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:
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.