The case against the lists 3 and 4A tariffs is unlikely to be heard by the Supreme Court or the full U.S. Court of Appeals for the Federal Circuit, and the recent decision from the Federal Circuit upholding the tariffs likely gives the Trump administration greater confidence in using tariff authorities other than the International Emergency Economic Powers Act, various attorneys told us.
The U.S. Court of Appeals for the Federal Circuit on Sept. 25 upheld the lists 3 and 4A Section 301 tariffs on China, finding them to be a valid exercise of authority under Section 307(a)(1)(C). CAFC Judges Todd Hughes and Alan Lourie, along with Eastern District of Texas Judge Rodney Gilstrap, sitting by designation, held that the statute's permission to "modify" Section 301 action where it's "no longer appropriate," allows the U.S. trade representative to ramp up the tariffs if the original action is "insufficient" to achieve its "stated purpose."
The U.S. Court of Appeals for the Federal Circuit on Sept. 25 upheld the Lists 3 and 4A Section 301 tariffs. CAFC Judges Todd Hughes and Alan Lourie, along with Judge Rodney Gilstrap of the Eastern District of Texas, who was sitting by designation, said the tariffs were a valid exercise of the government's authority under Section 307(a)(1)(C), which lets the U.S. Trade Representative "modify or terminate any action" taken under Section 301, where such action is "no longer appropriate."
Four amicus briefs were filed at the Supreme Court on Sept. 23 in defense of President Donald Trump's ability to levy tariffs under the International Emergency Economic Powers Act. The briefs focused on various elements of the case, though they all argued that the nondelegation doctrine shouldn't be used to strip the president of his tariff authority here, since the court has long upheld broad delegations of authority to the president in the realms of foreign affairs and national defense (Donald J. Trump v. V.O.S. Selections, U.S. 25-250) (Learning Resources v. Donald J. Trump, U.S. 24-1287).
Corey Biazzo, a Charlotte-based civil litigation attorney, filed an amicus brief before the Supreme Court on Sept. 21 in opposition to tariffs imposed under the International Emergency Economic Powers Act. Biazzo's submission is the first amicus brief filed in the case on the merits and argues that President Donald Trump's claimed tariff authority violates separation of powers principles (Donald J. Trump v. V.O.S. Selections, U.S. 25-250) (Learning Resources v. Donald J. Trump, U.S. 24-1287).
The U.S. filed its opening brief at the Supreme Court on Sept. 19 in the lead cases on the legality of tariffs imposed under the International Emergency Economic Powers Act. Solicitor General D. John Sauer said the reciprocal tariffs and tariffs on China, Canada and Mexico meant to stop the flow of fentanyl are a valid exercise of IEEPA, adding that the tariffs are a proper expression of presidential policymaking in emergency situations.
The Supreme Court on Sept. 9 agreed to hear two cases on the legality of tariffs imposed under the International Emergency Economic Powers Act and to do so on an expedited basis. The court set a briefing schedule that would conclude by Oct. 30 and set argument for the first week of November (Donald J. Trump v. V.O.S. Selections, U.S. 25-250) (Learning Resources v. Donald J. Trump, U.S. 24-1287).
Plaintiffs in the primary case on the legality of tariffs imposed under the International Emergency Economic Powers Act told the Supreme Court on Sept. 5 that they consent to the high court's review of the case. Responding to the government's petition for writ of certiorari filed after the U.S. Court of Appeals for the Federal Circuit ruled against many of the tariffs, the plaintiffs, consisting of five importers, said Supreme Court review is "essential," and the court's "final word is needed urgently" in light of the harm wrought by the tariffs (Donald J. Trump v. V.O.S. Selections, U.S. 25-250).
The Supreme Court may be willing to adopt certain arguments made by the dissenting judges in the U.S. Court of Appeals for the Federal Circuit's decision on the legality of tariffs imposed under the International Emergency Economic Powers Act, various attorneys told us. Specifically, certain justices may be willing to adopt Judge Richard Taranto's discussion of the major questions doctrine and the nondelegation doctrine, though others were more skeptical about how much tariff authority the court is willing to cede to the president under IEEPA and these two doctrines.
The Court of International Trade held that Section 1318(a) of the Trade Act of 1930, which lets the president grant duty-free treatment to certain goods "for use in emergency relief work," doesn't cover solar cells and modules. As a result, Judge Timothy Reif vacated the Commerce Department's duty "pause" on collection of antidumping duties and countervailing duties on solar cells and modules from Cambodia, Malaysia, Thailand and Vietnam that were set to be collected from the four countries due to an anti-circumvention proceeding.