Lawyer: Supreme Court Timing May Come Soon After First IEEPA Liquidations
NEW YORK -- Apparel import compliance professionals more used to thinking about bills of lading and purchase orders than the major questions doctrine had their hopes raised -- and dashed -- at the annual U.S. Fashion Industry Association conference.
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USFIA Washington counsel David Spooner, speaking just before the oral argument began Nov. 5, pointed to the fact that the U.S. Court of Appeals for the Federal Circuit chose not to determine whether the International Emergency Economic Powers Act gives the president the power to impose tariffs. CAFC said that the administration choosing to infer that IEEPA gives unlimited power to tariff -- when the law never uses the word -- is a violation of the major questions doctrine.
The major questions doctrine, which was first cited in a dissent by Justice Brett Kavanaugh when he was on an appellate court, holds that an administration cannot take sweeping actions that transform the U.S. economy unless authorized by a law with plain and direct language.
"I think it's a decent chance the [appellate court] worded their opinion the way they did with an eye to the Supreme Court," Spooner said.
John Pellegrini, customs consultant for USFIA and a former attorney, threw cold water on the chatter among attendees who were hopeful as they read news updates on their phones about critical questioning of the solicitor general by Supreme Court justices.
"I'm much less optimistic that the Supreme Court" will find the use of IEEPA unconstitutional, he said. He noted that Chief Justice John Roberts and Kavanaugh both used to work in the Office of the White House Counsel (Roberts under Ronald Reagan and Kavanaugh under George W. Bush). Both men have "an expansive view of presidential authority," he said.
Pellegrini also noted that in the 7-4 decision at the appellate level, two of the judges who would have upheld the tariffs were Biden appointees.
However, Pellegrini also talked about what importers may do if the Supreme Court does end up ruling that the tariffs never should have been imposed.
The first IEEPA tariffs, of just 10%, were collected on Chinese goods in February, with Canadian and Mexican goods following in March, and global tariffs beginning in August. "Many are not liquidated yet," Pellegrini said, and the Canadian, Mexican and global tariffs probably won't be if the court rules in December or before Jan. 15. He predicted the ruling would come before the end of 2025, or in early 2026.
"I think they want to move quickly," Pellegrini said of the Supreme Court, given how quickly they scheduled the oral argument.
Pellegrini said he wonders if importers about to reach liquidation will ask CBP to delay. "I'm not sure Customs is willing to do that," he said.