Right. Most of the news articles don't link to the decision, which is worth reading.
It's a 6-3 decision. Not close.
Here's the actual decision:
The judgment of the United States Court of Appeals for
the Federal Circuit in case No. 25–250 is affirmed. The
judgment of the United States District Court for the District of Columbia in case No. 24–1287 is vacated, and the
case is remanded with instructions to dismiss for lack of jurisdiction.
So what does that mean in terms of action?
It means this decision [1] is now live. The vacated decision was a stay, and that's now dead.
So the live decision is now: We affirm the CIT’s holding that the Trafficking and
Reciprocal Tariffs imposed by the Challenged Executive Orders exceed the authority delegated to the President by IEEPA’s text. We also affirm the CIT’s grant of declaratory
relief that the orders are “invalid as contrary to law.”
"CIT" is the Court of International Trade. Their judgement [2], which was unanimous, is now live.
It reads:
"The court holds for the foregoing reasons that IEEPA does not authorize any of the
Worldwide, Retaliatory, or Trafficking Tariff Orders. The Worldwide and Retaliatory Tariff
Orders exceed any authority granted to the President by IEEPA to regulate importation by means
of tariffs. The Trafficking Tariffs fail because they do not deal with the threats set forth in those orders. This conclusion entitles Plaintiffs to judgment as a matter of law; as the court further finds no genuine dispute as to any material fact, summary judgment will enter against the United States. See USCIT R. 56. The challenged Tariff Orders will be vacated and their operation permanently enjoined."
So that last line is the current state: "The challenged Tariff Orders will be vacated and their operation permanently enjoined." Immediately, it appears.
A useful question for companies owed a refund is whether they can use their credit against the United States for other debts to the United States, including taxes.
”Based on two words separated by 16 others, the President asserts the independent power to impose tariffs on imports from any country, of any product, at any rate, for any amount of time. Those words cannot bear such weight.”
Zing! Surprisingly spicy writing for such a gravely serious body.
The Gorsuch concurring is quite the read, but wish more Americans internalized its final paragraph (excerpts below).
Yes, legislating can be hard and take time. And, yes, it can be tempting to bypass Congress when some pressing problem arises. But the deliberative nature of the legislative process was the whole point of its design. ...
But if history is any guide, the tables will turn and the day will come when those disappointed by today’s result will appreciate the legislative process for the bulwark of liberty it is.
I agree with Gorsuch, and I love this idea, but until the legislative branch abandons procedures that prevent the deliberation from happening in the first place, this will keep happening.
There is a balance to be struck to avoid a completely ineffectual congress but I'm not sure a legislative body biased towards action is one you would actually want. Making it easier to kill bills than pass them has a natural stabilizing effect which I think is a net good for the country.
Hmm, I read some of the decision, and now I'm not sure what to make of all of it.
When I came to the opinion from Jackson, J., I found it extremely compelling. He says this:
... But some of TWEA’s sections delegating this authority had lapsed, and “there [was] doubt as to the effectiveness of other sections.” Accordingly, Congress amended TWEA in 1941, adding the subsection that includes the “regulate ... importation” language on which the President relies today. The Reports explained Congress’s primary purpose for the 1941 amendment: shoring up the President’s ability to control foreign-owned property by maintaining and strengthening the “existing system of foreign property control (commonly known as freezing control).”
When Congress enacted IEEPA in 1977, limiting the circumstances under which the President could exercise his emergency authorities, it kept the “regulate ... importation” language from TWEA. The other two relevant pieces of legislative history—the Senate and House Reports that accompanied IEEPA—demonstrate that Congress’s intent regarding the scope of this statutory language remained the same. As the Senate Report explained, Congress’s sole objective for the “regulate ... importation” subsection was to grant the President the emergency authority “to control or freeze property transactions where a foreign interest is involved.” The House Report likewise described IEEPA as empowering the President to “regulate or freeze any property in which any foreign country or a national thereof has any interest.”
However, then I read Kavanaugh, J. who writes the following:
In 1971, President Nixon imposed 10 percent tariffs on almost all foreign imports. He levied the tariffs under IEEPA’s predecessor statute, the Trading with the Enemy Act (TWEA), which similarly authorized the President to “regulate ... importation.” The Nixon tariffs were upheld in court.
When IEEPA was enacted in 1977 in the wake of the Nixon and Ford tariffs and the Algonquin decision, Congress and the public plainly would have understood that the power to “regulate ... importation” included tariffs. If Congress wanted to exclude tariffs from IEEPA, it surely would not have enacted the same broad “regulate ... importation” language that had just been used to justify major American tariffs on foreign imports.
And I also find this compelling.
To add onto this, Roberts, C. J. says: IEEPA’s grant of authority to “regulate ... importation” falls short. IEEPA contains no reference to tariffs or duties. The Government points to no statute in which Congress used the word “regulate” to authorize taxation. And until now no President has read IEEPA to confer such power.
This seems directly contradictory to Kavanaugh, J.'s dissent! Kavanaugh, J. claims that Nixon used the word “regulate” to impose tarrifs. And apparently the word isn't just in some random other statute — Nixon did so from TWEA, the predecessor of IEEPA: when Congress enacted IEEPA in 1977 it kept the “regulate ... importation” language from TWEA. (from Jackson, J.) So the point that no President has read IEEPA to confer such power seems pretty weak, when Nixon apparently did so from TWEA.
I have no conclusion from this, but IMO both Jackson, J. and Kavanaugh, J. have pretty strong points in opposing directions.
Kavanaugh’s reasoning is that a wartime law, TWEA, can be congruent to a peacetime law, IEEPA. The rest of the court acknowledged that the President always had control of tariffs during war.
Right. Most of the news articles don't link to the decision, which is worth reading.
It's a 6-3 decision. Not close.
Here's the actual decision:
The judgment of the United States Court of Appeals for the Federal Circuit in case No. 25–250 is affirmed. The judgment of the United States District Court for the District of Columbia in case No. 24–1287 is vacated, and the case is remanded with instructions to dismiss for lack of jurisdiction.
So what does that mean in terms of action?
It means this decision [1] is now live. The vacated decision was a stay, and that's now dead.
So the live decision is now: We affirm the CIT’s holding that the Trafficking and Reciprocal Tariffs imposed by the Challenged Executive Orders exceed the authority delegated to the President by IEEPA’s text. We also affirm the CIT’s grant of declaratory relief that the orders are “invalid as contrary to law.”
"CIT" is the Court of International Trade. Their judgement [2], which was unanimous, is now live. It reads:
"The court holds for the foregoing reasons that IEEPA does not authorize any of the Worldwide, Retaliatory, or Trafficking Tariff Orders. The Worldwide and Retaliatory Tariff Orders exceed any authority granted to the President by IEEPA to regulate importation by means of tariffs. The Trafficking Tariffs fail because they do not deal with the threats set forth in those orders. This conclusion entitles Plaintiffs to judgment as a matter of law; as the court further finds no genuine dispute as to any material fact, summary judgment will enter against the United States. See USCIT R. 56. The challenged Tariff Orders will be vacated and their operation permanently enjoined."
So that last line is the current state: "The challenged Tariff Orders will be vacated and their operation permanently enjoined." Immediately, it appears.
A useful question for companies owed a refund is whether they can use their credit against the United States for other debts to the United States, including taxes.
[1] https://www.cafc.uscourts.gov/opinions-orders/25-1812.OPINIO...
[2] https://storage.courtlistener.com/recap/gov.uscourts.cit.170...
”Based on two words separated by 16 others, the President asserts the independent power to impose tariffs on imports from any country, of any product, at any rate, for any amount of time. Those words cannot bear such weight.”
Zing! Surprisingly spicy writing for such a gravely serious body.
The Gorsuch concurring is quite the read, but wish more Americans internalized its final paragraph (excerpts below).
Yes, legislating can be hard and take time. And, yes, it can be tempting to bypass Congress when some pressing problem arises. But the deliberative nature of the legislative process was the whole point of its design. ... But if history is any guide, the tables will turn and the day will come when those disappointed by today’s result will appreciate the legislative process for the bulwark of liberty it is.
I agree with Gorsuch, and I love this idea, but until the legislative branch abandons procedures that prevent the deliberation from happening in the first place, this will keep happening.
There is a balance to be struck to avoid a completely ineffectual congress but I'm not sure a legislative body biased towards action is one you would actually want. Making it easier to kill bills than pass them has a natural stabilizing effect which I think is a net good for the country.
1 reply →
Hmm, I read some of the decision, and now I'm not sure what to make of all of it.
When I came to the opinion from Jackson, J., I found it extremely compelling. He says this:
... But some of TWEA’s sections delegating this authority had lapsed, and “there [was] doubt as to the effectiveness of other sections.” Accordingly, Congress amended TWEA in 1941, adding the subsection that includes the “regulate ... importation” language on which the President relies today. The Reports explained Congress’s primary purpose for the 1941 amendment: shoring up the President’s ability to control foreign-owned property by maintaining and strengthening the “existing system of foreign property control (commonly known as freezing control).”
When Congress enacted IEEPA in 1977, limiting the circumstances under which the President could exercise his emergency authorities, it kept the “regulate ... importation” language from TWEA. The other two relevant pieces of legislative history—the Senate and House Reports that accompanied IEEPA—demonstrate that Congress’s intent regarding the scope of this statutory language remained the same. As the Senate Report explained, Congress’s sole objective for the “regulate ... importation” subsection was to grant the President the emergency authority “to control or freeze property transactions where a foreign interest is involved.” The House Report likewise described IEEPA as empowering the President to “regulate or freeze any property in which any foreign country or a national thereof has any interest.”
However, then I read Kavanaugh, J. who writes the following:
In 1971, President Nixon imposed 10 percent tariffs on almost all foreign imports. He levied the tariffs under IEEPA’s predecessor statute, the Trading with the Enemy Act (TWEA), which similarly authorized the President to “regulate ... importation.” The Nixon tariffs were upheld in court.
When IEEPA was enacted in 1977 in the wake of the Nixon and Ford tariffs and the Algonquin decision, Congress and the public plainly would have understood that the power to “regulate ... importation” included tariffs. If Congress wanted to exclude tariffs from IEEPA, it surely would not have enacted the same broad “regulate ... importation” language that had just been used to justify major American tariffs on foreign imports.
And I also find this compelling.
To add onto this, Roberts, C. J. says: IEEPA’s grant of authority to “regulate ... importation” falls short. IEEPA contains no reference to tariffs or duties. The Government points to no statute in which Congress used the word “regulate” to authorize taxation. And until now no President has read IEEPA to confer such power.
This seems directly contradictory to Kavanaugh, J.'s dissent! Kavanaugh, J. claims that Nixon used the word “regulate” to impose tarrifs. And apparently the word isn't just in some random other statute — Nixon did so from TWEA, the predecessor of IEEPA: when Congress enacted IEEPA in 1977 it kept the “regulate ... importation” language from TWEA. (from Jackson, J.) So the point that no President has read IEEPA to confer such power seems pretty weak, when Nixon apparently did so from TWEA.
I have no conclusion from this, but IMO both Jackson, J. and Kavanaugh, J. have pretty strong points in opposing directions.
Kavanaugh’s reasoning is that a wartime law, TWEA, can be congruent to a peacetime law, IEEPA. The rest of the court acknowledged that the President always had control of tariffs during war.
Jackson is a woman just fyi.
Ah thanks for clarifying.