'No Basis' for US Claim of No Substitute for IEEPA Tariffs, Importers Tell CAFC
The five importers challenging the legality of President Donald Trump's tariffs imposed under the International Emergency Economic Powers Act said there's "no basis" for the claim that there's "no substitute" for the IEEPA tariffs and recent trade deals Trump has made (V.O.S. Selections v. Donald J. Trump, Fed. Cir. # 25-1813)
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The importers, represented by the conservative advocacy group the Liberty Justice Center, were responding to a recent notice of supplemental authority from the U.S. regarding the potential fallout from a ruling against the president's tariffs. In its Rule 28(j) letter, which concerns notices of supplemental authority, the U.S. said that stripping the president of his authority to impose tariffs under IEEPA would lead to "ruinous" economic consequences in light of the trade deals reached with the EU, Indonesia, the Philippines, Japan and the U.K. (see 2508110029). The government said the trade deals support a stay of any adverse ruling.
In an email, the Liberty Justice Center said it won't oppose a stay motion should it prevail, since it's "more important" to get the government to seek Supreme Court review "on an expedited basis rather than the government taking their usual 90 days." The center said the U.S. "routinely uses the maximum time allowed, and that delay would cause greater long-term harm to our clients and to the separation of powers at stake in this case."
Responding to the Rule 28(j) letter in court, the center said discussion of the trade deals is improper for a Rule 28(j) letter, since the U.S. cited the same events during oral argument. Also, any discussion of a stay is "premature," since it's "not yet known how the Court will rule and it is impossible to evaluate the likelihood of a grant of certiorari or success before the Supreme Court."
Even considering the substance of the letter, the government is wrong to say there's no substitute for the IEEPA tariffs or deals struck with other countries. "Even without IEEPA, the President can obtain ex ante authority to enter into trade agreements" or "submit agreements for congressional approval, including via fast-track procedures, as prior presidents have done," citing the Trade Promotion Authority and the implementation of the U.S.-Mexico-Canada Agreement.