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.

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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:

On July 8, the Liberty Justice Center continued its legal battle against the Trump Administration's unconstitutional "Liberation Day" tariffs by filing a response brief with the U.S Court of Appeals for the Federal Circuit.

The Liberty Justice Center filed a lawsuit against the "Liberation Day" tariffs on April 14, arguing that the Trump Administration cannot use the International Emergency Economic Powers Act (IEEPA) to justify the imposition of across-the-board tariffs. IEEPA does not mention tariffs at all, and even if the legislation did authorize some tariffs, it is limited to emergencies involving an "unusual or extraordinary threat." Trade deficits—the President's alleged basis for the tariffs—are not unusual, extraordinary, or an emergency. Furthermore, if IEEPA was interpreted to justify the broad tariffs claimed by the President, then it would raise constitutional separation of powers issues.

In May, the Liberty Justice Center secured a major legal victory when the U.S. Court of International Trade unanimously ruled in favor of its clients, holding that the Trump Administration had unlawfully imposed the tariffs under the guise of emergency economic powers. The federal government has since appealed that ruling to the Federal Circuit—and today's filing is the LJC's formal response to that appeal.

The Liberty Justice Center's legal challenge is joined by leading appellate lawyers and constitutional scholars Judge Michael W. McConnell, Neal Katyal, and Ilya Somin.

"The 'Liberation Day' tariffs would be devastating to the economy, to the small businesses we represent, and to the rights of all Americans. The executive branch cannot usurp Congress's authority to impose tariffs without blatantly violating the separation of powers—and it especially cannot fabricate emergencies to justify that violation. We are proud to continue our fight to hold all levels of government accountable to the people and the nation they serve," said Jeffrey Schwab, Senior Counsel and Director of Litigation at the Liberty Justice Center.

Oral arguments in the government's appeal are scheduled for July 31 at 10 am EDT before the U.S. Court of Appeals for the Federal Circuit. The arguments will be available via livestream here. Following the hearing, the Liberty Justice Center will host a media roundtable to discuss next steps in the case and answer questions from members of the press. To RSVP for the roundtable, visit the Liberty Justice Center's media reservations page here.

The government's opening appellate brief is available here.

Comments

[Martinned2]

I assume you will now have to file a separate suit for every single person trying to import something into the United States?

[Area Man]

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.

[David Nieporent]

So, while the government could attempt to keep doing the unconstitutional thing, it would be easily thwarted.

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.

[Area Man]

Strange, then, that that hasn't been the case for most of the nation's history.

[thenotoriousrbg]

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.

[Area Man]

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.

[David Nieporent]

Presidents always push the bounds of the law.

No, they don't. Most try to stick to established norms of conduct.

[F.D. Wolf]

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.

[thenotoriousrbg]

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.

[F.D. Wolf]

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.

[thenotoriousrbg]

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.)

[F.D. Wolf]

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.

[David Nieporent]

The Constitution also mandates that citizenship laws be uniform, but that didn't seem to affect the Court's decision in CASA.

[F.D. Wolf]

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.

[thenotoriousrbg]

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.

[MaddogEngineer]

It didn't affect the Court's decision in CASA, because it was not a final decision on the merits of the constitutionality of the birthright citizenship EO. As everyone continues to ignore.

What Somin is working towards here is also a final decision on the merits, not any intermediate injunction--although I'm sure he'd welcome that, if he wins on in the Federal Circuit and cert is pending with SCOTUS.

I can't say whether Wolf is correct in his analysis once any decision is final. But final ruling is when is analysis would apply.

[David Nieporent]

I know that it wasn't a decision on the merits. But it was a decision about universal injunctions. And the premise of Wolf's claim about the tariff case is that a universal injunction would be appropriate because tariffs have to be uniform. But citizenship rules also have to be uniform, so by Wolf's logic a national injunction would be appropriate in the CASA case as well.

[MaddogEngineer]

Sigh, no. What part of one decision was about national injunctions (and not on the merits) versus the other is actually on the merits?

I don't understand Wolf to be talking about an intermediate injunction while the case is litigated, as in CASA. He's talking about when a tariff decision is final, and why no subsequent nonparty litigant would need to pursue his own case absent a "national injunction" upon winning on the merits. Because tariff rates are required to be uniform. A win for one is a win for all, without any national injunction. Whether that finality happens in the Federal Circuit or at SCOTUS, because the jurisdiction already is "national".

So yes, eventually if the birthright EO is struck down at SCOTUS, no national injunction needed. If you're suggesting that the administration might not appeal an adverse district court ruling to localize the damage, sure, that's a problem. Somebody should do the hard work of certifying a class then, per the rules of procedure, and challenge Professor Barrett's sincerity.

[thesafesurfer]

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.

[ReaderY]

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.

[thesafesurfer]

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.

[bernard11]

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?

[MaddogEngineer]

Considering how financial markets reacted to the Liberation Day announcment, Somin has a reasonable argument. There absolutely would have been significant short term pain, while the long term benefits remained uncertain (uncertain to all but the most rapid partisans).

My objection to his advocacy here in that statement is him conflating economic pain with legality. Just because these tariffs might wreak economic devastation does not make them any less legal. It's not a reason for a court to strike them down. Somin talks like this all the time with regard to open borders, conflating what he thinks is beneficial to what is legal.

There hasn't been more economic devastation since their announcement because Trump TACO'd...they are not in full effect right now. So it's bogus to claim they are harmless. Markets (especially the bond market) bounced back after Trump blinked.

[David Nieporent]

Just because these tariffs might wreak economic devastation does not make them any less legal.

You are correct that "it's very harmful so it's not legal" is not a valid argument. But the argument has more steps than that: "it's very harmful so the MQD applies."

[MaddogEngineer]

I realize Somin (and others) might think very harmful means MQD applied, but no MQD is just another way to say legal (or constitutional). It's not harm, as in irreparable harm, or whatever you want to throw at it. It's the scope of the alleged granted authority, not how many affected persons are harmed. MQD is not a straight numbers game.

Either tariff setting can be delegated or it can't. Doesn't matter how many products are tariffed or how much revenue is raised. Not what MQD means, as in a percentage of GDP or something. It's not like a little bit of tariff delegation would be okay to avoid the MQD.