Attorneys Say CIT Judges Assigned to IEEPA Case May Rein in Trump's Tariff Authority

The suit was brought by the conservative Liberty Justice Center to challenge both Trump's use of the IEEPA and the statute itself, saying first that the action is a violation of his authority granted under the statute, then that the law as a source of tariff-setting authority is an unconstitutional delegation of power (see 2504150043). Chief Judge Mark Barnett assigned the matter to the three judges in an April 16 order (see 2504160056).

John Peterson, partner at Neville Peterson and counsel for importers and exporters, said all the judges are "thoughtful and insightful." He added that Restani and Katzmann have a "wealth of experience," both on the bench and serving on three-judge panels.

A trade attorney said in an email that all three are "very smart jurists with experience considering the issues before them." Restani and Katzmann have reviewed similar issues, including injunctive relief and the "intelligible principle" doctrine of delegation, in the Section 232 context, and Reif is currently reviewing President Joe Biden's solar panel duty moratorium. "They will approach the case fairly and will be open to arguments, especially in a post Loper-Bright world," the attorney said. "All three are very good at dialing into a particular issue and will require precision from litigants in how they present the issue."

Of the three judges, Restani has served the longest on the court, having been appointed by President Ronald Reagan in 1983. As a result, she has adjudicated hundreds of trade disputes, leaving litigants with the clearest picture of who she is as a jurist.

One attorney characterized her as the "most no-nonsense of the judges," adding that she's "practical and to the point." The attorney characterized her as "tough" in oral arguments and evidentiary hearings but never unfair. "She's going to hold everybody's feet to the fire," regardless of whether it's the government or the opposing party, the attorney said.

Peterson added that Restani "is pretty consistent in keeping the government in its own lane and stopping overreach," noting a handful of cases in which the judge rejected the government's interpretation of the law. For instance, in 2020, Restani found various Treasury Department regulations altering the duty drawback regime to be unlawful. The same year, as part of a three-judge panel, she also found Trump's Section 232 steel and aluminum tariff rate hike on Turkey violated certain procedural requirements under the law and the Constitution's "guarantee of equal protection under law."

Another attorney believes Restani to have an "instinctively negative view of this administration" and would love to join a majority decision standing up to the tariffs. Basing this take on the judge's prior decisions and public statements, the attorney said both Katzmann and Restani likely will "be very happy if their legal analysis leads them to a conclusion that they're going to stand up to Donald Trump's tariffs."

Katzmann joined the court in 2016 after serving from 2004 to 2016 as an associate justice on the Massachusetts Appeals Court. One attorney described his approach as a jurist to be "bordering on academic." As a result, the attorney speculated that Katzmann may be more amenable to the weightier constitutional issues or invocations of the legislative history of IEEPA. The attorney said Restani may be less willing to wade into these issues as thoroughly, since she may resolve the issue more directly by the words of the statute itself.

The least is known about Reif, who joined the court in 2019 upon nomination by Trump in his first administration. Reif served as trade counsel to the House of Representatives Ways and Means Committee as both a junior attorney and as chief international trade counsel. He then spent nearly a decade as general counsel at the Office of the U.S. Trade Representative under both Trump and President Barack Obama, though no mention is made of either president on his biography page on the court's website.

One attorney speculated that Reif may not have as strong a desire to rein in this administration as Restani or Katzmann do but may be inclined to restrict the ability to use IEEPA to impose tariffs to preserve the trade remedies system. Through his years at Ways and Means and USTR, during which he served as lead negotiator for the U.S. on the Uruguay Round Antidumping Agreement, Reif most likely believes IEEPA can't be used to impose tariffs and may believe IEEPA tariffs "call into question the ongoing utility of having antidumping and countervailing duty laws on the books."

Even before the reciprocal tariffs came into effect, Trump embraced alternative duty-setting authorities to circumvent AD/CVD issues, the attorney noted. For instance, the president imposed Section 232 tariffs on fabricated structural steel and aluminum extrusions -- the two products that suffered losses during AD/CVD proceedings. "If they are handing tariffs out at the White House for free out the back door like it’s Christmas morning, then why would we want to bother using antidumping duties?" the attorney asked, presenting the question as potentially at odds with how Reif views trade laws.

"That's not to say that he's a bad judge and would make a policy-oriented decision that's not sound on the law," but it may just make him more comfortable in joining a majority decision striking down the tariffs, the attorney said.

Given his relative inexperience on the court, Reif has less decisions from which to holistically paint a judicial philosophy, though there have been instances in which he has deferred to the government's read of a trade statute. For instance, he recently upheld the Commerce Department's ability to countervail foreign currency manipulation (see 2410280035). However, one attorney said "being deferential to the Commerce Department in its administration of Title VII laws and being differential to the White House in its interpretation of IEEPA are very different things."