Pacific Legal Foundation Has Had 'Preliminary' Talks on Joining With Other Cases Challenging IEEPA Duties
The Pacific Legal Foundation, the libertarian legal advocacy group that recently brought a case against the legality of tariffs imposed under the International Emergency Economic Powers Act on behalf of 11 importers, has had "preliminary" talks with the other advocacy groups that have brought cases challenging the tariffs on whether to proceed with separate cases. Molly Nixon, attorney at the foundation, told us she's "in touch" with the two other groups who have brought cases against the tariffs, the New Civil Liberties Alliance and the Liberty Justice Center, but that nothing is confirmed about whether the groups will combine cases.
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The foundation brought its case last week to contest President Donald Trump's "reciprocal" tariffs and IEEPA duties on China, arguing that IEEPA doesn't authorize tariffs, Trump's declared national emergencies fail to meet the "statutory requirement of an 'unusual and extraordinary threat'" and IEEPA unconstitutionally transfers legislative power to the president (see 2504250038).
The Liberty Justice Center also opened a case at the trade court against the use of the tariffs (see 2504140061), while the New Civil Liberties Alliance filed a complaint in the District Court for the Northern District of Florida (see 2504040036). However, the U.S. recently filed a motion to transfer the NCLA's case to the trade court.
In the Liberty Justice Center's action, CIT assigned Judges Jane Restani, Gary Katzmann and Timothy Reif to hear the dispute -- the same three judges assigned to hear another case against the IEEPA tariffs brought by 12 U.S. states. Nixon said that if all three of the disputes brought by the conservative-leaning advocacy groups were assigned to the same three-judge panel, it "could certainly have an impact on discussions on how to coordinate going forward, but it’s still early in each case."
Jeffrey Schwab, senior counsel at the Liberty Justice Center, told us that he's "talked about the cases" with the Pacific Legal Foundation and NCLA, though he echoed Nixon's sentiment that no resolution has been reached on whether to consolidate the lawsuits. Schwab emphasized that the "important thing" is that a court quickly impose a preliminary injunction against the tariffs. "Our focus right now is just getting the court to hear" the motion for a preliminary injunction, he said.
Attorneys for the NCLA didn't immediately respond to request for comment.
Nixon emphasized that there are different claims raised in each case, though all of them seemingly share two claims: that Trump's use of IEEPA exceeded the authority granted to him by the statute and that, if this authority is in fact allowed, it's an unconstitutional delegation of power by Congress to the president. Nixon also stressed that each of the companies and states challenging the tariffs have different interests, making consolidation of the cases a potentially dubious prospect.
Schwab echoed this point, noting that the NCLA's case only challenges the IEEPA tariffs imposed on China, while Schwab's case is challenging the reciprocal tariffs. "Those cases don't technically overlap other than on some of the legal arguments," he said, adding that there are some differences between his claims and those brought by the Pacific Legal Foundation as well.
The foundation's lawsuit was brought under its "separation of powers" practice group, which initially came up with its theory of the case, then identified companies on whose behalf they could file suit. Nixon said the foundation found the 11 companies on whose behalf they are challenging the duties, since "a lot of them had spoken out online or had been quoted in newspapers and op eds explaining how much of the tariffs were hurting their businesses." Nixon said the foundation is currently considering whether to file a preliminary injunction motion, though she noted that the complaint is seeking a refund for tariffs paid by the 11 importers.
On the substance of the dispute, Nixon said IEEPA doesn't convey the power to impose tariffs, since the law only permits the president to "regulate" imports. She said "it’s hard to imagine a law that provided for regulating the timing and amount of tariffs without using the word" tariff or duty. Citing an early Supreme Court case, Gibbons v. Ogden, which recognized a distinction between regulating commerce and imposing tariffs, "I would not construe an authorization to 'regulate' to also include the power to impose tariffs, absent a very clear textual indication otherwise," Nixon said.