Importer Plaintiffs in IEEPA Tariff Suit Consent to Speedy SCOTUS Review
Plaintiffs in the primary case on the legality of tariffs imposed under the International Emergency Economic Powers Act told the Supreme Court on Sept. 5 that they consent to the high court's review of the case. Responding to the government's petition for writ of certiorari filed after the U.S. Court of Appeals for the Federal Circuit ruled against many of the tariffs, the plaintiffs, consisting of five importers, said Supreme Court review is "essential," and the court's "final word is needed urgently" in light of the harm wrought by the tariffs (Donald J. Trump v. V.O.S. Selections, U.S. 25-250).
Sign up for a free preview to unlock the rest of this article
If your job depends on informed compliance, you need International Trade Today. Delivered every business day and available any time online, only International Trade Today helps you stay current on the increasingly complex international trade regulatory environment.
In the case, the Federal Circuit held that the reciprocal tariffs and tariffs on China, Canada and Mexico meant to combat the flow of fentanyl violate the authority conferred to the president under IEEPA (see 2508290073). The Trump administration quickly appealed, asking for expedited consideration of both the cert petition and the merits of the case themselves (see 2509040017).
In response, the importers said this "case of undoubted importance requires resolution by this Court." The president has, for "the first time in American history," imposed massive tariffs on imports from every country in the world "on a permanent (though ever-shifting) basis" at levels "far exceeding the tariff schedules enacted by Congress," the brief said. The tariffs are also "in disregard" of the other statutes in which Congress has delegated tariff authority that is "narrower and subject to intelligible and judicially enforceable limits that these tariffs violate," the plaintiffs said.
Responding to some of the substantive claims made by the Trump administration, the importers noted that Congress "has never ceded its tariff authority carte blanche," which is precisely what is claimed by the government under IEEPA. The administration's limitless reading of IEEPA, which only lets the president "regulate ... importation," "plainly runs afoul of the major questions doctrine," which says Congress must explicitly delegate power to the executive on issues of major political and economic significance, the brief said.
"Here, the statute is silent -- unless one pumps into the word 'regulate' -- which occurs in hundreds of statutes -- the authority to 'tax,' which would give the President overnight the power to tax every corner of the economy that is subject to regulation," the brief said. "It’s elephants in mouseholes all over again."
The importers also said that if IEEPA were read to include unbounded tariff authority, "it would constitute an unconstitutional delegation of congressional power." The brief invoked the Supreme Court's recent decision in FCC v. Consumer's Research, which upheld a statute against a nondelegation challenge "only because it set a 'ceiling' and 'floor' on" certain tax rates. "IEEPA sets neither," the brief said.