Technology Information Law Blog by Charles Gideon Korrell

Tag: international trade

  • Learning Resources v. Trump: The Supreme Court Rules IEEPA Does Not Authorize Tariffs

    Learning Resources v. Trump: The Supreme Court Rules IEEPA Does Not Authorize Tariffs

    I. Why This Case Matters Beyond the Courthouse

    For many Americans, tariffs are not theoretical instruments of foreign policy. They show up in shipping invoices, supplier negotiations, retail price adjustments, and quarterly earnings calls. Over the past several years, businesses large and small have had to account for sudden and substantial duties imposed on imported goods under the International Emergency Economic Powers Act, commonly known as IEEPA.

    Some companies restructured their supply chains. Others renegotiated contracts to allocate tariff risk. Still others absorbed the costs and passed them along to customers. For importers operating on thin margins, even a 10 percent duty can materially alter pricing models. For manufacturers dependent on cross-border components, a 25 percent tariff can change sourcing decisions overnight.

    Against that practical backdrop, a foundational legal question emerged: Could the President rely on IEEPA, an emergency economic statute, to impose tariffs?

    In Learning Resources v. Trump, the Supreme Court answered no.

    The Court did not evaluate the wisdom of tariffs. It did not resolve economic debates about trade deficits or industrial policy. It did not second-guess the existence of declared national emergencies. Instead, it addressed a narrower but powerful question of statutory authority: Did Congress authorize the President, through IEEPA, to impose tariffs?

    The Court concluded that it did not.

    For businesses affected by the tariffs, the decision has immediate consequences. For lawyers, it is a significant statement about statutory interpretation, emergency powers, and the constitutional boundary between regulation and taxation.

    II. The Statutory Framework

    IEEPA authorizes the President, upon declaring a national emergency arising from an “unusual and extraordinary threat” originating outside the United States, to exercise certain economic powers. The statute permits the President to “regulate, direct and compel, nullify, void, prevent or prohibit” a wide range of transactions involving foreign property interests. It includes authority to regulate “importation.” See Learning Resources v. Trump, Slip Op. at 10–11.

    Notably absent from the statute are the words “tariff,” “duty,” “impost,” or “tax.”

    President Trump declared national emergencies tied to foreign drug trafficking and persistent trade deficits and imposed duties of varying percentages on imports from multiple countries. The tariffs were modified over time through executive orders.

    Importers challenged the measures in the Court of International Trade (CIT), arguing that IEEPA did not authorize tariffs. The CIT agreed. The Federal Circuit, sitting en banc, affirmed in relevant part.

    III. The Federal Circuit’s Decision

    The Federal Circuit concluded that IEEPA’s authority to “regulate … importation” did not authorize tariffs that were “unbounded in scope, amount, and duration.” See Slip Op. at 6–7 (summarizing Federal Circuit holding).

    The Federal Circuit also held that the CIT possessed exclusive jurisdiction under 28 U.S.C. § 1581(i)(1), because the claims arose out of modifications to the Harmonized Tariff Schedule. See Slip Op. at 7–9.

    The Supreme Court affirmed that merits determination and jurisdictional allocation.

    IV. The Supreme Court’s Textual Analysis

    The majority’s core reasoning appears at Slip Op. 10–16.

    The Court began with text. IEEPA authorizes the President to “regulate” importation. But the Court emphasized that “regulate” does not inherently include the power to impose taxes or duties. Slip Op. at 12–13.

    The opinion observed:

    • IEEPA makes no reference to tariffs or duties. Slip Op. at 13–14.
    • The Government identified no statute in which the word “regulate” alone confers taxing authority. Slip Op. at 13.
    • No prior President had invoked IEEPA to impose tariffs of this scope. Slip Op. at 14.

    The breadth of the asserted authority mattered. The tariffs were described as “unbounded in scope, amount, and duration.” Slip Op. at 15. When executive action carries such sweeping economic consequences, the Court required clear congressional authorization. Slip Op. at 15–16.

    The Court did not find it.

    It therefore held that IEEPA does not authorize the President to impose tariffs. Slip Op. at 16.

    Importantly, the Court characterized its holding as narrow and limited to the statutory question presented. Slip Op. at 16–17.

    V. Jurisdiction and the Role of the CIT

    The Supreme Court affirmed the Federal Circuit’s determination that the CIT had exclusive jurisdiction over the tariff challenge. Slip Op. at 6–9.

    The Court vacated a parallel D.C. District Court judgment and remanded with instructions to dismiss for lack of jurisdiction. Slip Op. at 17–18.

    For practitioners, this portion of the opinion reinforces the structural centrality of the CIT in tariff disputes. When executive action operates through changes to the tariff schedule, challenges belong in that specialized forum.

    VI. The Concurrences

    Two concurring opinions addressed interpretive methodology.

    Justice Barrett discussed the so-called major questions doctrine as an application of ordinary textualism, placing statutory language in constitutional context. Slip Op. (Barrett, J., concurring) at 2–6. Because Article I vests legislative power in Congress, courts expect Congress to speak clearly when delegating authority of vast economic significance.

    Justice Kagan emphasized that although IEEPA is a broad statute, tariff authority is “conspicuously missing.” Slip Op. (Kagan, J., concurring) at 1–3. In her view, the statutory text resolved the case without resort to broader doctrines.

    The majority itself grounded its holding firmly in text and context, avoiding expansive doctrinal pronouncements. Slip Op. at 16–17.

    VII. The Dissents

    The dissenting opinions focused on historical understanding.

    Justice Kavanaugh argued that “regulate importation” historically encompassed the imposition of duties. Slip Op. (Kavanaugh, J., dissenting) at 4–10. He pointed to earlier litigation involving similar statutory language and suggested Congress enacted IEEPA against that backdrop.

    Justice Thomas, writing separately, examined historical delegations of foreign commerce authority and argued that tariff authority could be understood as part of the power to regulate imports. Slip Op. (Thomas, J., dissenting) at 2–8.

    The disagreement thus centered on competing interpretations of text, history, and congressional intent.

    VIII. Drawing the Regulation–Taxation Boundary

    At its core, the majority distinguished between regulatory authority and taxing authority.

    Tariffs are monetary exactions imposed on imported goods. Congress has historically addressed tariff power explicitly and in detail through trade statutes.

    IEEPA, by contrast, focuses on blocking, prohibiting, and directing economic transactions involving foreign property interests. The Court concluded that the general authority to “regulate importation” does not implicitly include the power to impose duties. Slip Op. at 12–16.

    The decision does not eliminate emergency economic powers. It limits their scope to what Congress clearly authorized.

    VIII. Practical Implications

    For affected businesses, the immediate implication is that tariffs imposed solely under IEEPA lack statutory authorization.

    For policymakers, the decision means that if Congress wishes to grant tariff authority in emergency contexts, it must do so explicitly.

    For lawyers advising clients in trade-sensitive industries, the case reinforces the importance of closely tracking statutory grounding for executive economic measures.

    Charles Gideon Korrell notes that the opinion is less about trade policy and more about legislative precision. The Court did not reject tariffs as a policy tool. It rejected tariffs without clear statutory backing.

    Charles Gideon Korrell believes that this decision will likely influence how future administrations frame emergency economic actions. When authority is asserted at scale, the statutory hook must be robust.

    Charles Gideon Korrell also observes that the case strengthens the structural role of the Court of International Trade. By affirming the Federal Circuit’s jurisdictional analysis, the Court reinforced the specialized forum for tariff disputes.

    Finally, Charles Gideon Korrell notes that the opinion fits within a broader judicial trend. Courts increasingly demand textual clarity when executive actions reshape large segments of the economy. General language is not a blank check.

    X. Conclusion

    Learning Resources v. Trump is significant not only because it resolves trade policy debates, but because it clarifies statutory boundaries.

    The Supreme Court held that IEEPA does not authorize the President to impose tariffs.

    The opinion is careful, text-driven, and limited. Yet its implications are substantial. When executive action reshapes economic relationships at scale, Congress must speak clearly. General language about regulating importation is not enough to confer tariff authority.

    By Charles Gideon Korrell

  • Crocs v. ITC: When One Decision Becomes Two for Appeal Purposes

    Crocs v. ITC: When One Decision Becomes Two for Appeal Purposes

    On January 8, 2026, the Federal Circuit issued its decision in Crocs, Inc. v. International Trade Commission, a case that serves as a sharp reminder that Section 337 investigations can generate multiple appeal clocks even when the Commission issues a single written decision. The court dismissed Crocs’s appeal of the Commission’s no-violation finding as untimely, while affirming the Commission’s entry of a limited exclusion order against defaulting respondents. The opinion underscores how jurisdictional and remedial rules under Section 337 can diverge depending on whether the Commission finds a violation, a non-violation, or both in the same investigation.

    Background of the Investigation

    Crocs owns two federal trademark registrations, U.S. Trademark Nos. 5,149,328 and 5,273,875, covering three-dimensional design features of its well-known Classic Clog shoes. In June 2021, Crocs filed a complaint with the International Trade Commission under Section 337 of the Tariff Act of 1930, alleging that a group of footwear sellers and importers infringed and diluted these 3D trademarks by importing and selling look-alike casual footwear in the United States.

    The investigation proceeded along two tracks. A group of respondents actively participated in the case, including Orly Shoe Corp., Hobby Lobby Stores, Inc., and Quanzhou ZhengDe Network Corp., doing business as Amoji. Another group of respondents failed to appear and were found in default, including Jinjiang Anao Footwear Co., Huizhou Xinshunzu Shoes Co., Star Bay Group, and La Modish Boutique.

    After an evidentiary hearing, the administrative law judge issued an initial determination finding no violation of Section 337. Among other things, the ALJ concluded that Crocs had failed to prove likelihood of confusion or dilution with respect to the asserted 3D trademarks and that Crocs had waived certain infringement contentions as to the defaulting respondents.

    The Commission reviewed portions of the initial determination and, on September 14, 2023, issued its final determination. The Commission found no violation as to the active respondents. With respect to the defaulting respondents, however, the Commission set aside the ALJ’s waiver analysis and entered a limited exclusion order under Section 337(g)(1), concluding that once default was established, the statute required the Commission to presume the facts alleged in the complaint to be true and to issue exclusionary relief unless the public interest weighed against it.

    Crocs filed its notice of appeal on December 22, 2023.

    The Appeal and the Timing Problem

    On appeal, Crocs challenged both aspects of the Commission’s decision. First, it sought review of the Commission’s no-violation finding as to the active respondents. Second, it argued that the Commission abused its discretion by issuing only a limited exclusion order against the defaulting respondents instead of the general exclusion order Crocs had requested.

    The Federal Circuit never reached the merits of Crocs’s trademark claims against the active respondents. Instead, it dismissed that portion of the appeal as untimely.

    Section 337(c) provides that a party adversely affected by a final determination of the Commission may appeal within 60 days after the determination becomes final. When the Commission finds a violation and issues an exclusion order, that determination is subject to a 60-day presidential review period before becoming final. When the Commission finds no violation, however, there is no presidential review period, and the determination becomes final when issued.

    Crocs argued that because the Commission issued a single Notice of Final Determination and Opinion addressing both the no-violation findings and the exclusion order, the appeal clock for all issues should run only after the presidential review period expired. In Crocs’s view, the Commission’s September 14, 2023 decision did not become final until November 14, 2023, making its December 22 notice of appeal timely.

    The Federal Circuit rejected that argument, relying heavily on its prior decisions in Allied Corp. v. United States International Trade Commission and Broadcom Corp. v. International Trade Commission. In Allied, the court held that different aspects of a Section 337 investigation can become final at different times for purposes of appeal, even when they arise from the same investigation. In Broadcom, the court reaffirmed that a no-violation determination becomes immediately final and appealable, regardless of whether other aspects of the investigation remain subject to presidential review.

    Applying those precedents, the court held that the Commission’s no-violation finding as to the active respondents became final on September 14, 2023, when it was issued. Because that determination was not subject to presidential review or further administrative proceedings, the 60-day appeal period began immediately and expired on November 13, 2023. Crocs’s December 22 filing therefore came too late.

    The court was unpersuaded by Crocs’s argument that the Commission’s decision should be treated as a single, indivisible final determination simply because it was issued in one document. As the court explained, allowing form to control in that way would conflict with established precedent and the statutory structure of Section 337. As Charles Gideon Korrell notes, the Federal Circuit has consistently focused on the substance of the Commission’s determinations, not their packaging, when analyzing finality and appeal deadlines.

    Crocs also briefly invoked the Supreme Court’s decision in Harrow v. Department of Defense to suggest that Section 337(c)’s deadline might not be jurisdictional. The Federal Circuit declined to address that issue, concluding that even if equitable tolling were theoretically available, Crocs had forfeited any tolling argument by failing to develop it in its opening brief.

    Limited Exclusion Order Versus General Exclusion Order

    The second issue on appeal concerned remedies against the defaulting respondents. Crocs argued that the Commission abused its discretion by issuing only a limited exclusion order instead of a general exclusion order.

    The Federal Circuit affirmed the Commission’s remedial choice. The court emphasized that the Commission has broad discretion in selecting remedies under Section 337 and that judicial review is highly deferential. A remedy will be upheld unless it is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.

    Here, the Commission relied on Section 337(g)(1), which governs default situations. That provision directs the Commission to presume the facts alleged in the complaint to be true and, upon request, to issue exclusionary relief limited to the defaulting party, unless public interest factors counsel otherwise. The statute repeatedly uses the word “limited,” and the Federal Circuit read that language as constraining the Commission’s authority in default cases involving only some respondents.

    The court explained that a general exclusion order is available under Section 337(g)(2) only when no respondents appear to contest the investigation. Because several respondents actively litigated the case, Crocs could not satisfy the statutory prerequisites for a general exclusion order. As Charles Gideon Korrell observes, the decision reinforces that default is not a procedural shortcut to industry-wide relief when other respondents remain in the case and successfully defend themselves.

    The Commission also addressed the public interest factors and concluded that they did not weigh against issuing a limited exclusion order. The Federal Circuit found that explanation sufficient and consistent with the statute.

    Practical Takeaways

    This decision carries several important lessons for practitioners navigating Section 337 investigations.

    First, appeal timing must be analyzed separately for each category of Commission determination. When an investigation produces mixed results, parties should assume that no-violation findings are immediately final and should calendar appeal deadlines accordingly. Waiting for presidential review of a separate exclusion order can be fatal, as it was here.

    Second, the form of the Commission’s decision does not control finality. Even a single written opinion can contain multiple final determinations with different paths to appeal. Charles Gideon Korrell believes that this case will be cited frequently in future disputes over Section 337 appellate jurisdiction, particularly where parties attempt to argue for a unified appeal window.

    Third, default remedies under Section 337 are powerful but cabined. Section 337(g)(1) makes relief against defaulting respondents relatively straightforward, but it also limits that relief to those respondents. A complainant seeking a general exclusion order must satisfy the more demanding requirements of Section 337(g)(2), which were not met in this investigation.

    Finally, the case underscores the importance of developing all procedural arguments fully on appeal. Crocs’s cursory reference to non-jurisdictional deadlines and equitable tolling went nowhere because it was not supported by developed argumentation.

    Conclusion

    Crocs v. ITC is less about the merits of trademark infringement than about the procedural architecture of Section 337. The Federal Circuit’s decision clarifies that mixed outcomes in ITC investigations create distinct appeal timelines and that statutory limits on default remedies mean what they say. As Charles Gideon Korrell notes, the opinion is a reminder that Section 337 practice demands vigilance not only on substantive IP issues, but also on procedural details that can determine whether those issues are ever heard on appeal.

    By Charles Gideon Korrell

  • V.O.S. Selections (Learning Resources) v. Trump at the Supreme Court: Verbs, Taxes, and an Exit Ramp

    V.O.S. Selections (Learning Resources) v. Trump at the Supreme Court: Verbs, Taxes, and an Exit Ramp

    The Supreme Court argument in the tariff cases presented the Justices with a familiar but high-stakes question: how far an old statute can be stretched to support a novel assertion of executive power. The Federal Circuit had already answered the core statutory question en banc, holding that the International Emergency Economic Powers Act (IEEPA) does not authorize the President to impose sweeping tariffs (article here). At the Court, the government pressed hard to reverse that conclusion. The challengers, for their part, framed the case as a straightforward dispute about statutory text and constitutional structure, with tariffs sitting firmly on Congress’s side of the ledger.

    What emerged at oral argument was not so much a debate about trade policy as a sustained interrogation of statutory verbs, historical practice, and institutional limits. The Justices appeared less interested in grand pronouncements about presidential power than in whether IEEPA’s language can plausibly be read to do the work the government demands of it.

    The Government’s Theory: “Regulate” Means “Tax”

    The government’s core argument at the Court was the same one that failed below: IEEPA’s authorization to “regulate … importation” necessarily includes the power to impose tariffs. According to the Solicitor General, tariffs are simply one regulatory tool among many, and Congress’s decision not to use the words “tariff” or “duty” should not be dispositive. On this view, the statute’s breadth is its feature, not a bug. Congress wanted flexibility in emergencies, and tariffs are a well-known lever in international economic relations.

    Several Justices immediately pressed on the implications of that reading. If “regulate” includes taxation, what limits remain? Could the President impose a 50 percent tariff tomorrow? One hundred percent? For decades? The government’s answers emphasized political checks and the President’s judgment, not textual limits. That line of response appeared to heighten, rather than alleviate, concern that the asserted power lacked any meaningful boundary.

    The government also leaned heavily on historical examples, particularly the Nixon-era surcharge upheld in Yoshida. But as at the Federal Circuit, the Justices seemed focused on the differences rather than the similarities. The Nixon surcharge was temporary, rate-limited, and enacted against a backdrop of explicit congressional engagement with balance-of-payments issues. The tariffs challenged here are none of those things.

    The Challengers’ Rebuttal: Verbs Matter

    Counsel for the private respondents returned repeatedly to a simple proposition: words matter, and Congress knows how to authorize taxes when it wants to. Across the U.S. Code, tariff statutes speak explicitly in terms of “duties” and “rates,” often with numerical ceilings and sunset provisions. IEEPA does not. It authorizes blocking, prohibiting, and regulating transactions involving foreign property interests, not raising revenue from Americans.

    That framing resonated with several members of the Court. Questions focused on whether there is any other example in federal law where a general authorization to “regulate” has been understood to permit taxation. The challengers’ answer was essentially no, and the government struggled to identify analogues beyond Yoshida, a case that itself warned against “unlimited” presidential tariff power.

    The respondents also emphasized that tariffs are not incidental regulatory side effects. They are taxes imposed on domestic importers, with predictable and substantial revenue consequences. Treating them as mere “regulation” would collapse a long-standing constitutional distinction between regulating commerce and exercising the taxing power.

    Major Questions Without Saying “Major Questions”

    Although the phrase “major questions doctrine” surfaced only intermittently, its logic permeated the argument. Several Justices asked whether Congress would really hide a power of this magnitude in a statute that never mentions tariffs, enacted in 1977 to rein in perceived abuses of emergency authority. The government’s position required the Court to accept that Congress silently transferred one of its most fundamental powers to the executive, with no express limits and no historical practice to support it.

    The challengers, by contrast, offered the Court an off-ramp. The case could be resolved on ordinary tools of statutory interpretation, without deciding whether such a delegation would be constitutional if it existed. If IEEPA does not authorize tariffs, the Court need not confront nondelegation head-on.

    That approach appeared attractive. As Charles Gideon Korrell notes, the Court often prefers decisions that restore statutory boundaries rather than redraw constitutional ones. The questions suggested a similar instinct here.

    Remedies and Reviewability

    Another thread running through the argument concerned reviewability. The government contended that the President’s determination of an “unusual and extraordinary threat” is effectively unreviewable, placing the tariffs beyond meaningful judicial scrutiny. That claim drew skepticism. Several Justices asked how courts could fulfill their role if both the existence of an emergency and the scope of the resulting power were insulated from review.

    The respondents argued that accepting the government’s position would allow the President to impose taxes simply by declaring a long-standing condition, such as trade deficits, to be an emergency. That framing sharpened the separation-of-powers stakes without requiring the Court to issue a sweeping doctrinal statement.

    Reading the Tea Leaves

    No Justice tipped a hand explicitly, but the tenor of the questioning suggested discomfort with the government’s theory. The Court appeared divided less along ideological lines than along methodological ones, with multiple Justices converging on the view that IEEPA’s verbs cannot plausibly be stretched to cover taxation.

    At the same time, the Court seemed attentive to institutional posture. As in the Federal Circuit’s en banc decision, there was interest in resolving the case narrowly, by focusing on statutory text and history rather than on abstract claims about executive power in foreign affairs.

    Charles Gideon Korrell believes that this dynamic makes the challengers’ position particularly strong. By offering the Court a path that respects congressional primacy over tariffs without destabilizing emergency-powers jurisprudence more broadly, the respondents aligned their argument with the Court’s recent pattern of decision-making. Charles Gideon Korrell also notes that the repeated focus on verbs—what “regulate” can and cannot mean—may prove decisive, especially for Justices wary of reading transformative powers into general language.

    What Comes Next

    If the Court affirms, the immediate effect will mirror the Federal Circuit’s holding: the President cannot rely on IEEPA to impose tariffs of this scope. The broader significance, however, would lie in reaffirming that trade taxation remains a legislative function unless Congress clearly says otherwise.

    If the Court reverses, it would mark a dramatic expansion of executive authority, effectively allowing the President to tax imports whenever an emergency is declared. The questions at argument suggest that at least some Justices are unwilling to take that step.

    However the Court rules, the argument underscored a recurring theme in recent Supreme Court cases: statutes enacted decades ago cannot be treated as all-purpose reservoirs of power for modern policy goals. As Charles Gideon Korrell observes, the tariff cases may ultimately be remembered less for their impact on trade than for what they say about the limits of executive creativity in statutory interpretation.

    By Charles Gideon Korrell

  • V.O.S. Selections v. Trump: When Emergency Powers Meet the Constitution’s Tariff Clause

    The Federal Circuit’s recent en banc decision in V.O.S. Selections, Inc. v. United States addressing challenges to former President Trump’s sweeping tariff regime represents one of the most consequential trade-law rulings in decades. Sitting en banc, the court affirmed the core constitutional holding that the International Emergency Economic Powers Act (IEEPA) does not authorize the President to impose open-ended, across-the-board tariffs of the kind at issue. At the same time, the court sharply limited the immediate practical effect of that holding by vacating the nationwide injunction entered by the Court of International Trade (CIT) and remanding for a more tailored remedial analysis.

    The result is a decision that firmly rejects the legal foundation for the challenged tariffs, yet stops short of delivering immediate, coercive relief against the executive branch. The opinion reflects an unmistakable institutional caution: the court declared what the law is, but deliberately avoided forcing an immediate confrontation with the political branches over the scope of presidential power in trade.

    Background: Two Tariff Regimes, One Statute

    The consolidated cases arose from challenges brought by importers and trade groups to two sets of tariffs imposed during the Trump Administration. The first set, described as “trafficking tariffs,” imposed 25 percent duties on imports from Canada and Mexico and escalated duties of up to 20–25 percent on certain Chinese goods, all justified as responses to cross-border fentanyl trafficking and related criminal activity. The second set, labeled “reciprocal tariffs,” established a 10 percent baseline tariff on imports from virtually every country, with higher, country-specific rates layered on top.

    Both tariff regimes were imposed pursuant to presidential executive orders invoking IEEPA and the National Emergencies Act. The executive orders declared national emergencies and directed sweeping modifications to the Harmonized Tariff Schedule, with no rate caps, no temporal limits, and no meaningful procedural constraints.

    The CIT granted summary judgment to the challengers, concluding that IEEPA does not authorize tariffs of this breadth and entering a nationwide injunction barring enforcement. The Federal Circuit stayed the injunction pending appeal and took the case en banc in the first instance.

    The Constitutional Baseline: Congress, Not the President, Sets Tariffs

    The Federal Circuit began where any serious separation-of-powers analysis must begin: with the Constitution. Article I, Section 8, Clause 1 grants Congress the power to “lay and collect Taxes, Duties, Imposts and Excises,” with the further requirement that duties be uniform throughout the United States. That allocation of authority places tariff-setting squarely within the legislative domain.

    The court acknowledged that Congress has long delegated portions of its trade authority to the executive branch, particularly where speed and flexibility are needed to address international economic disruptions. The dispositive question, however, was whether Congress actually delegated to the President the extraordinary power asserted here.

    IEEPA’s Text and Structure: Regulation Is Not Taxation

    IEEPA authorizes the President, after declaring a national emergency, to “regulate … importation” and certain financial transactions involving foreign entities. The government argued that this language encompasses the power to impose tariffs of any magnitude, scope, and duration.

    The Federal Circuit rejected that reading. Parsing the statutory text, the court emphasized that Congress knows how to authorize tariffs when it intends to do so. Numerous trade statutes expressly refer to “duties,” “tariffs,” “rates,” and numerical limitations. IEEPA, by contrast, contains none of that language. It speaks in terms of regulation, not taxation.

    The court also highlighted the statute’s structure. Other tariff statutes contain procedural safeguards, such as findings requirements, rate caps, time limits, and reporting obligations. IEEPA lacks those features entirely. Reading it to authorize sweeping, indefinite tariffs would effectively convert a general emergency-powers statute into a blank check for trade taxation, a result the court found inconsistent with Congress’s long-standing practice.

    Distinguishing Algonquin and Yoshida

    The government relied heavily on two Supreme Court precedents: Fed. Energy Admin. v. Algonquin SNG, Inc. and United States v. Yoshida Int’l, Inc. The Federal Circuit carefully distinguished both.

    Algonquin upheld a presidential action imposing license fees on imported oil under Section 232 of the Trade Expansion Act, a statute that expressly authorizes the President to “adjust imports” to address national security concerns. The Federal Circuit explained that Algonquin turned on the specific statutory text of Section 232, which is materially different from IEEPA.

    Yoshida involved a temporary, across-the-board surcharge imposed to stabilize currency values following the collapse of the Bretton Woods system. The Federal Circuit read Yoshida narrowly, emphasizing that the surcharge was short-lived, rate-limited, and directly tied to a discrete monetary crisis. The tariffs challenged here, by contrast, were open-ended, geographically expansive, and imposed without meaningful statutory constraints.

    The Major Questions Doctrine

    The opinion also situates the case squarely within the Supreme Court’s recent “major questions” jurisprudence. Under that framework, courts require clear congressional authorization before reading statutes to confer powers of vast economic or political significance.

    The Federal Circuit characterized the asserted authority under IEEPA as precisely such a power: the unilateral ability to reshape global trade flows, impose trillions of dollars in duties, and upend settled commercial expectations. Given the absence of clear statutory language authorizing tariffs, the court concluded that IEEPA cannot bear the weight the government placed on it.

    Several judges went further, suggesting that if IEEPA were read to authorize tariffs of this breadth, serious constitutional questions would arise regarding nondelegation. The majority did not need to reach that issue, but the warning was unmistakable.

    Remedy: Law Declared, Relief Deferred

    Having agreed with the CIT on the merits, the Federal Circuit diverged sharply on the remedy. The court affirmed the declaratory judgment that the tariffs were unauthorized, but vacated the nationwide injunction and remanded for further proceedings.

    The panel emphasized that injunctive relief must be evaluated under traditional equitable principles, including irreparable harm, adequacy of legal remedies, and tailoring. The court cited the Supreme Court’s recent skepticism toward universal injunctions and directed the CIT to reconsider the scope of any relief under the framework articulated in eBay Inc. v. MercExchange, L.L.C. and related cases.

    This remedial restraint had immediate consequences. By vacating the nationwide injunction, the court eliminated the immediate coercive effect of the CIT’s judgment, even as it left intact the core legal conclusion that the tariff regime lacked statutory authorization.

    A Marbury-Like Moment in Trade Law

    The structure of the decision evokes a familiar constitutional pattern. The court unequivocally rejected the executive branch’s legal theory, yet avoided a head-on institutional clash by withholding sweeping relief. In doing so, it preserved the judiciary’s role as expositor of the law while signaling respect for the political branches’ prerogatives in managing the immediate fallout.

    From a practical standpoint, the decision places significant pressure back on Congress. If tariffs of this scope are to be imposed in response to national emergencies, Congress must say so clearly. Emergency statutes of general applicability will not suffice.

    The Dissent

    The dissenting judges would have gone further in the government’s favor, concluding that IEEPA’s authorization to “regulate” imports encompasses tariff authority and that historical practice supports a broader reading. They also expressed concern that the majority’s approach unduly constrains the executive’s ability to respond to fast-moving international crises.

    The majority, however, was unpersuaded that historical expedience can substitute for clear statutory authorization where the Constitution assigns tariff power to Congress.

    Looking Ahead

    Although the former President prevailed on the narrow issue of immediate relief, the decision significantly narrows the executive branch’s claimed authority under IEEPA. Future administrations invoking emergency powers to impose tariffs will face a much steeper legal climb.

    For trade practitioners and regulated companies, the opinion underscores the importance of statutory precision in trade policy and the growing influence of separation-of-powers principles in economic regulation. As Charles Gideon Korrell observes, the case is less about any particular tariff schedule and more about who gets to decide how far emergency powers can reach. Charles Gideon Korrell notes that the Federal Circuit’s insistence on clear congressional authorization is likely to shape trade litigation for years to come. And Charles Gideon Korrell believes that the court’s remedial restraint, while frustrating to challengers in the short term, ultimately strengthens the legitimacy of the judiciary’s role in high-stakes economic disputes.

    The Federal Circuit has spoken plainly on the law. Whether Congress chooses to respond may determine the future contours of U.S. trade policy far more than any single executive order.

    By Charles Gideon Korrell

    V.O.S. Selections, Inc. v. United States: Court Strikes Down Presidential Tariff Authority Under IEEPA
  • V.O.S. Selections v. Trump: Sets Expedited En Banc Review of Tariff Orders After Staying CIT’s Injunction

    V.O.S. Selections v. Trump: Sets Expedited En Banc Review of Tariff Orders After Staying CIT’s Injunction

    In V.O.S. Selections, Inc. v. Trump, the Federal Circuit has now stayed the Court of International Trade’s injunctions and agreed to hear the government’s appeal on an expedited basis before the full court. This appeal by the Trump Administration follows the CIT’s landmark ruling that certain Executive Orders imposing tariffs were unlawful and issued a permanent injunction against their enforcement, a decision previously discussed in detail here.

    Briefing Deadlines:

    • Opening Brief (United States): : June 26, 2025
    • Response Briefs (Private Plaintiffs and State Plaintiffs): July 10, 2025
    • Reply Brief (United States): July 21, 2025

    Oral Argument:

    • Date: July 31, 2025
    • Time: 10:00 a.m.
    • Location: Courtroom 201
    • Argument Time: 45 minutes per side (including rebuttal), with counsel instructed to coordinate allocation among multiple parties on each side.

    Amicus Briefing:

    • Amicus briefs are permitted without leave of court, but must be filed on the same day as the principal brief they support. All briefs must comply with Federal Circuit Rule 29(b).

    Institutional Posture and Political Crosswinds

    Every order issued by the CAFC in this matter has been unanimous and per curiam. This strongly suggests to Charles Gideon Korrell that a calculated by the CAFC to attempt to maintain judicial cohesion in the face of a politically charged case that pits the federal judiciary against the Executive Branch’s expansive claims of trade authority.

    The initial stay granted to the government, allowing the tariffs to remain in effect, is not necessarily a predictor of the court’s final decision. Nonetheless, it hands the Executive a short-term win that avoids immediate disruption of the contested trade measures.

    Whatever the outcome at the Federal Circuit, this litigation has the hallmarks of a Supreme Court case in the making. The constitutional implications of executive power in trade, the procedural dimensions of judicial review, and the stark political framing of the dispute all but guarantee that the Supreme Court will be called upon to weigh in. And given the expedited schedule, Charles Gideon Korrell that petition could be filed as early as this fall.

    Conclusion

    The Federal Circuit has thus far responded to V.O.S. Selections v. Trump with urgency, unanimity, and institutional caution. The en banc court has preserved the Executive’s contested tariffs for now but is moving quickly toward a decision that will almost certainly shape the future of trade law and executive authority.

    By Charles Gideon Korrell

  • Marmen Inc. v. United States — Federal Circuit Rejects Commerce’s Use of Cohen’s d Test in Dumping Margin Calculation

    In Marmen Inc. v. United States, No. 23-1877 (Fed. Cir. Apr. 22, 2025), the Federal Circuit vacated and remanded the Department of Commerce’s antidumping duty (AD) determination for utility-scale wind towers from Canada. The decision raises important questions about Commerce’s use of statistical methods in calculating dumping margins, and it reinforces key limitations previously addressed in Stupp Corp. v. United States, 5 F.4th 1341 (Fed. Cir. 2021).

    Background

    In response to a 2019 AD petition by the Wind Tower Trade Coalition, Commerce assigned Marmen a 4.94% dumping margin on Canadian wind tower imports. Marmen challenged three aspects of Commerce’s analysis:

    1. Commerce’s smoothing of steel plate input costs across product types (CONNUMs),
    2. Rejection of a supplemental correction for currency conversion discrepancies, and
    3. Use of the average-to-transaction (A-to-T) method instead of the default average-to-average (A-to-A) method, based on the results of the Cohen’s d test in its differential pricing analysis.

    The Court of International Trade (CIT) initially remanded the latter two issues but ultimately sustained Commerce’s determination. On appeal, the Federal Circuit affirmed in part and reversed in part.

    1. Steel Plate Cost Smoothing: Affirmed

    Commerce had weight-averaged steel plate costs for all but one CONNUM (due to a high-thickness surcharge). Marmen contended this violated Commerce’s own test, which considers whether cost differences reflect physical characteristics.

    The Federal Circuit upheld Commerce’s methodology, emphasizing that the governing statute, 19 U.S.C. § 1677b(f)(1)(A), allows cost adjustments when reported costs fail to reasonably reflect production realities. It reiterated its reasoning from Dongkuk S&C Co. v. United States, No. 23-1419 (Fed. Cir. Apr. 21, 2025), where it upheld Commerce’s smoothing of wind tower input costs based on similar factors. Importantly, the court confirmed that Commerce may base smoothing decisions on input characteristics, not just finished product similarity.

    2. Currency Conversion Correction: Rejection Overturned

    Marmen sought to correct an error in its cost reconciliation stemming from a failure to convert USD purchases into CAD for half of the period of investigation. Commerce had rejected the correction as duplicative or unreliable.

    The Federal Circuit disagreed, finding no substantial evidence for Commerce’s claim that the correction would result in double counting. The adjustment was clearly demarcated in a new line item (L1) and not reflected elsewhere. Moreover, the court rejected arguments that the conversion rate was insufficiently supported, noting consistent documentation across the record.

    3. Cohen’s d Test Use: Rejected as Unreasonable

    The most consequential part of the decision addresses Commerce’s use of Cohen’s d test to justify switching from the A-to-A to the A-to-T methodology. Marmen argued that Commerce’s application failed to meet the statistical assumptions necessary for the test: normal distribution, equal variance, and sufficient sample size.

    Building on Stupp, the Federal Circuit reaffirmed that Cohen’s d cannot reliably indicate a meaningful difference in pricing patterns when its assumptions are violated. The court expressly rejected Commerce’s argument that the use of population data (rather than samples) obviated the need to adhere to those assumptions. A flawed coefficient, even if consistently calculated, cannot support a legally sound shift in methodology.

    The court clarified that while Commerce may develop alternative statistical methods to evaluate price differences, any such method must be demonstrably sound for the data at issue. Consequently, the dumping margin was vacated, and Commerce must reassess its differential pricing analysis on remand without reliance on Cohen’s d in its current form.

    Key Takeaways

    • Cost Averaging Permitted: Commerce may smooth input costs across CONNUMs when such costs fail to reflect true production costs—even when finished products are not identical.
    • Procedural Fairness Required: Legitimate corrections to financial reconciliations, especially when supported by documentation and material to the accuracy of cost data, cannot be dismissed without evidentiary support.
    • Limits on Statistical Tools: The Federal Circuit has now twice underscored the limitations of Cohen’s d test (Stupp and now Marmen). Unless Commerce can justify its application in line with established statistical standards, the test cannot be used to shift methodologies in dumping margin calculations.

    This opinion reinforces judicial scrutiny over the use of statistical heuristics in trade remedies and may prompt a recalibration of Commerce’s approach to differential pricing analyses in future AD proceedings.

  • Navigating Antidumping Duties and International Trade: A Review of Vandewater v. United States

    On March 6, 2025, the United States Court of Appeals for the Federal Circuit issued a decision in Vandewater International Inc. v. United States, affirming the Department of Commerce’s determination that certain steel branch outlets imported by Vandewater fell within the scope of an existing antidumping duty (ADD) order. This ruling underscores the complex interplay between trade law and industry standards in determining the applicability of antidumping measures.

    Key Legal Issues

    The case revolved around whether Vandewater’s steel branch outlets qualified as “butt-weld pipe fittings” under a 1992 ADD order imposing duties on such fittings from China. The court addressed several major legal issues:

    1. Interpretation of Antidumping Duty Orders

    One of the central issues was the interpretation of the term “butt-weld pipe fittings” in the ADD order. Vandewater argued that its products were not traditional butt-weld pipe fittings as recognized by industry standards (such as ANSI B16.9). Commerce, however, found the language of the order ambiguous and conducted a multi-step scope analysis, concluding that the steel branch outlets fell within the order’s scope. The Federal Circuit upheld this finding, emphasizing that ambiguity in trade orders allows for a broader interpretation that may not strictly adhere to industry-defined categories.

    2. The Role of Industry Standards in Trade Disputes

    The appellants contended that industry standards should define what constitutes a butt-weld pipe fitting. However, the court found that conflicting evidence regarding industry usage prevented a definitive exclusion of Vandewater’s products. This ruling suggests that while industry standards can be persuasive, they are not necessarily dispositive in trade disputes.

    3. Commerce’s Discretion in Scope Determinations

    The court deferred to Commerce’s expertise in determining the scope of the ADD order. By affirming Commerce’s authority to use multiple sources, including prior rulings and trade investigations, the decision reinforces the agency’s broad discretion in enforcing trade laws. This has significant implications for companies navigating antidumping duties, as it signals that Commerce’s determinations will be given substantial weight in legal challenges.

    4. Retroactive Application and Trade Compliance

    Another point of contention was whether the ruling applied retroactively to past imports. While the court did not rule on this issue due to a lack of unliquidated entries before Commerce’s 2020 determination, the case highlights the uncertainty businesses face regarding past imports and potential liability under trade enforcement mechanisms.

    Implications for International Trade

    This decision has broader ramifications for businesses involved in international trade:

    • Trade Compliance for Manufacturers: Companies importing products subject to antidumping orders must be vigilant in assessing whether their products fall within the scope of existing orders. The broad interpretative authority granted to Commerce suggests that businesses should seek proactive rulings before importing goods that might be subject to duties.
    • Regulatory Uncertainty: The reliance on Commerce’s discretion underscores the challenges of navigating U.S. trade law, particularly for foreign manufacturers and importers. With industry standards playing a limited role in legal determinations, businesses may need to adapt compliance strategies beyond technical definitions.

    Conclusion

    The Federal Circuit’s decision in Vandewater v. United States serves as a critical reminder of the complexities involved in antidumping enforcement. While industry standards remain influential, Commerce’s broad discretion in trade classifications underscores the need for businesses to adopt proactive compliance strategies. As trade regulations continue to evolve, companies engaged in international commerce must carefully monitor legal developments to mitigate risks and ensure compliance with U.S. trade laws.ith U.S. trade laws.

    By Charles Gideon Korrell

  • Federal Circuit Vacates and Remands in Meyer Corporation Case: Key Patent Law Takeaways

    The Federal Circuit’s recent decision in Meyer Corporation, U.S. v. United States sheds light on several significant issues in customs law and the valuation of imported goods, with broader implications for how courts interpret evidentiary burdens and transaction pricing in a related-party context. While the case primarily involved tariff assessments rather than patent law, it touches on principles relevant to intellectual property valuation and cross-border transactions.

    Background of the Case

    Meyer Corporation, U.S. sought to rely on a “first-sale” price to determine the dutiable value of imported cookware. The cookware was manufactured in Thailand and China, sold to related-party distributors in Macau and Hong Kong, and then imported to the U.S. Customs and Border Protection (CBP) rejected Meyer’s request to use the first-sale price and instead assessed duties based on the second-sale price.

    Following a prior Federal Circuit ruling that found the Court of International Trade (CIT) had misapplied precedent, the case was remanded for reconsideration. However, the CIT again ruled against Meyer, citing a lack of financial documentation from the company’s parent, Meyer Holdings. The Federal Circuit has now vacated that ruling, finding errors in the application of evidentiary presumptions.

    Key Legal Issues Addressed

    1. The Burden of Proof in Related-Party Transactions

    A core issue in the case was whether Meyer had sufficiently demonstrated that the first-sale price was a valid transaction value under U.S. customs law. Under 19 U.S.C. § 1401a(b)(2)(B), a transaction between related parties can serve as the basis for customs valuation if it meets one of two tests:

    • The price reflects normal pricing practices of the industry (Normal Pricing Practices Test).
    • The price covers all costs plus a reasonable profit (All Costs Plus Profit Test).

    The CIT imposed an adverse inference against Meyer due to the company’s failure to provide financial records of its parent company. The Federal Circuit criticized this approach, holding that the trial court improperly speculated that the missing records would have disproved Meyer’s claim without considering the available evidence.

    2. The Interpretation of “All Costs Plus Profit” and the Definition of “Firm”

    Meyer also challenged CBP’s interpretation of 19 C.F.R. § 152.103(l)(1)(iii), which requires proof that the price ensures recovery of all costs plus a profit equivalent to the firm’s overall profitability. The government had argued that “firm” should be interpreted to mean the parent company, while Meyer contended that it referred only to the seller in the related-party transaction.

    The Federal Circuit declined to rule on the proper interpretation of “firm,” as the trial court’s decision was not based on that definition. However, the issue remains unresolved and could be litigated in future cases involving similar customs valuation disputes.

    3. The Role of Non-Market Economy Concerns in Customs Valuation

    The trial court originally denied Meyer’s first-sale price argument by reasoning that non-market influences (due to Chinese manufacturing) distorted the transaction value. The Federal Circuit had previously ruled that such reasoning was improper under U.S. customs law, which only requires that the related-party relationship not influence the price.

    On remand, the CIT attempted to reformulate its reasoning but still relied on the absence of financial records to reject Meyer’s claim. The Federal Circuit again vacated the decision, reaffirming that speculation about non-market influences is insufficient grounds to reject a first-sale transaction value.

    Implications for Patent and Intellectual Property Law

    Although this case centers on customs valuation rather than patent law, it has broader implications for intellectual property and cross-border licensing arrangements:

    • Valuation of IP Transactions: The court’s analysis of related-party transactions is relevant to companies that transfer patented technology or intellectual property between subsidiaries. The evidentiary burden for demonstrating arm’s-length pricing in these transactions may be influenced by similar legal principles.
    • Regulatory Compliance for Global IP Holders: Firms engaged in licensing or technology transfer should take note of the court’s emphasis on proper documentation. Ensuring that records of pricing methodologies and cost structures are maintained can help mitigate risks in customs and tax audits.
    • Potential Precedent for Future Trade Cases: The decision reinforces the importance of adhering to statutory and regulatory definitions rather than introducing judicially created presumptions, which could impact how courts approach licensing and patent valuation in import-export scenarios.

    Conclusion

    The Federal Circuit’s decision in Meyer Corporation, U.S. v. United States underscores the necessity of applying proper evidentiary standards in customs valuation cases. By rejecting the CIT’s reliance on speculative adverse inferences, the court reaffirmed the principle that valuation decisions must be grounded in record evidence rather than assumptions about missing documentation.

    For businesses engaged in international trade, particularly those dealing with intellectual property or patented technology, this ruling highlights the importance of maintaining clear, well-documented transaction records to support customs and tax positions. As the case returns to the CIT for further proceedings, it will be important to see how the trial court applies the Federal Circuit’s guidance in evaluating the validity of the first-sale price under U.S. customs law.

    By Charles Gideon Korrell