Hard to beat Peter Harrell's take on the Court of International Trade's ruling on the section 122 tariffs --
1/ a few
Quick takes on the new Court of International Trade (CIT) ruling finding Trump's 10% Section 122 tariffs are unlawful:
1. A 2-1 panel of the CIT ruled that, when Congress passed Section 122 back in 1974 to give the President the authority to address balance-of-payments deficits, Congress intended "balance of payments deficits" to mean "balance-of-payments deficits as measured by liquidity, official settlements and the basic balance." When Trump issued Proclamation 11012 on Feb. 20, he cited the trade deficit and current account deficits. Because the trade deficit and the current account deficits are not the same as liquidity, official settlements, and the basic balance, the President's tariffs fall outside 122's scope.
2. This opinion will be appealed up to the Federal Circuit, which in recent years has been more deferential to the Executive Branch on tariffs than the CIT has been. I do not assume that the Federal Circuit will agree with the CIT, though of course the plaintiffs should understandably feel good winning at the CIT!
3. More lawsuits might be coming: The CIT issued an injunction ordering CBP to stop collecting tariffs *from several of the named plaintiffs,* and ordered CBP to refund *those plaintiffs* tariffs paid. However, the CIT did not issue a universal injunction or give relief to anyone other than the named plaintiffs. Moreover, the CIT held that only a handful of the plaintiffs who brought the suit had actual standing to sue, and dismissed most of the state plaintiffs from the suit. Other companies may well now decide to sue, though many will probably hold off while this decision winds its way through the appeals process.
4. Legislative history is back, at least at the CIT: The CIT reached its conclusion based on an extremely detailed review of the legislative history of Section 122, going through multiple House and Senate reports, as well as the predecessor bills to Section 122.
5. The dissent took a broader view of the statute, arguing that the legislative history about Congress's intent was less clear than the majority opinion found, and would have given more deference to the government's views.
6. If this opinion is upheld, all importers paying 122 tariffs should be able to get refunds, much as they are beginning to get refunds of the IEEPA tariffs that SCOTUS ruled illegal back in February.
7. If I was USTR today, I'd be feeling all the more strongly that I need to button-up my 301 tariffs. Trump's fallback tariff plan has been to (a) use 122 through late July, and then (b) transition to Section 301 tariffs thereafter. Between the SCOTUS decision against IEEPA tariffs and now this, the courts are signaling that they will take a hard look at expansive tariffs.
8. The lead private sector plaintiff here, Burlap & Barrel, is an amazing small business! Think about buying some of their (now tariff free) small-batch spices!