Trade Attorneys Optimistic About Odds of SCOTUS Overturning IEEPA Tariffs
Following the Supreme Court's oral argument in the lead cases on whether the president can use the International Emergency Economic Powers Act to impose tariffs, various trade lawyers speculated that the high court now appears poised to strike down the tariffs.
Sign up for a free preview to unlock the rest of this article
Communications Daily is required reading for senior executives at top telecom corporations, law firms, lobbying organizations, associations and government agencies (including the FCC). Join them today!
Attorneys at ArentFox Schiff recently said they believe the nine Supreme Court justices are split "3-3-3."
The attorneys said they believe Justices Clarence Thomas, Samuel Alito and Brett Kavanaugh "appear inclined to uphold the tariffs," while Justices Elena Kagan, Sonya Sotomayor and Ketanji Brown Jackson "appear inclined to invalidate them." The remaining three, Justices John Roberts, Amy Coney Barrett and Neil Gorsuch, "are undecided," the attorneys speculated.
Barrett and Gorsuch "showed skepticism toward the government’s position (albeit, for different reasons) while probing textual and structural paths that could sustain narrower regulatory tools," the ArentFox attorneys said. Meanwhile, Roberts "suggested that he sees the tariffs as violating the major questions doctrine, but it is difficult to gather his position because he asked so few questions."
Meanwhile, other attorneys were more bullish in their projections. Speaking on a webinar hosted by Diaz Trade Law, trade litigator David Craven said he thinks the court will vote 7-2 in favor of overturning the tariffs. Also noting that the three liberal justices most likely will vote against the IEEPA tariffs, Craven said he believes that Barrett and Roberts will "decide in favor of the importers." However, he clarified that Roberts will vote for the importers, "but more along the lines of institutionalization" and the major questions doctrine, rather than on more strictly textualist grounds.
Craven added that he thinks Alito and Thomas will vote in favor of the Trump administration, leaving Kavanaugh and Gorsuch undecided. Craven expects Kavanaugh to follow Roberts' "institutionalist" path and vote with the importers, and that Gorsuch will ultimately side with the importers as well.