January 9, 2026

Volume 6

Issue 1

ICAS Trade ‘n Tech Dispatch (online ISSN 2837-3863, print ISSN 2837-3855) is published about every two weeks throughout the year at 1919 M St NW, Suite 310, Washington, DC 20036.
The online version of ICAS Trade ‘n Tech Dispatch can be found at chinaus-icas.org/icas-trade-technology-program/tnt-dispatch/.

TnT Spotlight

"Trump’s Emergency Powers-Based Reciprocal Tariffs and U.S. Supreme Court Challenge" by Senior Fellow Sourabh Gupta

Any week now, even any day, the U.S. Supreme Court will rule on the constitutionality of President Trump’s ‘reciprocal’ tariffs. The issue at hand is the president’s authority to levy tariffs of potentially unbounded scope based on his emergency authority to address a threat to the United States’ economic and national security during peacetime. If confirmed, the ruling would confer sweeping powers to the President over the U.S. economy via the tariff lever. If overruled, the President will have to withdraw his emergency (International Emergency Economic Powers Act – IEEPA) authority-based tariffs and scramble to find other delegated statutory authorities to impose equivalent tariffs or measures.

What's Been Happening

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Selective Decoupling Continues Amid U.S.-China Trade & Tech. Détente

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In One Sentence

  • The FY2026 NDAA was signed into law on December 18, 2025 and includes the Comprehensive Outbound Investment National Security Act of 2025, or the COINS Act, which creates a statutory outbound investment control requiring U.S. persons to notify or avoid certain financial transactions with “covered foreign persons” in countries and regions of concern involving advanced or sensitive technologies.
  • The BIOSECURE Act became law as part of the FY2026 National Defense Authorization Act, which would block Chinese biopharma companies and their U.S. partners from accessing federal contracts, grants or loans. 
  • On December 18, TikTok CEO Shou Zi Chew announced that the company had signed an agreement to divest its U.S. entity into a joint venture controlled by a consortium of American investors, ending years of uncertainty about the company’s operations in the U.S. 
  • On December 23, the Office of the U.S. Trade Representative released findings of a year-long Section 301 investigation of China’s semiconductor sector, accusing Beijing of employing “unreasonable and discriminatory” practices but delayed any additional tariffs for the time being. 
  • On December 31, The Trump administration postponed planned tariff hikes on upholstered furniture, kitchen cabinets and vanities to Jan 1, 2027, while keeping existing 25% duties in place.
  • President Trump on January 2 ordered U.S.-registered company HieFo to divest its $2.9 million acquisition of Emcore’s chip assets due to national security concerns.
  • On January 5, The FCC banned new imports of foreign-made drones and components from the U.S. market after a mandated review found they pose unacceptable national security risks.
  • China has bought about 600,000 tons of U.S. soybeans for the week of January 5 as part of its post-Busan truce purchasing push, bringing its total U.S. crop purchases to circa 8.5-10 million tons, and is steadily fulfilling its promised amount.

 

Mark the Essentials

  • The COINS Act is a significant expansion of the Treasury Department’s Outbound Investment Security Program in terms of technologies, geographic areas, and the definition of covered foreign persons. It comes into effect no later than March 2027. It adds high-performance computing, supercomputing, and hypersonic systems to the list of covered technologies, in addition to semiconductors and microelectronics, quantum information technologies, and artificial intelligence. It extends the previous “countries of concern” from China to now include Cuba, Iran, North Korea, Russia and Venezuela under the Maduro regime. 
  • The BIOSECURE Act imposes government-wide restrictions on “biotechnology companies of concern”, with the goal of barring U.S. federal agencies from procuring equipment and services from the designated entities. In addition to listing entities that are subject to the control of China and other countries of concern, the law also targets firms on the existing Department of Defense list of “Chinese military companies” that have a sufficient biotechnology nexus.
  • The U.S. investor group Oracle, private equity firm Silver Lake, and investment firm MGX will collectively own 45% of U.S. TikTok operations, with ByteDance keeping a 19.9% stake and affiliates of existing ByteDance investors holding 30.1%. According to TikTok CEO, the newly formed entity “TikTok USDS Joint Venture LLC” would be “responsible for U.S. data protection, algorithm security, content moderation and software assurance.”
  • The Section 301 probe on China’s chip sector, which began in December 2024, alleges that China relies on “sweeping non-market policies,” and its industrial plans target “every major segment of the semiconductor supply chain,” including fabrication, design, assembly, testing, and packaging. USTR’s tariff response is set at an initial rate of 0% which is to rise in June 2027 to an yet-to-be-determined amount, which would be stacked on top of the existing 50% tariffs on Chinese semiconductors. 
  • President Trump noted that HieFo’s $3 million purchase of Emcore’s chip and wafer-fabrication assets in 2024 could threaten U.S. national security because one of HieFo’s two founders is a Chinese national.
  • The FCC’s ban adds foreign drone companies to the FCC’s “Covered List” of entities deemed to “pose an unacceptable risk to the national security of the United States”. Multiple Chinese companies such as Huawei, ZTE, China Telecom (Americas) and China Mobile International USA are already within the Covered List.

 

Keeping an Eye On…

The ongoing leaders-led détente in U.S.-China trade and technology ties notwithstanding, the structural decoupling of select advanced industries and technologies continues apace. The latest markers of this continuing drift towards selective decoupling are two key pieces of legislation, the BIOSECURE Act and the COINS Act, that were tucked into the latest defense spending bill (NDAA FY26) and signed by the president into law on December 18.

Per the BIOSECURE Act, the heads of U.S. executive agencies are to be barred from procuring biotechnology equipment and services from a “biotechnology company of concern”. This could include tools and digital components used for working with biological materials as well as a broader range of services (research, development, analysis, detection, etc.) linked to biological and genealogical materials. U.S. and other drugmakers are to be barred, too, from U.S. federal government contracts if they engage in transactions with a “biotechnology company of concern”. At this time, no specific Chinese biotech firms are listed as a “biotechnology company of concern”, unlike in the draft bill twelve months earlier which had specifically listed WuXi AppTec., WuXi Biologics, BGI, MGI and Complete Genomics. 

Going forward, a list featuring such companies of concern is to be drawn up by the Office of Management and Budget (OMB) that is to include: (a) companies placed on the Pentagon’s Section 1260H list of “Chinese military companies” with a biotechnology nexus and (b) other entities involved with biotechnology equipment and services that are subject to the control of direction of a “foreign adversary” (China, Russia, Iran, North Korea) and pose a threat to U.S. national security. With Chinese biotech firms steadily moving up the value-added ladder from generic drug-making to actively supplying pharmaceutical ingredients, being primed for biotech manufacturing, and becoming advanced drug developers in their own right, expect a number of these companies to start populating the BIOSECURE Act’s company of concern list.

Meanwhile, the COINS Act codifies the Treasury Department’s Outbound Investment Security Program (OISP) that the Biden administration had established in January 2025, to implement the president’s outbound investment screening Executive Order of August 2023. The OISP had prohibited U.S. persons from undertaking or required notification to the Treasury Department regarding certain outbound investments in China’s semiconductors and microelectronics, quantum information technologies, and AI sectors. The COINS Act adds hypersonic systems and high-performance computing and supercomputing to this list of covered technologies, as well as Cuba, Iran, North Korea, Russia and Venezuela to the list of restricted states. Just as importantly, it lowers the threshold of a “covered foreign person” to include entities that are “subject to the direction or control” of a covered foreign person. Entities that have less than 50% ownership by a Chinese entity are also covered within the law’s ambit. 

 

Finally, the COINS Act authorizes, although does not require, the Treasury Department to establish a publicly accessible database of covered parties engaged in prohibited or notifiable technologies. Looking ahead, the Treasury Department is expected to issue implementing regulations by March 2027, at which point in time the expanded provisions within the law on covered technologies, geographic scope, and entities will come into effect. 

 

The U.S.’ outbound investment screening and security rules may be a shadow of its inbound investment screening rules, famously overseen via the CFIUS mechanism, given that the outbound security rules essentially prohibit equity or debt investment in the sanctioned entities. That does not mean however that the former is any less important or lacking in bite. Unlike the case of Japan and its rising appetite for U.S.-based acquisitions in the 1980s, this time around both inbound and outbound China-linked transactions are very much under scrutiny.

Expanded Reading

On the Hill

Legislative Developments

  • A new House bill backed by Rep. Max Miller (R-OH) called the Trusted Importer and Competitive Manufacturing Act would create a “trusted importer” program allowing the president to waive or reduce certain tariffs for U.S. companies that meet supply-chain security and compliance criteria, while excluding foreign entities of concern and preserving existing trade remedy duties.
  • Reps. Brittany Pettersen (D-CO), Hillary Scholten (D-MI) and Haley Stevens (D-MI) introduced the Trump Tariff Transparency Act, which would require quarterly federal reports detailing how President Trump’s tariffs affect U.S. consumers and small businesses, arguing the policies are raising costs and harming local economies.

 

Hearings and Statements

  • The U.S. Dept. of Agriculture announced six agribusiness trade missions for 2026 to seven countries including Indonesia, Turkey, Australia, and Vietnam, saying the trips support the Trump administration’s efforts to lower trade barriers and expand market access for U.S. farmers and ranchers.
  • Rep. Raja Krishnamoorthi (D-IL) announced he will step down in January as the top Democrat on the House China Select Committee to focus on his Senate run, highlighting the committee’s bipartisan work on export controls, supply chains, and competitiveness during his tenure.

 

Expanded Reading

TnT Spotlight: Trump’s Emergency Powers-Based Reciprocal Tariffs and U.S. Supreme Court Challenge

Introduction

Any week now, even any day, the U.S. Supreme Court will rule on the constitutionality of President Trump’s ‘reciprocal’ tariffs. The issue at hand is the president’s authority to levy tariffs of potentially unbounded scope based on his emergency authority to address a threat to the United States’ economic and national security during peacetime. If confirmed, the ruling would confer sweeping powers to the President over the U.S. economy via the tariff lever. If overruled, the President will have to withdraw his emergency (International Emergency Economic Powers Act – IEEPA) authority-based tariffs and scramble to find other delegated statutory authorities to impose equivalent tariffs or measures.

President Donald Trump departs the Donald J. Trump-John F. Kennedy Center for the Performing Arts in Washington, D.C., Tuesday, January 6, 2026, en route the White House. (Official White House Photo by Daniel Torok)

Administration’s Argument Before the Court

Although potentially flawed, the administration’s argument is legally concise and internally watertight. The decades-long balance of payments deficits, which have now reached “a tipping point,” constitute an “unusual and extraordinary [foreign and security policy] threat.” This threat is not merely a trade policy matter, since the deficits have hollowed out the industrial base and has a national security dimension. In foreign policy matters, the president enjoys expansive emergency powers including tariff-imposition powers that are codified in IEEPA to address the threat after declaring a “national emergency”. Furthermore, the appropriate review authority is Congress, which can terminate the emergency. Other than validating this emergency powers-based tariff authority, the judiciary must hence stay out of the matter. 

The administration’s argument has come up short within the court system so far: 3-0 against, in the U.S. Court of International Trade in May and 7-4 against, in the Federal Appeals Court in August. But with a Supreme Court stacked with six Republican leaning justices, the administration is banking on a more favorable ruling. 

Stripped to its bare essentials, two pivotal questions that touch on constitutional law are at issue.

Does the president enjoy the authority to levy tariffs under IEEPA?

Congress, after all, is vested by Article 1 of the U.S. Constitution with the power to regulate trade with foreign nations. The administration argues that IEEPA’s predecessor law, the Trading With the Enemy Act, contained identical language on “regulating … importation” that was utilized by President Nixon to impose balance of payments-related tariffs, which were subsequently upheld by an Appeals Court (Yoshida II) in the mid-1970s. Plaintiffs argue that the president’s power to “regulate … importation” extends only so far as non-monetary measures, such as embargoes. The power to tariff, which is a form of taxing power, is distinct from the power to regulate and the former is not always incident to the latter. 

Given the Yoshida II ruling, and a Supreme Court ruling in the separate mid-1970s Algonquin case, which had found that it was the trade policy impact – not instrument – that was key to interpreting the intent of statutory text, the administration appears to have an upper hand on this point of argument.

An expected follow up of this question is that even if the President enjoys the authority to levy tariffs, does the President enjoy the authority to levy the tariffs on an emergency basis for balance-of-payments purposes? The history of the enactment of the IEEPA suggests that Congress, when writing this successor law to the Trading with the Enemy Act, had explicitly cabined the President’s authority to impose tariffs in response to balance-of-payments deficits through Section 122 of the Trade Act of 1974, a non-emergency statute that was specific, narrower, and time-limited. On the other hand, the administration argues that Section 122 does not displace the president’s emergency powers-based tariff authority and that the president could impose tariffs under both IEEPA and Section 122 authorities.

If the Supreme Court agrees with the administration’s earlier point that the president enjoys the power to impose tariffs under emergency authority, it will be hard to fault the administration’s argument that the two statutes can coexist in their own spheres.

Does the President have the authority to levy tariffs unbounded in scope, amount, and duration?

Even if he enjoys the authority on an emergency basis for balance-of-payments purposes, would this unboundedness amount to an unconstitutional delegation of legislative authority to the President? It is on this point that the administration stands on legal quicksand. Tariff power is a form of taxing power, revenue-raising power, which is part-and-parcel of the legislative domain. Unbounded tariffs without clear congressional authorization amount to a gigantic backdoor revenue-raising measure that is to be borne by Americans – importers and consumers alike. Just as importantly, the power to regulate trade with foreign nations resides constitutionally with Congress. Unbounded tariffs utilizing emergency authority overrides this prerogative as well as grants sweeping authority over the economy far beyond what Congress could have plausibly contemplated. The administration argues that the tariffs implicate the president’s foreign policy powers which are expansive, and that the tariffs are regulatory tariffs, not revenue raising taxes. Still, this distinction is irrelevant. 

Finally, the court’s acceptance of the emergency balance-of payments Nixon tariffs via Yoshida II was premised on their limits in terms of scope, amount and duration. The Trump emergency tariffs, by contrast, are open-ended.

What’s Next?

If the Supreme Court rules against the IEEPA-based tariffs, especially with three (swing) conservative justices expressing skepticism, the Trump administration will be able to recreate in short order most but not all of the tariffs using other non-emergency trade policy authorities delegated by Congress. The two primary ones being eyed are:

  • Section 122 of the Trade Act of 1974, which empowers the president to proclaim a temporary import surcharge up to 15% ad valorem for up to 150 days to “address large and serious United States balance-of-payments deficits” or other certain situations that present “fundamental international payments problems.” President Trump could impose a 15% tariff immediately that could be rolled over effectively every 150 days, even if Democrats capture Congress in the Midterm Elections in November 2026, given their equally protectionist bent.
  • Section 301 of the Trade Act of 1974, which permits the president to impose duties and other import restrictions once he finds that the country/countries at issue impose an “unreasonable charge, exaction, regulation, or limitation on U.S. products or otherwise discriminate against U.S. commerce.” President Trump could, after a perfunctory investigation, designate the bilateral trade surpluses run by these countries as the product of unfair and “unreasonable” policies and impose tariffs of any level on all or some of these trade partners. These tariffs could be “stacked” on top of the Section 122 tariffs to tailor them to individual countries. 

 

The Trump administration could apply these Section 122 and 301 tariffs retroactively too, dating back to the timings of their IEEPA-based impositions. The legal basis for retroactive imposition is unclear though. The Supreme Court disfavors it, Congress should be the party to authorize it, and neither Section 122 nor Section 301 contains clear authorization for retroactive imposition. The administration may also be tempted to apply Section 338 of the Tariff Act of 1930 (that included the infamous “Smoot-Hawley” provisions), which permits the president to impose duties of up to 50% whenever a foreign nation “places any burden or disadvantage upon the commerce of the United States.” Section 338 authority has never been utilized to impose tariffs, and its last use as a threat dates back to the 1930-1940s. In any case, Congress has twice enacted later-in-time statutes that effectively cover the same enforcement ground as Section 338.

Conclusion

Trump v. V.O.S. Selections is potentially the most important trade policy case ever on the Supreme Court’s docket. Along with the cases on birthright citizenship and the president’s right to fire independent agency heads at will (the Fed included), it is among a handful of landmark cases being heard by the Supreme Court in 2026 that will test the bounds of executive authority within the bounds of U.S. constitutional law. Its implications are momentous, from potentially shaping the boundaries of executive v. legislative power to setting down precedents for emergency actions by future presidents that could have major economy-wide effects.

 


This issue’s Spotlight was written by Sourabh Gupta, Senior Fellow at ICAS.