Former USTR Says 'Reasonable Chance' CIT Will Enjoin IEEPA Tariffs
Former U.S. Trade Representative Robert Lighthizer, who served in that role in President Donald Trump's first term, told an audience at the Council on Foreign Relations that he thinks "there’s a reasonable chance the [Court of International Trade (CIT)] would enjoin" tariffs levied under the International Emergency Economic Powers Act, or IEEPA. Trump used IEEPA to levy 25% tariffs on Canada and Mexico over fentanyl and migration, as well as 20% tariffs on China over fentanyl, and used it to levy 10% tariffs on countries other than those three, and an additional 125% tariffs on Chinese goods.
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Lighthizer said that IEEPA's "operative paragraph" doesn't use the word tariffs, it was "really, really written broadly."
The law says that the president, after an emergency is declared, can "investigate, block during the pendency of an investigation, regulate, direct and compel, nullify, void, prevent or prohibit, any acquisition, holding, withholding, use, transfer, withdrawal, transportation, importation or exportation of, or dealing in, or exercising any right, power, or privilege with respect to, or transactions involving, any property in which any foreign country or a national thereof has any interest by any person, or with respect to any property, subject to the jurisdiction of the United States."
However, Lighthizer also said that Congress passed IEEPA because legislators wanted to "sort all of the mess out" from when President Richard Nixon used the Trading With the Enemy Act to impose 10% tariffs on all imports.
If CIT does say tariffs are not authorized through IEEPA, it would be appealed to the U.S. Court of Appeals for the Federal Circuit, and "then ultimately the supreme court would decide."
He said "it’s clearly not a 100% thing" that the Supreme Court would bless the use of IEEPA for global tariffs.
"If you used the balance of payments provision, that would be 100%," he said, referring to Section 122 of the Trade Act of 1974, which allows a 15% tariff on all imports due to a balance of payments crisis, but that can only last for 150 days, unless Congress extends it.
"I think there’s a reasonable possibility it’s overruled," Lighthizer said April 28. "To me, it’s a very good faith argument. I believe it should be sustained."