Trump-Aligned Amicus Defends Claim That IEEPA Tariffs Can Be Upheld Under Section 338
Section 338 hasn't been implicitly repealed, and President Donald Trump's tariffs imposed under the International Emergency Economic Powers Act can also be upheld under Section 338, the Trump-aligned legal advocacy group America First Policy Institute argued in a proposed amicus reply brief at the U.S. Court of Appeals for the Federal Circuit. Responding to arguments against its position from the 12 U.S. states and five importers challenging the IEEPA tariffs and another amicus brief filed by various legal scholars and former government officials, the institute argued that the states and amicus didn't offer any support for many of their claims (V.O.S. Selections v. Donald J. Trump, Fed. Cir. # 25-1812).
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The brief came in the government's appeal of a Court of International Trade decision vacating Trump's executive orders implementing tariffs under IEEPA. Initially, the institute argued that, in addition to the government's bases for upholding the tariffs, the Federal Circuit could uphold the duties under Section 338, which lets the president impose tariffs on any country up to 50% "whenever the President shall find as a fact that any foreign country places any burden or disadvantage" on U.S. commerce (see 2506240060).
The 12 U.S. states and five importers that brought the case along with the legal scholars and former government officials were the only ones to address the institute's claims (see 2507090056). The states and legal scholars argued that Section 338 was implicitly repealed by Section 252 of the Trade Expansion Act of 1962 and 19 U.S.C Section 2411, which codifies Section 301 of the Trade Act of 1974. In response, the institute said neither the states nor legal scholars cited a "single case so holding or even so hinting," since "there is none."
In fact, the claim that Section 338 has been repealed "flies in the face of controlling law and is squarely contradicted by numerous judicial opinions, legislative bills, and non-partisan congressional reports all treating Section 338 as a fully-operative statute," the brief said, citing numerous appellate court decisions and other authorities acknowledging as much. The institute added that the Supreme Court has repeatedly said implicit repeals are "strongly disfavored."
The institute argued that neither Section 252 nor Section 301 are in conflict with Section 338. Section 252 lets the president impose tariffs on countries that maintained "import restrictions against" U.S. agricultural products, while Section 301 lets the president "impose tariffs in designated circumstances," the brief said. In contrast, Section 338 lets the president impose tariffs when he finds that any foreign country places restriction on U.S. commerce, clearly showing the statutes can live in harmony, the brief said. In fact, both sections 252 and 301 have a section titled "Relation to Other Laws," indicating they are meant to co-exist with Section 338, the institute argued.
The U.S. states and importers also argued that the orders can't be upheld under Section 338, since Trump didn't invoke Section 338 and the tariffs don't adhere to Section 338's requirements. In response, the institute said it's well established that executive orders can be upheld "under a statute the President did not invoke," and that Trump wasn't required to "publicly declare the findings that trigger Section 338."
The states also "wholly miss" the mark when claiming Trump didn't adhere to the statute's requirements, the brief said. While the importers argued that Section 338 can't be used against a country with which the U.S. has a trade surplus, nothing in the statute "remotely suggests" this, the institute argued.
Section 338 also doesn't require an investigation by the International Trade Commission, nor does it only apply to most-favored nation violations, as the 12 U.S. states argued, the institute said. There's "no basis whatever for" these assertions, the brief said. While most-favored nation violations are explicitly addressed by Section 338(a)(1), there's no such limitation in Section 338(a)(2), the institute argued.