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Redistricting Wars Again & Tariff Refunds · Bloomberg Law

0:02
Speaker 1: This is Bloomberg Law with June Grossel from Bloomberg Radio.
0:08
Speaker 2: The Supreme Court's decision that basically eviscerated the landmark Voting
0:13
Speaker 2: Rights Act has set off a frenzy of redistricting, particularly
0:18
Speaker 2: in southern states controlled by Republicans. The exception seems to
0:23
Speaker 2: be South Carolina, a rare red state to buck President
0:27
Speaker 2: Trump on the issue of mid decade redistricting, The state
0:31
Speaker 2: Senate rejected an effort to redraw the map's districts to
0:35
Speaker 2: favor Republicans. South Carolina Senate majority leader Republican Shane Massey
0:41
Speaker 2: said the state's current district map is perfectly fine for November.
0:46
Speaker 1: We are not Louisiana, we are not Alabama, we are
0:51
Speaker 1: not Mississippi. Our map is not unconstitutional.
0:56
Speaker 2: Most of the latest redistricting efforts faced legal challenges, and
1:01
Speaker 2: it's hard to calculate which maps will survive with control
1:05
Speaker 2: of the House remaining on a knife s edge. My
1:08
Speaker 2: guest is an expert in elections law, Richard Brefont, a
1:12
Speaker 2: professor at Columbia Law School. Rich Virginia and its Democratic
1:17
Speaker 2: leaders are asking the Supreme Court to reinstate a new,
1:21
Speaker 2: voter approved congressional map that was designed to flip four
1:25
Speaker 2: Republican held House seats in the November election. Tell us
1:29
Speaker 2: about the decision by Virginia Supreme Court that they're appealing
1:34
Speaker 2: to the US Supreme Court.
1:36
Speaker 1: Sure, okay, So, as you know, Virginia has a couple
1:40
Speaker 1: of years ago passed a nonpartisan redistricting system to get
1:43
Speaker 1: rid of jerry mannering. But in response to the Republican jerrymanders,
1:46
Speaker 1: the governor and the legislature supported an amendment to that
1:50
Speaker 1: amendment that would allow a redistricting to go forward for
1:53
Speaker 1: this year. And the amendment was submitted to the voters
1:56
Speaker 1: and it passed narrowly, and the legislature then passed a
2:00
Speaker 1: redistricting plan which would have made Virginia something like ten
2:03
Speaker 1: Democratic seats and one Republican. Right now, I think it's
2:06
Speaker 1: something more like six and five. The problem, according to
2:09
Speaker 1: the majority of the Virginia Supreme Court, which divided four
2:12
Speaker 1: to three, is that under the Virginia Constitution, in order
2:17
Speaker 1: for a constitutional amendment to be adopted by the voters,
2:20
Speaker 1: it has to have been passed by the legislature before
2:26
Speaker 1: the next election. So there was the legislature's got to vote.
2:30
Speaker 1: Then there's got to be an election in which the
2:32
Speaker 1: voters can approve or reject the legislators, and then the
2:35
Speaker 1: amendment goes to the voters. So the legislature first passes
2:38
Speaker 1: the amendment, then there's a general election by the voters,
2:41
Speaker 1: and then there's a special election on the amendment. The problem,
2:45
Speaker 1: according to the Virginia Supreme Court majority, is that early
2:48
Speaker 1: voting had begun in the twenty twenty five general election
2:53
Speaker 1: in Virginia, so that the amendment passed the legislature before
2:57
Speaker 1: election day. But people had been vot voting already because
3:01
Speaker 1: of early voting, and according to the majority in the
3:03
Speaker 1: Virginia Supreme Court, that meant that it was not a
3:07
Speaker 1: true intervening election between the legislature's vote on the amendment
3:12
Speaker 1: and the public vote on the amendment, and that was
3:15
Speaker 1: the problem for the majority of the The center said, well, actually,
3:17
Speaker 1: what the Constitution was concerned about is a note that
3:20
Speaker 1: there'd be an election day in between. What the majority said, No,
3:24
Speaker 1: if the point of the legislative electionists allow the voters
3:27
Speaker 1: to pass judgment on whether the legislators were right or
3:30
Speaker 1: wrong to pass the amendment, some vote people have already voted.
3:33
Speaker 1: That was the theory of the Virginia Supreme Court majority,
3:37
Speaker 1: and that's what led them to say that this constitutional
3:40
Speaker 1: amendment allowing them called the Democratic jerry manager to go forward,
3:44
Speaker 1: was improperly adopted.
3:46
Speaker 2: How likely do you think it is that the Supreme
3:49
Speaker 2: Court will take the case.
3:51
Speaker 1: That strikes me as highly unlikely that the US Supreme
3:54
Speaker 1: Court would step in because it turns very much on
3:58
Speaker 1: Virginia constitutional law. The court's decision was this simply did
4:03
Speaker 1: not satisfy the procedures in the Virginia Constitution for amending
4:07
Speaker 1: the constitution. So I think it'd be highly unlikely that
4:10
Speaker 1: the US Supreme Court would step in.
4:12
Speaker 2: There are many Republican states in the South that have
4:16
Speaker 2: been changing their maps, and there are court challenges in Tennessee, Florida, Missouri,
4:24
Speaker 2: and I'm sure others. Do any of those challenges strike
4:29
Speaker 2: you as ones that the Democrats challenging the maps might
4:35
Speaker 2: be successful in.
4:37
Speaker 1: I think the best bet is in Florida because Florida
4:41
Speaker 1: also has a state constitutional amendment that actually prohibits partis
4:45
Speaker 1: in jerrymandering. So, as you know, the US Supreme Court
4:48
Speaker 1: says that parties in jerry mandering is non justiciable for
4:51
Speaker 1: federal constitutional purposes, but there is a provision of the
4:54
Speaker 1: Florida Constitution that restricts partisan jerry mandering, and so there
4:58
Speaker 1: is a chance. No, again, it's either an entirely Republican
5:02
Speaker 1: or a nearly entirely Republican state supreme court, so it's
5:05
Speaker 1: not clear what they will do. But it's currently being
5:07
Speaker 1: litigated in a state district court in Florida. I think
5:11
Speaker 1: that's got the chance. I mean, I don't want to
5:14
Speaker 1: put any odds on it, but at least I think
5:16
Speaker 1: there they have a legal theory, which you know, I
5:19
Speaker 1: think has not been rejected. In Missouri, I think there's
5:23
Speaker 1: also a state argument. There's an attempt to put a
5:26
Speaker 1: ballot proposition on the Missouri constitution that would undo the gerrymander,
5:31
Speaker 1: and the question is what does that do to the
5:34
Speaker 1: gerrymander while the ballot proposition is pending, And so far
5:38
Speaker 1: the Missouri courts have said the fact that there's a
5:40
Speaker 1: pending ballid proposition doesn't block the gerrymander. The other states,
5:44
Speaker 1: I'm not quite sure what the argument is going to be.
5:46
Speaker 1: I think there might be efforts in some of these
5:49
Speaker 1: states to argue that the state's redistricting efforts are based
5:53
Speaker 1: on intentional racial discrimination. The Supreme Court said that argument
5:57
Speaker 1: is still a valid argument for striking down a plant,
6:00
Speaker 1: but it's going to be very hard to win on that,
6:03
Speaker 1: especially since the Supreme Court has shown itself to be
6:06
Speaker 1: very unlikely to find that states have engaged in intentional
6:10
Speaker 1: racial discrimination when the states have an argument that what
6:13
Speaker 1: they're doing is part is in jerrymandering.
6:16
Speaker 2: Looking forward to the next general election, right now, a
6:21
Speaker 2: lot of the northern Democratic led states have commissions in
6:26
Speaker 2: place thanks stopping them from doing the gerrymandering that the
6:29
Speaker 2: southern states are doing. But given time and perhaps the
6:34
Speaker 2: will of the Democratic legislators, could those be changed, and
6:38
Speaker 2: could Democratic states then start doing gerrymandering. For example, New
6:43
Speaker 2: York already the governor has put it on the table
6:46
Speaker 2: for legislators.
6:48
Speaker 1: It's certainly possible, And you're right, it's been raised in
6:50
Speaker 1: New York again as New York has something as a rule.
6:53
Speaker 1: It's a little bit like the Virginia rule. It's not
6:55
Speaker 1: the same that basically says, if you're going to amend
6:58
Speaker 1: the Constitution, it's got to be approved by two legislatures
7:04
Speaker 1: with a legislative election intervening in between. So for this
7:09
Speaker 1: to happen, though, the New York legislature would have to pass,
7:13
Speaker 1: really propose a constitutional amendment to the state constitution because
7:17
Speaker 1: New York State also has a redistricting amendment which bars
7:20
Speaker 1: gerrymanderin the legislature would have to pass that amendment this
7:25
Speaker 1: year in twenty six, and then take it up and
7:28
Speaker 1: pass it again next year in twenty seven, because there's
7:31
Speaker 1: a legislative election this fall, and then it would go
7:34
Speaker 1: to the voters, presumably in November of twenty seven. Now
7:39
Speaker 1: as of now mid May, so legislature has not passed this.
7:43
Speaker 1: They could, I mean, they have time, but they would
7:45
Speaker 1: have to do that. And I don't know if what
7:47
Speaker 1: the procedure is in other states, but that would be
7:49
Speaker 1: what they'd have to do in New York.
7:51
Speaker 2: Let's turn now to the legal fights that have reached
7:53
Speaker 2: the appellate courts over the Trump administration's attempts to get
7:58
Speaker 2: states to turn over their voter roles. First of all,
8:02
Speaker 2: why does the Trump administration want these voter roles from
8:05
Speaker 2: the states.
8:06
Speaker 1: We don't really know. I mean, their ostensible justification is
8:11
Speaker 1: to make sure that the states are complying with the
8:14
Speaker 1: rules and making sure there are no non citizens on
8:17
Speaker 1: the voter rules, and in general, to say whether the
8:19
Speaker 1: states are complying with various federal voter registration requirements and
8:24
Speaker 1: where the states are keeping their roles clean. Essentially, that's
8:28
Speaker 1: their argument. It's part of, I think a more general
8:31
Speaker 1: effort by the administration. President issued those two executive orders,
8:35
Speaker 1: which so far haven't really accomplished anything, but have been
8:38
Speaker 1: trying to have some nationalize the election process, and maybe
8:42
Speaker 1: they're trying to intimidate state and local election officials. What
8:45
Speaker 1: they're asking for in all of the states is state
8:49
Speaker 1: voter registration lists, which provides information about every voter, including
8:53
Speaker 1: their social Security numbers or their driver's licenses, their addresses, etc.
8:58
Speaker 1: There is no guarantee that the administration will maintain privacy,
9:03
Speaker 1: and beyond that, there is a question of what do
9:05
Speaker 1: they intend to do with it.
9:06
Speaker 2: Have administrations prior to this sought voter rolls?
9:11
Speaker 1: Not them aware of accepting extremely unusual circumstances like the
9:15
Speaker 1: First Law is a civil rights that was passed before
9:17
Speaker 1: nineteen sixty, where administrations were using it to go after
9:21
Speaker 1: states that were keeping black people off the ballot. So
9:24
Speaker 1: they were looking for things like voter registration applications to
9:28
Speaker 1: see how they were being treated. But I'm not aware
9:31
Speaker 1: of any administration actually asking for the complete voter registration
9:35
Speaker 1: list that a state maintains and presumably upgrades on a
9:40
Speaker 1: regular basis as people drop off or come on.
9:44
Speaker 2: Quite a few Republican led states have turned over the
9:48
Speaker 2: voter rolls. Democratic led states have not turned over the
9:51
Speaker 2: voter rolls, and some Republican led states have not turned
9:56
Speaker 2: them over. And at the six trials held over the
9:59
Speaker 2: refusal to turn over the voter rolls, the Trump administration
10:03
Speaker 2: lost every single trial, including those before Trump appointed judges.
10:09
Speaker 1: Yeah, my count is that thirty states and the District
10:13
Speaker 1: of Columbia have said no, and twelve states have gone along.
10:17
Speaker 1: You're right. All twelve states that have gone along have
10:20
Speaker 1: been ones with Republican chief elections officers. But as you
10:23
Speaker 1: also point out, a number of the states that said
10:25
Speaker 1: no are so called red states. Idaho said no, Oklahoma
10:30
Speaker 1: said no, Kentucky said no, West Virginia said no, Utah
10:34
Speaker 1: said no. So it's mostly democratic states that have been
10:37
Speaker 1: saying no, but there have been some Republican states as
10:40
Speaker 1: well who insists they're the ones who were in charge
10:42
Speaker 1: of elections, and they've been doing great job maintaining the
10:46
Speaker 1: accuracy and purity of their roles, and they don't need Washington.
10:48
Speaker 1: You're right, though the Jespartment has sued some of the
10:52
Speaker 1: states that have said no. So far, I think they've
10:54
Speaker 1: only sued democratic states like California and Oregon and Michigan,
11:00
Speaker 1: although there was also a suit against Arizona, which currently
11:03
Speaker 1: has Democratic leadership but might be considered more of a
11:05
Speaker 1: purple state. And you're right. Every single one of these
11:08
Speaker 1: lawsuits by the Justice Department has been rejected by district judges,
11:12
Speaker 1: including most recently in Arizona, where it was a Trump
11:15
Speaker 1: appointed judge who said there's no basis in the law
11:19
Speaker 1: for requiring the states to give the Justice Department this information.
11:23
Speaker 2: Are the courts that have ruled using the same analysis
11:27
Speaker 2: or reasoning or is it different?
11:30
Speaker 1: Pretty much? I mean, some of them have gone off
11:31
Speaker 1: on technical grounds, but I thought the most substant one
11:35
Speaker 1: was the most recent one, which was the one in
11:37
Speaker 1: Arizona where the judge that basically said, I read the statute.
11:42
Speaker 1: The statute says this is the kind of information the
11:44
Speaker 1: Justice partner is entitled to ask for. Mostly or entirely
11:48
Speaker 1: it's information that voters submit to the government, like basically
11:53
Speaker 1: registration applications. There were two or three things like that,
11:57
Speaker 1: and it nowhere says that there's a requirement to turn
12:01
Speaker 1: over a list that's generated by the state itself. And
12:05
Speaker 1: then she pointed out there's some internal inconsistencies because there
12:09
Speaker 1: are restrictions on the information that states required to turn over.
12:13
Speaker 1: There's restrictions on the ability of the states to alter
12:17
Speaker 1: that information. But of course the states are constantly required
12:20
Speaker 1: by federal law to alter their voter registration lists as
12:24
Speaker 1: people sign up or people move and come off. And
12:27
Speaker 1: she basically says there's in fact, there's a contradiction there
12:30
Speaker 1: because the information that the Civil Rights Law requires the
12:34
Speaker 1: states to turn over is voter supplied information, not state
12:38
Speaker 1: generated information, and federal law prohibits the states in effect
12:43
Speaker 1: from tampering with that voter supplied information. The federal law
12:46
Speaker 1: requires the states to constantly revise their state voter registration list.
12:51
Speaker 1: So it's a fairly short of Pang came out in
12:54
Speaker 1: late April, but it's pretty pretty effective. And so I know,
12:58
Speaker 1: the Justice Park and just they released a forty page
13:02
Speaker 1: internal document about why they think they're right, but so
13:05
Speaker 1: far they have not succeeded in any court.
13:09
Speaker 2: And at the Sixth Circuit arguments today, one of the
13:12
Speaker 2: judges questioned why the DOJ's Office of Legal Counsel issued
13:17
Speaker 2: an advisory opinion only one day before the arguments. The
13:22
Speaker 2: Sixth Circuit arguments are over a case involving Michigan. The
13:26
Speaker 2: Ninth Circuit arguments next week are over California and Oregon.
13:32
Speaker 2: Now are these are based on the Civil Rights Act.
13:36
Speaker 1: One of the early civil rights acts, actually even before
13:40
Speaker 1: the big Civil Rights Ack epis he formed sixty five.
13:42
Speaker 1: But when the federal government is beginning to get into this,
13:45
Speaker 1: and one of them that I'm talking about is the
13:47
Speaker 1: one that gives this Dress Spartment the power to ask
13:49
Speaker 1: to get from the states certain voter registration materials that
13:56
Speaker 1: and this was but the Arizona judge emphasized that the
13:59
Speaker 1: voters give to the state. And so one argument is that,
14:02
Speaker 1: you know, it doesn't apply to stuff the states generate themselves.
14:06
Speaker 1: There are other arguments relate to the National Voter Registration
14:09
Speaker 1: Act from the nineteen nineties and HAVA, the Help America
14:12
Speaker 1: Vote Act from the two thousands. I think two thousand
14:15
Speaker 1: and six, although I'm not sure the exact date, which
14:18
Speaker 1: you're generally about states maintaining accurate voter rules but don't
14:25
Speaker 1: explicitly authorize the Just Department to do what's doing. So,
14:29
Speaker 1: I think the Just Department is claiming a kind of
14:31
Speaker 1: a general right to oversee the effectiveness of these statutes,
14:37
Speaker 1: even in the absence of anything that specifically gives them
14:40
Speaker 1: the power to do this, or in the advice of
14:43
Speaker 1: any clear allegations that the states are doing a bad job.
14:48
Speaker 2: Could the losing party is there time for an appeal
14:53
Speaker 2: to the Supreme Court?
14:55
Speaker 1: I would imagine so, I mean, it's not quite clear
14:57
Speaker 1: that there's any what the urgency of this is. I
15:01
Speaker 1: guess they might one argue that they need to have
15:02
Speaker 1: the role of information before the midterms, but I would
15:06
Speaker 1: imagine that in any state that loses, this would go
15:09
Speaker 1: immediately to the Supreme Court.
15:11
Speaker 2: And it appears that the Justice Department had a tough
15:14
Speaker 2: time at the Sixth Circuit today, where the judges kept
15:18
Speaker 2: pressing the DOJ lawyer on how to parse the phrase
15:23
Speaker 2: come into possession in a law the agency is using
15:27
Speaker 2: to try to force the state elections officials to turn
15:30
Speaker 2: over the unredacted voter roles. I'm just wondering if all
15:35
Speaker 2: this before the election, the gerrymandering, you know, whether this
15:40
Speaker 2: is going to make people very confused when they do
15:44
Speaker 2: go to vote. I mean, I don't know in some
15:45
Speaker 2: states if they will find out where their voting district
15:48
Speaker 2: is and wonder if the voting is just going to
15:50
Speaker 2: be a mess.
15:52
Speaker 1: Well, certainly Alabama and Louisiana totally messed up their primaries.
15:56
Speaker 1: In both states, the primaries had already begun when the
16:00
Speaker 1: state government socided we're going to change the districts, so
16:03
Speaker 1: those voters are can be totally confused. I mean, hopefully
16:07
Speaker 1: everything will be settled down by the fall. And of
16:10
Speaker 1: course this disclosure of the voter information doesn't directly affect voting,
16:14
Speaker 1: although it could make voters nervous, but the voter registration
16:16
Speaker 1: and authority exists, it won't be changed whether you vote
16:20
Speaker 1: or not. But yeah, I mean, I think there's certainly
16:23
Speaker 1: in the states that are doing all this last minute
16:26
Speaker 1: redistricting in Tennessee, in Florida, now in Alabama and Louisiana,
16:32
Speaker 1: it's going to be chaotic, and especially in Alabama Louisiana,
16:36
Speaker 1: where there were voting, and so, in fact, what I
16:38
Speaker 1: think the Louisiana state did, and I think maybe Alabama
16:41
Speaker 1: as well in affects split their primaries and said, we
16:44
Speaker 1: can run the primaries for the state legislature, but we're
16:47
Speaker 1: not going to run the primary for the fact is
16:49
Speaker 1: a primary for Senate in Louisiana, which I think is
16:53
Speaker 1: still going forward, but we're not going to run the
16:55
Speaker 1: primary for Congress until we get the district lines up.
16:58
Speaker 2: Thanks so much, rich As. That's Professor Richard Brafald of
17:02
Speaker 2: Columbia Law School. The government has begun refunding some of
17:09
Speaker 2: the one hundred and sixty six billion dollars collected from
17:13
Speaker 2: tariffs that the Supreme Court declared were illegal, those tariffs
17:17
Speaker 2: that were collected under AIPA. At the same time, the
17:20
Speaker 2: Trump administration is fighting a legal battle to defeat the
17:24
Speaker 2: newer tariffs Trump imposed immediately following the Supreme Court's decision.
17:30
Speaker 2: Joining me is Dave Townshend, an international trade expert and
17:33
Speaker 2: a partner at Dorsey and Whitney, basically give us an
17:37
Speaker 2: update on the Customs and Border Patrol, has confirmed that
17:43
Speaker 2: it is close to clearing what thirty five billion.
17:47
Speaker 3: Dollars US Customs and Border Protection issued a statement to
17:53
Speaker 3: the Court of International Trade this week providing an update
17:58
Speaker 3: to the Court about the progress it was making and
18:00
Speaker 3: issuing refunds to US importers for tariffs that were ruled illegal.
18:06
Speaker 3: The IPA tariffs, and CBP told the Court that it
18:12
Speaker 3: was making progress, that it had approved over thirty five
18:17
Speaker 3: billion dollars in payments to US importers and that it
18:23
Speaker 3: would be issuing that money. It also provided an update
18:27
Speaker 3: saying that it intended to approve a significant amount more
18:33
Speaker 3: year in the coming weeks with respect to claims for
18:37
Speaker 3: the refunds that were already made, and.
18:40
Speaker 2: Explain why it's important that they're actually starting to hand
18:44
Speaker 2: the money out what the implications are.
18:48
Speaker 3: The Court of International Trade directed CBP to issue the
18:52
Speaker 3: refunds to importers following the Supreme Court's ruling that the
18:56
Speaker 3: IPA tariffs were unlawful and the order of the Court
19:01
Speaker 3: of International Trade remains appealable by the United States. Was
19:06
Speaker 3: issued earlier this year, and under the rules for appeal,
19:11
Speaker 3: they could as of June appeal the order directing them
19:17
Speaker 3: to issue the refunds. In the meantime, the Court had
19:22
Speaker 3: asked CBP to demonstrate it was making progress and issuing
19:28
Speaker 3: the refunds to the importers, which is what led to
19:31
Speaker 3: the update that CBB provided earlier this week. And I
19:36
Speaker 3: think it's significant that it told the court it was
19:41
Speaker 3: sending thirty five billion dollars more than thirty five billion
19:45
Speaker 3: dollars to the US importers in light of the fact
19:48
Speaker 3: that the CIT order remains appealable.
19:51
Speaker 2: I mean, is it difficult to get the tariff refunds
19:54
Speaker 2: or is it automated and just smooth.
19:57
Speaker 3: The refund process has been pretty smooth to date. Customs
20:02
Speaker 3: CDP launched what it calls CAPE, which is a module
20:07
Speaker 3: within its Automated Commercial Environment allowing importers to submit a
20:12
Speaker 3: declaration asking for the refunds. That occurred on April twentieth.
20:19
Speaker 3: CVP had said it would take sixty to ninety days
20:23
Speaker 3: for them to review the declarations asking for the refunds
20:26
Speaker 3: and to issue the refunds. And so you know, given
20:30
Speaker 3: the date today we're mid May, they're moving more quickly
20:34
Speaker 3: than they said they thought they could, and have already
20:37
Speaker 3: begun issuing the refunds in advance of the sixty to
20:42
Speaker 3: ninety days they thought it would take for them to
20:44
Speaker 3: do so.
20:46
Speaker 2: So as these refunds proceed, the Trump administration is simultaneously
20:52
Speaker 2: fighting a legal effort to defeat his newer tariffs. Tell
20:57
Speaker 2: us about the international trade courts recent decision on that
21:03
Speaker 2: or recent order.
21:04
Speaker 3: The President, after the Supreme Court had ruled the IPA
21:08
Speaker 3: tariffs were unlawful, issued a global import tariff that applied
21:13
Speaker 3: to nearly all goods coming into the United States of
21:16
Speaker 3: ten percent under what's called Section one twenty two, and
21:21
Speaker 3: US importers and twenty some states acting as plaintiffs filed
21:28
Speaker 3: acclaim before the Court of International Trade asking to find
21:31
Speaker 3: that the imposition of that ten percent global tariff was unlawful.
21:35
Speaker 3: Last week, the Court of International Trade agreed and held
21:39
Speaker 3: that Section one twenty two did not authorize the ten
21:43
Speaker 3: percent tariff that that the administration had imposed, and so
21:48
Speaker 3: the Court of International Trade ordered the United States to
21:51
Speaker 3: cease collecting the ten percent tariff, at least with respect
21:54
Speaker 3: to the importer plaintiffs before it, and then also ordered
21:58
Speaker 3: the United States issue refunds of the Section one twenty
22:02
Speaker 3: two tariffs that those importers had paid since issuance of
22:07
Speaker 3: that court ruling. The United States immediately appealed asked the
22:11
Speaker 3: US Court of Appeals for the Federal Circuit to pause
22:14
Speaker 3: the order requiring them to stop collecting the one twenty
22:18
Speaker 3: two tariffs, and just yesterday the Court of Appeals for
22:22
Speaker 3: the Federal Circuit agreed to pause the effect of the
22:26
Speaker 3: c ruling. And so for now, at least everybody has
22:30
Speaker 3: to continue paying the Section one twenty two tariffs. And
22:33
Speaker 3: this is all familiar to importers because this was very
22:37
Speaker 3: similar to the way the court challenges unfolded with respect
22:42
Speaker 3: to the IPA tariffs.
22:44
Speaker 2: When the tariff decision came down from the Supreme Court,
22:48
Speaker 2: everyone talked about the different ways that he could impose
22:51
Speaker 2: tariffs lawfully. To use the wrong section, is there another
22:55
Speaker 2: law that he could have used so that it wouldn't
22:57
Speaker 2: face a successful court challenge.
23:01
Speaker 3: The United States has said it will continue to impose
23:04
Speaker 3: tariffs under a variety of authorities. And so immediately following
23:08
Speaker 3: the Supreme Court decision with respect TAIPA, they faced this problem,
23:13
Speaker 3: which was that they wanted to immediately impose a replacement tariff.
23:17
Speaker 3: They chose Section one twenty two. It's time limited for
23:21
Speaker 3: one hundred and fifty days in the July and in
23:25
Speaker 3: the meantime, they have begun the process to impose tariffs
23:31
Speaker 3: on what they've referred to as more durable legal authorities,
23:34
Speaker 3: meaning authorities that they can impose tariffs indefinitely or without
23:39
Speaker 3: any time limited constraint. They're doing that under what's called
23:44
Speaker 3: Section three oh one, which allows tariffs in response to
23:48
Speaker 3: unfair trading practices. The President has been imposing Section three
23:52
Speaker 3: oh one tariffs on goods from China since twenty eighteen.
23:56
Speaker 3: Those tariffs were continued under President Biden and have continued
23:59
Speaker 3: till till today. There are a variety of Section three
24:03
Speaker 3: oh one investigations ongoing that will allow the President to
24:08
Speaker 3: impose tariffs under Section three oh one, possibly as early
24:13
Speaker 3: as July, when the Section one twenty two tariffs expire.
24:17
Speaker 3: There's also Section two thirty two, which are certain national
24:21
Speaker 3: security related tariffs. Those have also been imposed in some
24:24
Speaker 3: respects since twenty eighteen. So the big picture here is
24:28
Speaker 3: that these Section one twenty two tariffs were like a bridge,
24:31
Speaker 3: taking US trade policy from AIPA terifs which were held
24:34
Speaker 3: illegal to these more durable tariffs. But the more durable
24:38
Speaker 3: tariffs are aren't yet in place, so the one twenty
24:41
Speaker 3: two tariffs were like a stop gap to allow imposition
24:45
Speaker 3: of a global tariff that applied to nearly all imports
24:49
Speaker 3: into the United States.
24:50
Speaker 2: Do you think that the decision regarding the one twenty
24:55
Speaker 2: two tariffs, do you think that that's a solid decision
24:57
Speaker 2: or it might be reversed on appeal.
25:02
Speaker 3: It certainly could be reversed on appeal. The United States,
25:06
Speaker 3: in asking the Court of Appeals for the Federal Circuit,
25:08
Speaker 3: laid out some of its arguments about why it thinks
25:13
Speaker 3: the Court of International Trade was wrong. Notably, they say
25:17
Speaker 3: that the statute doesn't define the key phrase that the
25:21
Speaker 3: administration was relying on to impose Section one twenty two tariffs,
25:24
Speaker 3: which is a persistent balance of payments problem. That term
25:29
Speaker 3: of art isn't defined, and so part of the administration's
25:34
Speaker 3: argument is that the Court of International Trade didn't give
25:36
Speaker 3: them sufficient deference in finding that circumstances existed to allow
25:41
Speaker 3: them to impose the global tariff as a result of
25:44
Speaker 3: a balance of payments deficit. I think at the Court
25:47
Speaker 3: of Appeals they'll certainly take a fresh look at this
25:53
Speaker 3: and could certainly find their own reasons either to uphold
25:57
Speaker 3: or strike down the tariffs. Again from what the Court
26:01
Speaker 3: of International Trade said, So, you know, I think it'll
26:05
Speaker 3: be you know, sort of re fought again entirely at
26:08
Speaker 3: the appellate level, and it's really tough to predict what
26:12
Speaker 3: the outcome will be.
26:13
Speaker 2: Why grant to stay. The government is claiming it would
26:17
Speaker 2: face irreparable harm. What irreparable harm? I mean, they just
26:21
Speaker 2: had the Supreme Court undoing tariffs and we see refunds now,
26:25
Speaker 2: so where's the irreparable harm.
26:27
Speaker 3: The administration points to the need to continue imposing tariffs
26:33
Speaker 3: as a policy choice that they've made, and the fact
26:36
Speaker 3: that importers might rush to import goods absent the tariffs.
26:40
Speaker 3: They say that they've negotiated a series of trade agreements
26:45
Speaker 3: that are premised on the idea that that tariffs are
26:49
Speaker 3: imposed on goods coming into the United States. And I
26:53
Speaker 3: think the Federal Circuit followed the path that it did
26:57
Speaker 3: under APA, which was to allow the continued imposition of
27:00
Speaker 3: the tariffs. And I think the court here is crediting
27:03
Speaker 3: the fact that the United States has said that it
27:07
Speaker 3: can repay the tariffs if the tariffs are ultimately found illegal.
27:10
Speaker 3: And obviously, as we started with, we've seen that's the case.
27:14
Speaker 3: Now that it has begun repaying importers for the IPA
27:18
Speaker 3: tariffs that were held to be illegal. One interesting aspect
27:22
Speaker 3: of the one twenty two case is that it raises
27:28
Speaker 3: significant issues about what deference, if any, is owed to
27:31
Speaker 3: the executive branch in interprening an ambiguous statute, including in
27:37
Speaker 3: the realm of foreign affairs. I mean, I think if
27:40
Speaker 3: you were under a framework of Chevron, where a court
27:43
Speaker 3: was supposed to uphold any reasonable interpretation of what the
27:49
Speaker 3: executive branch, how the executive branch interprets the statute, there'd
27:54
Speaker 3: be a stronger case for the United States here to
27:57
Speaker 3: uphold what they did. And I think one of the
28:01
Speaker 3: interesting legal aspects of what the Court of International Trade
28:03
Speaker 3: held here is they're looking for that one correct legal
28:07
Speaker 3: interpretation under lolver Bright is a Supreme Court case striking
28:11
Speaker 3: down Chevron, and so thus found that the United States
28:15
Speaker 3: acted unlawfully in the way it was interpreting Section one
28:18
Speaker 3: twenty two.
28:19
Speaker 2: The Trump administration is certainly keeping the Court of International
28:23
Speaker 2: Trade busy, that's for sure. Thanks so much, Dave. That's
28:27
Speaker 2: Dave Townsend of Dorsey and Whitney. And that's it for
28:31
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