Judges at the U.S. Court of Appeals for the Federal Circuit pressed counsel for importer Blue Sky the Color of Imagination and the government during oral argument on Oct. 7 in the importer's customs classification suit on its notebooks with calendars. During the argument, Judges Alan Lourie, Raymond Chen and William Bryson grappled with whether the court is bound by its 2010 ruling in Mead v. U.S. and whether the goods are properly classified as calendars or diaries (Blue Sky The Color of Imagination v. U.S., Fed. Cir. # 24-1710).
The case against the lists 3 and 4A tariffs is unlikely to be heard by the Supreme Court or the full U.S. Court of Appeals for the Federal Circuit, and the recent decision from the Federal Circuit upholding the tariffs likely gives the Trump administration greater confidence in using tariff authorities other than the International Emergency Economic Powers Act, various attorneys told us.
The U.S. Court of Appeals for the Federal Circuit on Sept. 25 upheld the Lists 3 and 4A Section 301 tariffs. CAFC Judges Todd Hughes and Alan Lourie, along with Judge Rodney Gilstrap of the Eastern District of Texas, who was sitting by designation, said the tariffs were a valid exercise of the government's authority under Section 307(a)(1)(C), which lets the U.S. Trade Representative "modify or terminate any action" taken under Section 301, where such action is "no longer appropriate."
The U.S. Court of Appeals for the Federal Circuit on Sept. 25 upheld the lists 3 and 4A Section 301 tariffs on China, finding them to be a valid exercise of authority under Section 307(a)(1)(C). CAFC Judges Todd Hughes and Alan Lourie, along with Eastern District of Texas Judge Rodney Gilstrap, sitting by designation, held that the statute's permission to "modify" Section 301 action where it's "no longer appropriate," allows the U.S. trade representative to ramp up the tariffs if the original action is "insufficient" to achieve its "stated purpose."
The U.S. filed its opening brief at the Supreme Court on Sept. 19 in the lead cases on the legality of tariffs imposed under the International Emergency Economic Powers Act. Solicitor General D. John Sauer said the reciprocal tariffs and tariffs on China, Canada and Mexico meant to stop the flow of fentanyl are a valid exercise of IEEPA, adding that the tariffs are a proper expression of presidential policymaking in emergency situations.
The Supreme Court on Sept. 9 agreed to hear two cases on the legality of tariffs imposed under the International Emergency Economic Powers Act and to do so on an expedited basis. The court set a briefing schedule that would conclude by Oct. 30 and set argument for the first week of November (Donald J. Trump v. V.O.S. Selections, U.S. 25-250) (Learning Resources v. Donald J. Trump, U.S. 24-1287).
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The U.S. Court of Appeals for the Federal Circuit on Aug. 29 said President Donald Trump exceeded his authority under the International Emergency Economic Powers Act by imposing the reciprocal tariffs and tariffs on China, Canada and Mexico to combat the flow of fentanyl. Declining to address whether IEEPA categorically provides for tariffs, though spilling much ink on the topic, a majority of the court held that IEEPA doesn't confer unbounded tariff authority (V.O.S. Selections v. Donald J. Trump, Fed. Cir. #s 25-1812, -1813).
While many attorneys believe that one of the cases on the legality of President Donald Trump's tariffs is on a collision course with the Supreme Court, questions remain about exactly when the high court will review the case and in what form. One possibility would see the lead appeal, V.O.S. Selections v. Trump, which currently sits before the U.S. Court of Appeals for the Federal Circuit, head to the Supreme Court's emergency, or "shadow," docket.
Importer Cozy Comfort filed its opening brief at the U.S. Court of Appeals for the Federal Circuit on Aug. 25, arguing that the Court of International Trade was wrong to find that the company's product, The Comfy, is a pullover and not a blanket (Cozy Comfort v. United States, Fed. Cir. # 25-1889).