Federal Circuit Issues Brief Administrative Stay in Our Tariff Case

This is a standard order imposing a brief stay of the trial court ruling, while the parties litigate the issue of whether a longer stay should be imposed.

Last night, the US Court of International Trade (CIT) issued a unanimous ruling in the case against Trump's "Liberation Day" tariffs filed by Liberty Justice Center and myself on behalf of five US businesses harmed by the tariffs. The ruling also covers the related case filed by twelve states led by Oregon. See my summary and discussion of the ruling here.

As expected, the Trump Administration is appealing the decision to the US Court of Appeals for the Federal Circuit, the appellate court with jurisdiction over appeals from the CIT. Today, the Federal Circuit issued an "administrative stay" temporarily blocking the CIT ruling. This is not an indefinite stay blocking the CIT injunction for as long as it takes to complete the appellate process. Rather, an administrative stay is just a brief temporary block imposed while the issue of whether a more permanent stay pending appeal should be implemented gets litigated. I anticipate that process will take no more than two or three weeks. To put it  different way, this is a brief temporary stay intended to give the court time to consider whether a longer stay should be imposed.

We and the plaintiffs in the Oregon case intend to oppose the government's motion to impose an indefinite stay, and we think we have strong arguments against it.

The difference between administrative stays and regular stays pending appeal is one of those confusing technicalities that makes ordinary people hate lawyers. I'm a law professor, and I find it annoying myself. I have tried to explain it as best I can. If you want a more detailed explanation, see this article by University of Virginia law Prof. Rachel Bayefsky.

I will have more to say about the case soon!

 

Comments

[Dr. Ed 2]

Ilya lost.

[Stupid Government Tricks]

Riiiight.

[OpinionsVary]

Why do you think so? The Federal Circuit is heavily Dem leaning. Given that, it seems likely the administrative stay really is just an administrative stay.

[Brophy]

The Republican judges ruled against Trump. Democratic judges are more likely to rule for him because they like tariffs and Presidential power.

[Glaucomatose]

The Democratic judge (if we're accepting this shorthand meaning the judge appointed by a Democratic president) also ruled against Trump. And Democrats aren't the ones these days pushing the idea of a unitary executive with unbridled power.

[Riva]

Fun fact. This particular panel of judges was not randomly chosen. They were hand picked by the chief judge (an Obama appointee by the way). I wonder why? Not because they had already decided to rule against the administration of course. Don’t let the lightning fast decision issued outside of normal business hours fool you. Nothing to see here.

[not guilty]

"Fun fact. This particular panel of judges was not randomly chosen. They were hand picked by the chief judge (an Obama appointee by the way)."

How do you claim to know that, Riva?

[Riva]

The process is admittedly less than transparent. So I do some looking. And this is what American Greatness has reported:

The chief judge of the United States Court of International Trade is Mark A Barnett, who joined the court in 2013 after a nomination from President Barack Obama. He became chief judge on April 6, 2021.
According to the well-placed source, rather than drawing the panel at random, Chief Judge Barnett “fixed” the outcome by selecting three judges whom he knew would “overrule the president” and render his tariffs “null and void.”

Now of course one can disbelieve this report. But the question then remains as to how this panel was chose. Was it randomly chosen? And what evidence do you have that would support that contention? Maybe Somin has some insight? If he does, he apparently has declined to comment. I have this report and, of course, the strangely lightning fast determination issued after hours.

[Roger S]

The Federal Circuit is a wild card. No telling what it will do. They will probably have to learn what a tariff is.

[LawTalkingGuy]

No. No he didn’t. And if there’s one signature Trump policy that I am positive the Supreme Court will really hate, it’s his tariffs. This is a perfect case for this Court:

It’s a non-delegation/MQD case (which they’ll love) about taxes (which they hate) that they’ll also have to pay (which they’ll also hate) the implementation of which is causing market chaos and long-term could severely damage their investments (which they’ll also hate) and it’s one of his more unpopular policies and will make them more popular (which they’ll like).

[Riva]

Again that's the basic error here. Courts aren't entitled to substitute their policy views on what tariff levels are appropriate in light of the determination of a national emergency. These are political issues relegated to the political branches.

And it should be noted that the irresponsible antics of the litigants and judges are doing great damage not only to the Constitution but to international relations and the markets in general. They are contemptible.

[Stupid Government Tricks]

If courts always followed the law religiously, we'd have 1/100th the government we have now and probably would have had no wars since 1815, including the Civil War.

Meanwhile, in the real world ...

[Botaglove]

the irresponsible antics of the litigants and judges

Bringing lawsuits and deciding them?

[David Nieporent]

Again that's the basic error here. Courts aren't entitled to substitute their policy views on what tariff levels are appropriate

There is no such "error here," because that is not what the court did. The decision in no way turned on "what tariff levels are appropriate," but whether Trump has the legal authority to impose them at all.

And it should be noted that the irresponsible antics of the litigants and judges are doing great damage not only to the Constitution but to international relations and the markets in general.

That should not in fact be noted, because it is delusional. Even if the tariffs weren't an economically illiterate idea to begin with, the fact that they keep getting imposed, suspended, and adjusted at the whim of the Mad King is what is doing damage to the markets and our relations. Courts standing up for the rule of law helps both of those things.

[Estragon]

Not just markets and relations— it’s even worse than that! Just read what some of the small business plaintiffs had to say! For example, here is what the President of Terry Cycling has to say:

25k in tariff costs already this year, projected to be $250k by the end of 2025. Tariffs costs without mitigation for 2026 would be $1.2m, not survivable for the business. Tariffs would become the single biggest item on P&L statements— surpassing payroll! And this is after they already raised prices 30%.

Can you imagine trying to start or run a small business not knowing whether Trump is going to wake up on the wrong side of bed and decide to impose ruinous tariffs? Based on his personal, delusional and demented feelings?? How could you expect to run a business like that?

[Riva]

I was being nice describing it as irresponsible. And I should have written “beneath contempt.” At the very least this has emboldened China to stall in negotiations. Maybe permanently. You creeps seem to love the CCP. Maybe more accurately you just don’t like this country.

[David Nieporent]

At the very least this has emboldened China to stall in negotiations.

To echo NG above: how do you claim to know this? Are you secretly Donald Trump?

[David Nieporent]

Is that your professional assessment as a janitor?

[Riva]

Interesting that you think being a janitor would be an insult. That's an impressively stupid Hillary level "basket of deplorable" level remark.

[ah....Clem]

Meanwhile, there's another "tariffs" case in the news, Learning Resources v Trump in the DC District court. I put "tariffs" in quotes since according to the court, this case is not about tariffs.

IANAL, but it's an interesting jurisdictional question - if the suit was about tariffs, then the DC District would not have jurisdiction, the CIT would. The administration made this argument and moved to have the case transferred there, but the DC District says:

...subject-matter jurisdiction turns on whether IEEPA is
a “law . . . providing for” “tariffs, duties, fees or other taxes on the importation of merchandise for reasons other than the raising of revenue.” 28 U.S.C. § 1581(i)(1). If the answer is yes, then the Court of International Trade has exclusive jurisdiction under 28 U.S.C. § 1581(i)(1). If the answer is no, then this Court has jurisdiction under 28 U.S.C. §§ 1331 and 1346. The jurisdictional question is tantamount to the principal merits question: whether IEEPA authorizes (or “provid[es] for”) tariffs.

They then conclude that IEEPA is not a law providing for tariffs, hence they have jurisdiction. And my reading of the last sentence above implies that the defendants will lose on the merits.

TL;DR; the court issued a preliminary injunction against the tariffs, which they have stayed for ten days. We'll see what happens when this gets appealed to the DC Circuit. Stay tuned.

https://storage.courtlistener.com/recap/gov.uscourts.dcd.279804/gov.uscourts.dcd.279804.37.0_3.pdf

[Stupid Government Tricks]

Perhaps you could explain what kind of an emergency necessitates emergency tariffs.

"Mr President! A container ship is approaching Boston Harbor with a shipment of a new kind of tea!"

"We'll slap a tariff on them so fast it will create a whirlpool and sink them!"

[MaddogEngineer]

This is more of the same kind of "clever" Resistance™ judging that will lead to the destruction of the judiciary as we know it. I don't want that, but I recognize the distinct possibility.

[Glaucomatose]

Donald Trump appointed Resistance™ judges?

Why'd he do that?

[ah....Clem]

I can't say that I agree with the court's jurisdictional judgment here, but it's not so far out that it's in any danger of destroying the judiciary. By way of analogy:

Statute X says the executive branch has the authority to regulate "frim-frams, ooblies, and fisbins". The administration claims statute X allows it to regulate widgets. Widget manufactures sue, claiming that statute X does not pertain to widgets. There's a special court that was created by congress to adjudicate suits over widgets.

Does this go to "widget court"? The suit is about Statute X and Statute X does not address widgets. It's not at all clear to me why that's enough to move it to widget court, although I can see the argument that it should.

And in practice, each side's attorneys will argue for whichever venue is most favorable for their client, since that's their job. Which is why the administration's legal team wanted to move it to CIT (widget court in my hypo) since the answer to the jurisdictional question basically decides the merits question.

[Kazinski]

For what its worth Jack Goldsmith seems to think the administrations case is much stronger than I thought it was.

https://x.com/DamonLinker/status/1927888157585838181

And other experts think its just a temporary setback too:

"It's a setback [but] it doesn't mean that the president can't find other means or authorities to try to implement this policies, and it's also just the first step in litigation," Greta Peisch, a former Biden administration trade general counsel, now at law firm Wiley Rein, noted in a Yahoo Finance appearance Thursday morning.

https://finance.yahoo.com/news/2-laws-trump-could-use-to-reimpose-his-tariffs-and-why-he-might-use-both-162942332.html

Personally I think Congress should act to give Trump some authority to maintain the tariffs while he continues to negotiate, since tariffs are taxes that provide revenue it could be added in the Senate to the BBB package.

One other indication that the tariff ruling won't have any effect at least in the near future is the stock market completely shrugged off yesterday's ruling, and today's stay that came before the market closed.

[y81]

Isn't Goldsmith's argument the same as saying, "Congress has been appointing boards and commissions whose members cannot be removed except for cause for decades now"? How is that argument looking these days?

[Dan Lo Pan 2]

I sure wish Ilya would learn to use the pronoun "me" instead of the awkward and incorrect "myself."

[ah....Clem]

While you are technically correct, bear in mind that the English language drinks prescriptivist tears like wine.

[HazelMeade]

I think this makes sense as it would result in uncertainty in the market toremove the tariffs while the more permanent stay is litigated. Switching to no tariffs for two weeks and back to tariffs is more disruptive than keeping then for two weeks and then imposing the longer term stay.

[MaddogEngineer]

Oh, okay then.

[The Turtle Dove]

Panel will reverse, on the grounds that the central innovation was already disclosed in Smoot-Hawley. Prior artful politicking.

Mr. D.