Importers Attempt to Keep IEEPA Case in Florida Court, Claim IEEPA Doesn't Include Tariff Authority

The case was brought by the New Civil Liberties Alliance (NCLA), a conservative legal advocacy group, initially only on behalf of Simplified in the U.S. District Court for the Northern District of Florida (see 2504150022). Concurrent with its opposition to the government's motion to transfer, though, the NCLA added four more importers to the case as plaintiffs: Kilo Brava, Bambola, Kim's Clothes and Fashion and Rokland.

The U.S. moved to transfer the case to the trade court on the grounds that, under Section 1581(i), CIT has exclusive jurisdiction to hear the case (see 2504150022). The statute says only CIT can hear cases that arise out of laws providing for tariffs.

In response, the NCLA said IEEPA doesn't provide for tariffs, stripping CIT of its exclusive jurisdiction in this matter, based on the law's text, context and historical understanding. The law itself makes no mention of tariffs, and statutory silence "cannot be construed as a delegation of authority," the brief said.

The government has argued in IEEPA cases across the country that the law does provide for tariffs, since it allows the president to "regulate" imports. The NCLA said in response that the common definition of the word "regulate," which is to "fix, establish, or control," doesn't "encompass imposing a tax or a tariff."

The brief said this understanding of the term "regulate" is buttressed by the Constitution, which has two provisions of note: one giving Congress the power to impose taxes and duties and another allowing Congress to "regulate" commerce with foreign nations. The NCLA said it would also "vastly expand agency power if, every time Congress granted an agency the power to 'regulate,' the Courts interpreted that grant as including the power to tax."

The brief said IEEPA's "statutory silence is powerful for the additional reason that tariffs have the highest constitutional importance," since control over tariffs, taxes and foreign commerce "are core legislative powers specifically enumerated in the Constitution." The government's theory that Congress gave the president broad powers over these functions by "tucking the cryptic 'regulate' into a list of activities contained in sanctions" law "flunks the most basic test for reading a statute, the brief said.

The NCLA additionally said IEEPA's silence on tariffs contrasts with the many other laws that specifically convey tariffs. Specifically, the advocacy group noted that when other tariff laws were passed, Congress amended trade agreements to harmonize them with the changes -- a development that didn't happen in the case of IEEPA.

To show that IEEPA doesn't convey the power to impose tariffs, the NCLA also sought to distinguish its case from Yoshida International v. U.S., which upheld President Richard Nixon's 10% duty surcharge imposed under the Trading With the Enemy Act, IEEPA's predecessor. The brief said Yoshida isn't controlling and also flies in the face of key Supreme Court precedent that emerged since the case was decided.

In Yoshida, the court said the word "regulate" can include imposing duties, thus construing statutory silence as a grant of authority, the NCLA said. The advocacy group dubbed this approach "obsolete and discretided." Today, this same conclusion would be found to violate "governing interpretive principles and clear Supreme Court precedent," including the holding in Loper Bright that "silence, gap, or ambiguity in a statute can no longer be construed to grant affirmative authority from Congress." Yoshida also "collides head-on" with the "major questions doctrine’s requirement that the executive branch must identify a clear statutory statement to justify an assertion of power."