{"id":6028,"date":"2025-05-24T18:53:12","date_gmt":"2025-05-24T18:53:12","guid":{"rendered":"https:\/\/usatrustedlawyers.com\/blog\/trade-court-balks-at-white-house-claim-that-tariff-orders-are-unreviewable\/"},"modified":"2025-05-24T18:53:12","modified_gmt":"2025-05-24T18:53:12","slug":"trade-court-balks-at-white-house-claim-that-tariff-orders-are-unreviewable","status":"publish","type":"post","link":"https:\/\/usatrustedlawyers.com\/blog\/trade-court-balks-at-white-house-claim-that-tariff-orders-are-unreviewable\/","title":{"rendered":"Trade Court Balks at White House Claim That Tariff Orders Are Unreviewable"},"content":{"rendered":"\n
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The U.S. Court of International Trade appeared skeptical of the Trump administration\u2019s asserted authority to unilaterally order new tariffs in a recent hearing on the president\u2019s trade orders, but questioned what type of relief they could provide to importers.<\/p>\n<\/div>\n

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On Wednesday afternoon, Judges Gary Katzmann, Timothy Reif and Jane Restani posed highly technical questions to attorneys from the Trump administration and from the Office of Oregon Attorney General Dan Rayfield, who is leading a group of states challenging executive orders that raise tariffs on products from virtually the whole world.<\/p>\n<\/div>\n

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President Donald Trump issued the orders under the International Emergency Economic Powers Act, a statute that lets the president \u201cregulate\u2026 importation\u201d to address \u201cany unusual and extraordinary threat.\u201d For his orders, Trump cited the amount of fentanyl entering the U.S. from Canada and Mexico, as well as the U.S. trade deficit.<\/p>\n<\/div>\n

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The judges offered no clear answers on when, or how, they would rule, but several lines of questioning indicated that they weren\u2019t buying federal attorneys\u2019 arguments that Trump can exercise IEEPA mostly free of judicial oversight.<\/p>\n<\/div>\n

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Here are key takeaways from the hearing:<\/p>\n<\/div>\n

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As in a prior hearing last week, the U.S. Department of Justice\u2014this time represented by Brett Shumate, the acting assistant attorney general for the DOJ\u2019s Civil Division\u2014outlined a system in which the court had little oversight over the president\u2019s use of IEEPA.<\/p>\n<\/div>\n

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Per Shumate, the court may only decide whether IEEPA grants the president the power to issue tariffs, which the administration finds to be the case. But the court cannot review whether Trump had established that rising fentanyl imports and the trade deficit are unusual and extraordinary matters, or whether the tariffs could feasibly address the issues, Shumate said.<\/p>\n<\/div>\n

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\u201cAll of that is off the table, because it is Congress\u2019s role to review the president\u2019s compliance,\u201d Shumate said. \u201cThere are a number of procedural checks on the president. He has to consult with Congress, submit reports to Congress and that report has to explain what he did, why he did it, why it complies with the statute.\u201d<\/p>\n<\/div>\n

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But the emphasis on Congress\u2019s role had Restani questioning whether the court had received a copy of the report.<\/p>\n<\/div>\n

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\u201cI don\u2019t know,\u201d Shumate said.<\/p>\n<\/div>\n

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\u201cIf there’s no report to Congress. Is this all void?\u201d she asked.<\/p>\n<\/div>\n

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\u201cNo, Your Honor. The court is not in a position where it reviews the president\u2019s compliance with IEEPA,\u201d Shumate said. \u201cThe court can only\u2026 decide what the statute means.\u201d<\/p>\n<\/div>\n

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She attempted to sum up the administration\u2019s position: \u201cNothing is so crazy or unrelated that it could be stopped by the courts. Anything is allowed. Anything crazy. Any declaration of emergency, based on some crazy thing. Any remedy, as <\/i><\/b>crazy as it could be\u2014it\u2019s all okay, because the courts can\u2019t do anything.\u201d<\/p>\n<\/div>\n

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Restani later clarified that she hadn\u2019t meant to call the executive orders crazy, but to offer an example unrelated to foodstuff, presumably, peanut butter<\/a>.<\/p>\n<\/div>\n

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But Shumate recoiled at her understanding of the administration\u2019s defense.<\/p>\n<\/div>\n

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\u201cI would not go that far, Your Honor,\u201d he said. \u201cI’ve conceded you can review the interpretive question if the president\u2013\u201d<\/p>\n<\/div>\n

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\u201cOkay, but that’s all you’ve got,\u201d Restani cut him off. \u201cAll you say the courts can do is look at the statute, but the courts cannot decide that this particular action, based on this particular declaration,n is way outside what Congress intended.\u201d<\/p>\n<\/div>\n

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What Can The Trade Court Do? And For Whom?<\/b><\/p>\n<\/div>\n

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While much of the hearing was devoted to the limits of presidential authority, the judges delved into two key procedural issues towards the end of the proceeding\u2014what type of relief they could order, if they side with the states, and which parties have established standing.<\/p>\n<\/div>\n

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Brian Marshall, the senior assistant attorney general for Oregon, suggested the court could declare the tariff orders ultra vires, <\/i>vacate the customs bulletins implementing the orders and issue a permanent injunction.<\/p>\n<\/div>\n

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\u201cA permanent injunction is necessary to remedy the state\u2019s injuries here, because the state\u2019s injuries here include situations where we are not the\u2026 importers of record,\u201d he said. \u201cWe purchase from some other importer. If that importer, three years from now gets a refund, the states aren\u2019t going to see any of that. The only way to really remedy the injury that we are facing is to provide us with an injunction.\u201d<\/p>\n<\/div>\n

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The inquiry, however, led to a question about standing, with Katzmann saying there could be an issue as to whether non-importer states should be dismissed from the case.<\/p>\n<\/div>\n

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But Marshall argued that the states, as indirect purchasers of the products, have experienced the type of financial injuries required to establish standing.<\/p>\n<\/div>\n

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\u201cThere\u2019s a clear economic logic to this,\u201d he said.<\/p>\n<\/div>\n

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Shumate later argued that, if the states won, any potential relief should be limited to the suing, importing states and shouldn\u2019t extend to their citizens. That contention drew skepticism from Restani, who referenced the states\u2019 arguments that they faced more than an import injury.<\/p>\n<\/div>\n

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\u201cI\u2019m not sure how you fashion relief short of a broad injunction,\u201d she said.<\/p>\n<\/div>\n

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\u201cAn injunction would be extremely disruptive while the president is in the middle of foreign negotiations with other countries\u2026 an injunction would completely kneecap the president at a delicate time,\u201d Shumate said.<\/p>\n<\/div>\n

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\u201cWell, if the president isn\u2019t doing something he\u2019s not allowed to do by statute\u2026 the court can\u2019t say, it\u2019ll be better politically for the president to do this, but he\u2019s not allowed to do it by statute, so therefore we allow it. I don\u2019t think we can do it that way,\u201d she said.<\/p>\n<\/div>\n

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While some tariff challengers had filed their cases directly to the trade court, other critics sought different venues<\/a>, including a stationary company that is backed by the New Civil Liberties Alliance, the same non-profit organization that helped convince the U.S. Supreme Court to overturn the doctrine of Chevron <\/i>deference.<\/p>\n<\/div>\n

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The alliance had filed their case, captioned Emily Ley Paper Inc. v. Trump<\/i>, in the Florida federal court, arguing that IEEPA cannot support duties and doesn\u2019t fall under the trade court\u2019s exclusive jurisdiction over tariff statutes. Before Wednesday\u2019s hearing, the Florida court transferred Emily Ley<\/i> to CIT, stating, among others, that IEEPA authorizes tariffs.<\/p>\n<\/div>\n

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That entire proceeding seemed to strike a sour note with the trade court.<\/p>\n<\/div>\n

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\u201cIt seemed to me that the parties got the judge there involved in merits determination when it wasn\u2019t necessary,\u201d Restani said.<\/p>\n<\/div>\n

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Marshall <\/b>was quick to agree.<\/p>\n<\/div>\n

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\u201cGood, because otherwise there\u2019d be a giant circle going on, depending upon how the decisions come out,\u201d Restani said.<\/p>\n<\/div>\n

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The trade court had previously voiced some frustration over the overlapping litigation filed across the country. During an earlier hearing also concerning the new tariffs, Katzmann stressed the importance of the case being heard in the trade court, the court with \u201cexclusive jurisdiction.\u201d<\/p>\n<\/div>\n

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