Federal Circuit Grants Government's Motion for Stay Pending Appeal in Our Tariff Case

It's disappointing. But the court will hear the case on the merits on an expedited basis, and we have a strong case.

Earlier tonight, the US Court of Appeals for the Federal Circuit imposed a stay pending appeal temporarily blocking implementation of the Court of International Trade ruling striking down Trump's "Liberation Day" tariffs, in the case filed by the Liberty Justice Center and myself on behalf of five businesses harmed by the tariffs. The stay also applies to the case filed by twelve states led by Oregon, decided in the same CIT ruling. The court's order is available here.

It's an unfortunate decision. As is often the case with stay orders, the court said very little about its reasoning. But it did seem to go out of its way to indicate this is not a ruling on the merits:

Both sides have made substantial arguments on the merits. Having considered the traditional stay factors, see Fed. R. App. P. 8; Nken v. Holder, 556 U.S. 418, 426 (2009), the court concludes a stay is warranted under the circumstances. See also Trump v. Wilcox, 605 U.S. ___, 145 S. Ct. 1415, 1415 (2025) (per curiam) ("The purpose of . . . interim equitable relief is not to conclusively determine the rights of the parties, but to balance the equities as the litigation moves forward….")  The court also concludes that these cases present issues of exceptional importance warranting expedited en banc consideration of the merits in the first instance.

The court also ordered an expedited schedule for consideration of the case, and decided it would hear the case en banc (meaning it will be heard by all members of the court, and not just a three-judge panel), noting that "these cases present issues of exceptional importance warranting expedited en banc consideration of the merits in the first instance."

We have a strong case, and I remain guardedly optimistic that the appellate court will ultimately see that the President's claim of virtually unlimited power to impose tariffs is blatantly illegal - which is what every court to have considered the issue so far has concluded.

Liberty Justice Center Senior Counsel Jeffrey Schwab, with whom I am co-counsel on this case, issued the following statement, with which I agree.

We're disappointed the Federal Circuit allowed the unlawful tariffs to remain in place temporarily. It's important to note that every court to rule on the merits so far has found these tariffs unlawful, and we have faith that this court will likewise see what is plain as day: that IEEPA does not allow the president to impose whatever tax he wants whenever he wants. We are glad the Federal Circuit recognized the importance of this case, and agreed to hear it before the full court on an expedited schedule.

For those interested, a compendium of links my writings on the case is available here.