Transferring Tariff Cases to the Court of International Trade

As the entire U.S. trade regulatory community in acutely aware, the established system of tariffs – the very concept of how duties are measured and applied to imports into the United States – has been upended by the current Administration’s imposition of tariffs under the authority of the International Economic Emergency Powers Act (IEEPA).  Several challenges to the imposition of IEEPA tariffs in recent months were promptly commenced in U.S. federal courts – including the U.S. Court of International Trade (CIT) [1], of course, but also district courts in disparate locations such as Montana and Florida. [2] 

So the question arises, should those cases be decided by the various courts in which they were commenced, or should they be transferred to and resolved by the CIT?  This is an important issue not only as a technical procedural matter, but also because it raises questions of consistency of the judicial resolution of international economic issues and the allocation of authority among the branches of government.  The Florida and Montana courts issued orders transferring the lawsuits to the CIT [3], based on the statutory grant of exclusive jurisdiction to the CIT over “any civil action . . . that arises out of any law of the United States providing for – . . . tariffs . . . on the importation of merchandise for reasons other than the raising of revenue.” [4]  

In my view, transferring the cases to the CIT for resolution of the lawfulness of the IEEPA tariffs is an appropriate approach, both as a reading of the statutory text establishing the CIT’s jurisdiction and for policy reasons. [5] (However, the policy rationale does lead one to wonder why trade and tariffs deserve a court with exclusive subject matter jurisdiction, while other complex fields, such as antitrust or admiralty or environmental law do not.  But that is a topic for another day.)  But there is admittedly an awkwardness in the very process of resolving the jurisdictional issue in the IEEPA cases.  The awkwardness arises from the fact that, to some extent, the merits of the cases must be considered in resolving the question of jurisdiction due to the way in which the statute is written.  

The logical sequence of judicial decision-making would be for a court to determine its jurisdiction before considering the merits of a dispute, for there is no reason for a court to analyze the merits only to discover that it had no authority to resolve the dispute in the first place.  There are, admittedly, situations in which a court is required to take a peek at the merits in order to determine its jurisdiction, and the IEEPA cases appear to involve such a situation.  As quoted above, the statute vests exclusive jurisdiction in the CIT for cases arising out of any law that “provid{es} for” tariffs for reasons other than the raising of revenue.  So the question immediately arises, is IEEPA a statute that provides for tariffs? [6] But that is the very question raised in these lawsuits; that is, the plaintiffs are arguing, among other allegations, that the statute does not authorize the President to impose tariffs in response to an international economic emergency.  If the statute does not authorize tariffs at all, then jurisdiction does not reside exclusively in the CIT.  And if that preliminary issue is answered in the negative, the entire range of merits questions may be resolved in other fora (i.e., the geographically-defined federal district courts) and transferring the cases to the CIT would be inappropriate. 

Because the lawsuits arise from the Executive Branch’s action under IEEPA’s alleged “provi{sion} for” the imposition of tariffs, it appears that the CIT is indeed vested with jurisdiction to resolve the question whether those tariffs are lawful – without foreclosing the possibility that, at the end of the analysis, the court may conclude that the Executive Branch’s interpretation of IEEPA is incorrect.  The Montana federal district court did take a peek at the merits of the dispute and concluded that the statute provided for tariffs, at least for the purpose of resolving the jurisdictional issue. [7]  That seems sufficient.  The Florida district court, on the other hand, went into great detail in addressing the merits questions, concluding that the statute authorized tariffs and rebutting various arguments presented by plaintiffs to the contrary.  This seems overly expansive, and the discussion of those issues appears to be dicta, however thoughtful.  Indeed, the court itself appeared to recognize this concern by inserting a footnote stating that “{t}his is not intended to be a determination of the merits of Plaintiffs’ claims regarding the legal authority for the tariffs because even though there is some overlap in in the jurisdictional issue currently before the Court and the merits of Plaintiffs’ claims, this Court only has jurisdiction to decide the jurisdictional issue.” [8]  

In any event, now that several cases are pending before the CIT – including two that have already been subject to vigorous oral argument [9] – it will be up to that court to resolve a panoply of complex and important merits issues.  These issues not only attend the question of the relationship of the tariffs to the economic emergencies identified by the President, but also the scope of authority delegated by Congress to the Executive Branch under the IEEPA (particularly in light of case law involving its predecessor, the Trading with the Enemy Act), whether the Congressional delegation of authority is constitutional, whether the Executive’s declaration of an international economic emergency is justiciable (i.e., amenable to judicial review at all), whether the remedies imposed, even if lawful as a general matter, are subject to constraints (time-based or otherwise), etc.  The CIT and, inevitably, its reviewing appellate court are facing issues of the most fundamental importance for the United States’ international economic relations.  They may well be the rare instance of trade litigation that finds its way to the Supreme Court.

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Through his 40-plus years of experience in the international trade regulatory field, Neil Ellis has litigated numerous cases involving the U.S. trade laws before the administrative agencies, U.S. courts, and in WTO dispute settlement proceedings. Please contact us at neil@neilellislaw.com with questions you may have regarding trade regulatory and litigation issues, including the fundamental authority of the Executive Branch to impose tariffs on imports.

[1] See, e.g., VOS Selections v. Trump, CIT No. 25-00066 (oral arg. held May 13, 2025); Oregon v. Trump, CIT No. 25-00077 (oral arg. held May 21, 2025); Princess Awesome v. U.S. CBP (CIT No. 25-00078).  Another case before the CIT was recently dismissed for lack of standing.  Apropos of the topic of this note, the Court decided that it had exclusive jurisdiction over the dispute before turning to the standing issue.  See Barnes v. United States, Slip Op. 25-65, at 5-10 (Ct Int’l Trade May 23, 2025).

[2] See Webber v. U.S. Dep’t of Homeland Sec., 2025 U.S. Dist. LEXIS 79288, Order (D. Mont. April 25, 2025); Emily Ley Paper, Inc. v Trump, Case No. 3:25cv464-TKW-ZCB, Order Transferring Case (N.D. Fla. May 20, 2025).

[3] The Montana district court’s transfer order was promptly appealed to the U.S. Court of Appeals for the Ninth Circuit, where it is currently pending. See Webber v. U.S. Dep’t of Homeland Sec., No. 25-2717 (9th Cir.) (case opened April 28, 2025).

[4] 28 U.S.C. § 1581(i)(1).

[5] As the CIT explained in Barnes, “the U.S. Court of International Trade’s exclusive jurisdiction over tariff cases is significant because ‘Congress had in mind consolidating this area of administrative law in one place, and giving to the U.S. Court of International Trade, with an already developed expertise in international trade and tariff matters, the opportunity to bring to it a degree of uniformity and consistency’.”  Barnes, Slip Op. 25-65, at 6-7 (quoting Conoco, Inc. v. U.S. Foreign-Trade Zones Bd., 18 F.3d 1581, 1586 (Fed. Cir. 1994)).

[6] The subsidiary question arises whether the tariffs are “for reasons other than the raising of revenue.”  I think this question is easily resolved the IEEPA cases, because the Administration has identified a number of non-revenue justifications for the imposition of tariffs, including the fentanyl and immigration “crises”.  Although the President has also said in public remarks that the tariffs will increase revenues, the statement of non-revenue justifications makes clear that the tariffs are, at least in significant part, for reasons other than the raising of revenue.

[7] Webber, Order at *9-10.

[8] Emily Ley Paper, Order at 10 n.12.

[9] See VOS Selections and Oregon, supra n.1.