel threaten U.S. sovereignty and undermine critical national security and foreign policy interests, setting a dangerous precedent, and endangering U.S. military personnel. The Administration’s objection, however, is not to ICC prosecution of U.S. personnel, but to the Court’s assertion of jurisdiction, preliminary investigations into U.S. personnel in Afghanistan, and arrest warrants targeting Israeli leadership. Neither the U.S. nor Israel is party to the Rome Statute recognizing ICC jurisdiction and EO 14203 reflects the longstanding U.S. position, enshrined in the American Servicemembers’ Protection Act of 2002 (ASPA), that U.S. and allied war criminals should be immune to facing justice before the ICC.

EO 14203 declares any effort to “investigate, arrest, detain, or prosecute” a “protected person” constitutes “unusual and extraordinary threat” to U.S. national security and foreign policy. It imposes sweeping sanctions, blocking all property and interests in property within U.S. jurisdiction of designated persons; prohibiting transfers, payments, exports, withdrawals, or other dealings in that property; prohibiting providing or receiving funds, goods, or services to or from designated persons; and suspending entry into the U.S., including family members.

Invoking the International Emergency Economic Powers Act (IEEPA), implementing regulations place designees on OFAC’s Specially Designated Nationals and Blocked Persons (SDN) List. That designation prohibits U.S. persons from dealing, even indirectly, with SDNs or entities at least 50% SDN-owned, and exposes non-U.S. persons to sanctions for materially supporting SDNs or causing violations by U.S. persons. There are currently 13 ICC-related SDNs, including ICC judges and prosecutors designated in August 2025: Kimberly Prost, Nicolas Yann Guillou, Nazhat Shameem Khan, and Mame Mandiaye Niang. The AIPAC-backed Illegitimate Court Counteraction Act (H.R. 23) advances a similar legislative framework, imposing asset freezes and visa bans against persons aiding ICC efforts against Americans or Israelis. However, some of the sanctioned individuals had no role in investigating or prosecuting U.S. or Israeli personnel.

UN experts reacted swiftly and critically, describing the sanctions as a “direct assault against the independence of the tribunal and a devastating blow to victims worldwide”. They argued ICC judges, prosecutors, and lawyers must be free from intimidation and economic coercion to perform their duties and urged the EU and European Commission to shield ICC officials through the EU Blocking Statute.

Meanwhile, the ICC sanctions, as interpreted by OFAC, have been found likely to violate the First Amendment to the Constitution. Those arguments draw support from IEEPA itself, which excludes, with limited exceptions, the import or export of “information or informational materials” from its regulatory authority. In Smith v. Trump, the ACLU describes the sanctions as forcing U.S. advocates to stop providing legal analysis, evidence, and policy expertise to the ICC. A July 18, 2025, preliminary injunction found a likely First Amendment violation. In Rona & Davis v. Trump, enforcement was permanently enjoined against a wide range of advocacy, analytical, educational, training, and advisory activity tied to the ICC. OFAC’s 2024 GPE letter similarly recognized that merely hosting SDN-listed speakers for political dialogue was not prohibited, underscoring limits on sanctions where speech and information exchange are concerned. Nonetheless, the OFAC threat to First Amendment activities continues, because OFAC has not amended its regulations or issued public guidance clarifying that First Amendment activities do not fall within the sanctions. This recalcitrance foreshadows likely further defeats by OFAC in the courts.

Trump Seeks Alternatives After Supreme Court Tariff Ruling

By Kailea Weitz
ASU Law Fellow

The Supreme Court’s February 2026 ruling was not the end of Trump-era tariffs. It held only that IEEPA could not support the President’s “reciprocal” and “fentanyl” tariffs. Express tariff authorities remained undisturbed, including the Trade Act of 1974 Sections 122, 201, and 301, the Trade Expansion Act of 1962 Section 232, and the Tariff Act of 1930 Sections 337 and 338, with many being explored by the Administration. Several require investigations and findings to

impose. Section 232 addresses imports threatening national security; Section 337 targets unfairly competitive import methods injuring “domestic industries”, typically in intellectual property disputes; and Section 301 retaliatory authority provides imposing authority to retaliate against “unreasonable” and “unjustifiable” policies and measures that burden U.S. commerce.

President Trump’s response was immediate. On the day of the ruling, the White House issued an order terminating ad valorem duties imposed under IEEPA, but he expressly preserved those imposed under Sections 232 and 301 and imposing a 10% ad valorem tariff for 150 days under Sec 122. Plans for several 337 and 301 investigations were announced, and existing 232 and 301 tariffs on China, among others, including on steel (50%), aluminum (50%), semiconductors (25%), timber/lumber (10%), vehicles (25%), and copper (50%), remain in place.

It is not surprising that the Administration, having lost one authority for import duties, immediately pivoted to the others identified by the Court, a decision already triggering new litigation. Two dozen states have filed suit challenging Trump’s use of Sec 122, arguing no statute requirements are met. Both Democratic representatives (H.R.2459) and senators have introduced the “Reclaim Trade Powers Act” to repeal Sec 122, along with a bill to shield small businesses from Trump’s tariffs more broadly (S.1593/H.R.3986).

Meanwhile, the refund consequences of the Supreme Court’s IEEPA ruling are substantial. On March 4, 2026, Judge Richard Eaton of the U.S. Court of International Trade ordered CBP to liquidate or reliquidate entries without regard to IEEPA duties. As the judge assigned to IEEPA refund cases, his statement that “all importers of record whose entries were subject to IEEPA duties are entitled” to seek refunds is significant. CBP will reportedly use an online portal for claims. Senate Democratic Leader Schumer is urging companies to pass anticipated savings onto consumers when approximately $175 billion in refunds is received. Consumer class actions involving Costco, FedEx, and Ray-Ban have already been filed. As more than 2,000 companies file lawsuits to recoup tariff payments, more  consumer suits seeking to prevent “double recovery” will surely follow, particularly against companies that imposed itemized tariff charges.

However, one small business has publicly been advocating for a different approach by proactively and automatically refunding customers. For consumers, importers, states, and trade lawyers, the next litigation relates to which import duties adopted under other statutes will survive judicial review, and how quickly unlawfully collected duties can (and will) be refunded. Given the Republicans inactivity in Congress, it appears that Republicans wish to surrender their importation taxation authority to Trump. If their appetite for doing the same for a Democrat President is less certain, they do not appear to believe they will be bound by their own precedents.

Supreme Court: IEEPA Does Not Authorize Import Duties

By Kailea Weitz
ASU Law Fellow

In February 2026, the U.S. Supreme Court held in the combined cases Learning Resources, Inc. v. Trump and Trump v. V.O.S. Selections, Inc., that the International Emergency Economic Powers Act (IEEPA) does not authorize the President to impose import duties, invalidating President Trump’s 2025 “fentanyl” and “reciprocal” tariffs. Those measures previously included a 25% duty on most Canadian and Mexican imports, a 10% duty on most Chinese imports, and baseline 10% duties on imports from all trading partners, with higher rates on dozens of countries. The tariffs were repeatedly increased, decreased, and otherwise arbitrarily modified by Trump, allegedly justified to punish states for drug trafficking and persistent trade deficits.

Before the Court, the Trump Administration argued IEEPA’s power to “regulate … importation” included tariffs because tariffs have long been used to regulate imports. The government’s merits brief contended that the phrase encompasses duties and that IEEPA continued to provide independent authority for nearly unfettered presidential discretion, despite Congress’s enactment of more specific tariff statutes, including Section 122 of the Trade Act of 1974.

The government brief also pointed to IEEPA’s legislative history as emerging from the Trading with the Enemy Act (TWEA), which authorized presidential regulation of foreign goods during wartime, and argued that IEEPA extended similar authority into presidentially declared national emergencies during peacetime. On that view, the President could deploy tariffs as an “emergency” response tool without being confined to the narrower conditions and limits of other tariff laws.

The Court rejected each argument before it. It held that IEEPA does not generally authorize the President to impose tariffs. The Court emphasized that Article I gives Congress, not the President, the power to lay duties and that no President had ever invoked IEEPA to impose any import duties despite regularly invoking IEEPA for other purposes and invoking other statutes to impose tariffs. It reasoned that if Congress had intended to delegate the “distinct and extraordinary power” to impose tariffs, it would have done so expressly, as it has in other tariff statutes. The Court noted that the Trump Administration’s position would empower the President to impose duties on “imports from any country, of any product, at any rate, for any amount of time” from “two words separated by 16 others” in IEEPA: “regulate” and “importation”.

While the ruling therefore narrowed one asserted source of presidential tariff authority, broader statutory tariff framework remains undisturbed. The Court itself pointed to other laws expressly delegating tariff powers, including Sections 122, 201, and 301 of the Trade Act of 1974. Thus, the decision is best conceptualized as a separation-of-powers holding: it foreclosed an overbroad reading of a general emergency statute without touching tariff tools Congress clearly delegated.

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IBT-Related Organizations

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ASIL Anti-Corruption Law Interest Group
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