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.

Comments

[Stepped Reckoner]

I practice before the Federal Circuit and am of necessity a longtime student of their behavior. Make no mistake, this stay order is a great sign for the government.

Regardless of the Court’s “this is not about the merits” bullsh_t, or Somin’s partisan, biased, non-academically-detached cheerleading bullsh_t, the Court is certainly leaning the Administration’s way on the merits. The Liberty Justice Center’s counsel and amici have their work cut out for them.

[Kafir]

It seems silly to expect counsel for one of the parties to litigation to be unbiased and academically detached when discussing his own case …

[Poxigah146]

Anything that Somin supports is bad for America, so that's a good thing.

[Joe_dallas]

That was my impression - The CA imposed a stay for a reason

[Mr. Bumble]

...because given the snail's pace of litigation the stay would have caused irreparable harm to the government's ability to achieve a more equitable alignment of trade and tariffs between the US and those we trade with.

[David Nieporent]

Since tariffs have nothing to do with equity, that's obviously wrong.

[F.D. Wolf]

And for those who don’t know, or who need a refresher on civil procedure, the first and most critical factor in granting a stay pending appeal is “the applicant has demonstrated a substantial likelihood of success on the merits.” This per curiam order bears the names of 11 of the 12 judges on the court and no recorded dissents. You can do the math.

On May 15, American Greatness ran an article, citing a knowledgeable source close to the Court of International Trade, saying that the “fix is in”, that the chief judge of the court had not assigned a random panel to the tariffs case, but one he knew would strike down the tariffs. On May 29, the CIT issued its ruling. The opinion looks like it was hastily and sloppily drafted, essentially just a checklist regurgitating all the plaintiffs’ arguments. I thought at the time, even if this holds up, which I doubt, it will certainly be on much narrower grounds.

Somin often proceeds from a typically leftist posture of, “I don’t like this policy, so it must be unconstitutional”. E.g., these tariffs are unconstitutional; zoning is unconstitutional; immigration restrictions are unconstitutional. Of course, a legitimate, functioning legal system can’t operate that way.

I believe it is “plain as day” that the text of the IEEPA does delegate the tariff authority to the President, and that there is clear, practically on-point binding legal precedent to that effect that the CIT just chose to ignore. As to the idea that Congress lacked the power to delegate that authority, that is just Lochner-libertarian fantasy that may have had some weight in 1930, but is gone with the wind today and won’t be coming back any time soon.

I'll note the 12 appointees on the court breakdown as follows: Reagan: 1, G.H.W Bush: 1, Clinton: 1. G.W. Bush: 2, Obama: 5, Biden: 2. (Zero Trump appointees.)

[Stephen Lathrop]

Given previous jurisprudence, the court confronted a momentous question: What kind of king is the nation to have? Will it be a weak, ineffectual king such as George III, subject to constraint by a sovereign legislature? Or will it be an all-out fully-sovereign monarch like Henry VIII? Obviously, not a question a judge can afford to get wrong.

To understand that is to gain critical new insight into the notion, "Likely to succeed on the merits." It cannot be intended to mean, "likely," on the basis of what a mere appellate panel might decide on its own. National safety—not to mention the safety of the judges themselves—must defer an answer on that touchy issue to a realistic estimate about what SCOTUS itself will decide.

[Stephen Lathrop]

The authorities granted to the President by section 1702 of this title may only be exercised to deal with an unusual and extraordinary threat with respect to which a national emergency has been declared for purposes of this chapter and may not be exercised for any other purpose.

How is it “plain as day,” that to read a provision like that Constitutionally, it must be interpreted as a passive-voiced legislative grant of power without limit, somehow overturning even the Constitutional assignment of the taxation power to Congress?

[F.D. Wolf]

And where is the provision in the statute allowing a district judge to substitute his judgement for that of the President and Congress? Congress can override an emergency declaration anytime it wants. And yet it hasn't. It hasn't even voted on whether to do so, as it did in the case of the border wall emergency in the first Trump administration.

Presidents have declared hundreds of emergencies in this nation's history. How many times has a court stepped in and said, "Sorry, we don't think this qualifies as a REAL emergency." The answer is zero, because it is a political question reserved to the people's elected representatives in the White House and Congress.

Was it an according-to-Webster's "emergency" when President Bush declared one to stop imports of wood products from Liberia? Or when President Obama declared one to stop imports of diamonds from Sierra Leone? Maybe or maybe not, but it was a question left to the President and Congress. For all your concern about "kings", you seem content to leave these decisions to unelected, unaccountable, life-tenured judges.

But I have just been making my prediction based on my reading of the law and court precedent as it exists, not as I would have made it. Of course, the case is not over, but it seems a good sign for the government that not one judge on the court even noted an objection to the stay. If the court ultimately rules in favor of the government, then your objections should be directed at it, not me. You still have time to file an amicus brief if you feel the court is missing some compelling argument.

[Stephen Lathrop]

F.D. Wolf — So your view is that absent congressional action, the Constitutional taxation power reverts to the President? Because members of Congress and the President are alike in being elected, I suppose.

If the Congress determines in its own judgment that the President has neglected to command the armed forces, does your principle empower Congress to step in and take command in the President's stead—and no interference from pesky courts?

I take it you find this novelty empowered by the all-important, "Whatabout," Clause, the Constitution's recently most-cited provision, and one even more generally applicable than, "Necessary and Proper."

[F.D. Wolf]

Honestly, I have no idea what you're on about. I am not talking about overarching principles of government, just the statutory interpretation of the text of this one particular statute, which is what the court will be dealing with. You seem a bit hysterical, and I don't wish to exacerbate it, so I'll let this be my last words in this exchange. All the best.

[VinniUSMC]

So your view is that absent congressional action, the Constitutional taxation power reverts to the President?

Nice strawman. How about, "given legislation that says the President may do X, if the President does X, and Congress doesn't act to oppose, then the President may do X."

Lying sack of Leftist shit. You're past your expiration date, failed editor/publisher.

[Stephen Lathrop]

Also? I am not the guy to accuse of supporting non-accountability for judges.

I have repeatedly called for recognition, and action, to hold judges accountable by means of enforcement of their oaths. Because those oaths are sworn to support the Constitution, the joint popular sovereign's decree to empower government, I think the question whether oath performance has been satisfactory is one properly left to the People to administer. I think federal grand juries—acknowledged tribunes of the People already in existence—are properly capable to undertake that task at their own initiative, and ought to do it.

[VinniUSMC]

The only judges you admonish are ones you disagree with, weird.

[David Nieporent]

Congress can override an emergency declaration anytime it wants.

That's borderline sophistry, though. "Congress" cannot in fact do so. It only takes 50%+1 of Congress to delegate the power to make such a declaration to the president. But it takes 67% of Congress to override such a declaration.

How many times has a court stepped in and said, “Sorry, we don’t think this qualifies as a REAL emergency.” The answer is zero, because it is a political question reserved to the people’s elected representatives in the White House and Congress.

Even assuming you're right (and there's no reason to think it is a political question), it's irrelevant, because the basis of the argument isn't about whether an emergency exists, but about whether very longstanding trade deficits are an "unusual and extraordinary threat."

[maxparrish]

First, I fully agree that it is “plain as day” that Congress required it be a national emergency and for “no other purpose”. Unless one is not fluent in english, the requirements and limitations are clear.

Second, it follows that if it can be sufficiently shown that was NOT for a national emergency, and/or served another purpose then then President’s act is unlawful. Judging the law, the cases, and if the law is violated is what the court system is for…also plain as day.

Three, be aware that Congress did try to make a check when the law was passed, allowing Congress to veto the President’s use of this power in specific cases if it did not agree. However, the courts made this intended check on Presidental abuse useless, in another case essentially finding that the President can veto that check.

Four, the net result is that once Congress “lends” any power to a President he simply usurps that power and can veto any attempt to retrive it. Hence only the courts can reign in a mad King.

This mess is a creature of the court: the IEEPA passed with a vital check, but afterwards was a disaster waiting to happen. And now it appears the courts are too cowardly to confront a clearly unlawful act by Trump, on a timely basis or so it seems.

Apparently the ’emergency clause’, as in other systems, serve as a channel to autocracy for the ambitious ruler.

[Poxigah146]

>>On May 29, the CIT issued its ruling. The opinion looks like it was hastily and sloppily drafted, essentially just a checklist regurgitating all the plaintiffs’ arguments. I thought at the time, even if this holds >>up, which I doubt, it will certainly be on much narrower grounds.

Most anti-2nd Amendment decisions from Democrat judges look like that too.

[MaddogEngineer]

This is the point I’ve been trying to make in other post comments about these tariffs. Congress has been delegating to the president like this for a long time. Some of this authority has been previously used by past presidents, obviously not to this scale. Scale doesn’t help with the particular argument against being made, that the emergency doesn’t allow for tariffs rates to be set.

Because of all that, what’s egregious about the opposition of most to these tariffs is that they want a Trump exception. They are not philosophically opposed to non-delegation etc. They are opposed to Trump making use of this authority. They won’t do the hard work of advocating for repeal of such delegations of authority, because they want a future Democrat president to have it.

What’s objectionable about Somin is, as you say, adopting the leftist posture: “I don’t like this policy, so it must be unconstitutional”. That’s my big gripe about this brand of legal libertarianism, as practiced by Somin. Never viewing precedent as existing or legitimate. Brilliant observation, which I couldn’t ever articulate before now.

I'm opposed to the tariffs. I want Congress to repeal these delegations. But they are the law. Maybe we should reconsider all this, across the board.

[Kazinski]

I am nog a supporter of Trumps tariffs, particularly in regard to the developing world.

However the news from earlier today shows why any injunction should await both a final ruling and an opportunity for Congress to weigh in:

"SINGAPORE, June 11 (Reuters) - U.S. and Chinese officials said they had agreed on a framework to put their trade truce back on track and remove China's export restrictions on rare earths while offering little sign of a durable resolution to longstanding trade differences."

While negotiations are going on with major trading partners, and deals are being struck the courts should keep a very low profile.

[Variant]

All of the extremely modest deals negotiated could easily be arrived at without tariffs, or with tariffs under the TEA framework.

The president having unlimited low latency taxation power to pick winners and losers in the economy will continue to cause chaos for businesses. My employer has already executed a round of layoffs due to the uncertainty, and the need to sit on cash. Just hope this all ends soon.

Can’t wait until President Newsom or AOC does this.

[Michael P]

A bare assertion that the deals could be reached through some imagined counterfactual approach is grossly inadequate to establish that the actual approach is illegal, much less unconstitutional.

[Poxigah146]

https://www.cnn.com/2025/06/11/politics/congress-stock-market-trading-trump

Bipartisan crookery.

[thesafesurfer]

Actually it’s a relief that a court refused to go outside its separation of powers lane.