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Federal Circuit Appellate Brief Filed in Our Tariff Case
Our brief explains why the Federal Circuit should uphold the Court of International Trade decision striking down Trump's "Liberation Day" tariffs.

Today, the Liberty Justice Center and I filed our appellate brief in VOS Selections, Inc. v. Trump, the case challenging Trump's massive "Liberation Day" tariffs. Our litigation team also now includes Neal Katyal and Michael McConnell, leading constitutional law scholars and appellate litigators on different sides of the political spectrum. It is an honor to work with the two of them and their teams, and with the LJC team led by Jeffrey Schwab.
The case is now before the US Court of Appeals for the Federal Circuit, and we are defending a unanimous ruling in our favor by the US Court of International Trade. As before, the key issue in the case is that the government claims the International Emergency Economic Powers Act of 1977 (IEEPA) grants the president unlimited power to impose tariffs on any nation, in any amount, for any reason, for any length of time. We argue IEEPA grants no such power, and if it did it would be an unconstitutional delegation of legislative power to the executive. The Court of International Trade rightly ruled that IEEPA does not "does not authorize the President to impose unbounded tariffs" and that such "an unlimited delegation of tariff authority would constitute an improper abdication of legislative power to another branch of government. We hope the Federal Circuit will reach the same conclusions.
Many of the arguments at the appellate level are the same as those that prevailed below. But we have made a variety of improvements. For example, we explain how the Supreme Court's important recent decision in FCC v. Consumers' Research bolsters our argument that the government's claim to virtually unlimited tariff authority violates the nondelegation doctrine.
Our case is consolidated with one filed by 12 states, led by Oregon, which was decided by the Court of International Trade in the same ruling as ours.
I have written about the issues at stake in this case, in greater detail, here and here. For a complete list of links to my writings about the tariff litigation, see here.
The Liberty Justice Center has issued a statement about today's filing, which I reprint:
The government's opening appellate brief is available here.
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I assume you will now have to file a separate suit for every single person trying to import something into the United States?
Well, yeah. Which was the normal way of doing things for hundreds of years.
But, you might ask, why in the past didn't the government continue doing unconstitutional things despite not having a plethora of lawsuits filed against it? Because once an act or practice is declared unconstitutional by an appellate court, it becomes binding precedent in that area for all other cases (if it's the Supreme Court, it's binding for the whole nation). So, while the government could attempt to keep doing the unconstitutional thing, it would be easily thwarted. Thus, there would be no point in continuing a futile endeavor. Again, that's how things worked--and will continue to work--for hundreds of years.
Not that easily; each plaintiff would have to find a lawyer to represent him/her/it. If the government gets easily slapped down half the time, that still means it can deport/impose tariffs on/whatever half of its targets.
Strange, then, that that hasn't been the case for most of the nation's history.
for most of the nation's history, the Executive has followed legal norms and respected the controlling Opinions of lower courts within the courts' jurisdiction.
Strange, then, that every time there's a new president we hear from their detractors how they are "lawless" and a "dictator.
Presidents always push the bounds of the law. Sometimes they get away with it. Sometimes they don't. That doesn't license the judiciary to go outside its bounds.
No, which is rather the point of having one court, the Court of International Trade, with exclusive jurisdiction over tariffs, to avoid the absurd situation in which tariffs are found constitutional in one district but unconstitutional in another. The CIT does not have geographic boundaries. If it finds the tariffs unconstitutional, they will be unconstitutional everywhere.
Martinned2's point is that CIT's Decision formally applies only to the named Plaintiffs in this suit. the government is nominally free to impose tariffs on anyone who wasn't a party. they'd have to file their own cases. the government doesn't have to respect CIT's precedent, merely its judgment.
in CASA, the SG pledged to honor SCOTUS's Opinions rather than just their Decisions, but they haven't extended that pledge to any lower court.
No, that's not how tariffs work. Imagine there's a $1 tariff on Chinese widgets. A ship sails into port with 10,000 Chinese widgets. Customs will collect $10,000 before anyone can take delivery of those widgets. If the tariffs are declared illegal, then all Customs officials in the country will be enjoined from collecting the tariff.
The nature of the cases is different.
if the plaintiff were the widget importer, Customs could exempt shipments destined for that importer to guarantee complete relief. if the plaintiff were the widget exporter, Customs could just exempt all shipments of that company's widgets. Customs doesn't have to exempt sprockets going to a sprocket importer.
the Opinion might find that the tariffs are illegal categorically, but the relief is only entitled to the named plaintiffs. that's the issue. the government doesn't risk contempt unless it violates the (final) injunction, and the injunction only applies to the plaintiffs (whether individuals or a class, but not universal post-CASA.)
Tariff cases are unique in that the Constitution mandates that "all Duties, Imposts and Excises shall be uniform throughout the United States.” I won't pretend I've done a deep dive on the issue, but, in my opinion, that provision not only permits, but requires, universal relief if a tariff is found to be categorically illegal.
The Constitution also mandates that citizenship laws be uniform, but that didn't seem to affect the Court's decision in CASA.
I didn’t think it was possible, but your posts are progressively becoming even more nonsensical. I am sincerely concerned. Please, consider undergoing some neurological testing.
would you be so kind as to explain to the less cognitively gifted of us how the cases are different?
the Constitution mandates that citizenship laws must be uniform throughout the land. it also mandates that duties (i.e. tariffs) be uniform.
you argue that tariffs require a universal injunction rather than simply relief for the named plaintiffs, because of the uniformity requirement. yet you also argue that citizenship, despite the same uniformity requirement, can be decided (and this processed) differently in different circuits?
my feeble feminine mind can't follow your argument, so if you'd be so kind please show me the difference.
Ilya's puts his ignorance of economics on full display. Stick to your chosen field of the law. Your claims that "the 'Liberation Day' tariffs would be devastating to the economy, to the small businesses we represent, and to the rights of all Americans" disintegrate before the real world evidence.
Unlike television and blog commenting, economics operates on a time horizen requiring an attention span of more than five minutes. We’ll have to wait a few years before we can see that evidence.
So your plan is to wait until economic activity fits your prediction, no matter how long, and then proclaim "Presto!"
The claims by anti-tariff advocates of inflation, unemployment, and recession have fallen flat. Hold you breathe and keep waiting.
Your claims that "the 'Liberation Day' tariffs would be devastating to the economy, ...... disintegrate before the real world evidence.
Like, say, the wonderful results of Smoot-Hawley?