V.O.S. Selections, Inc., et al. v. The United States of America

New York, New York international trade lawyers presented the Plaintiff who challenged the validity of the tariffs levied by President Trump.



A. The Constitution

While "Congress . . . may not transfer to another branch powers which are strictly and

exclusively legislative . . . Congress . . . may confer substantial discretion . . . to implement and

enforce the laws.” Gundy v. United States, 588 U.S. 128, 135 (2019) (internal quotation marks

and citation omitted). Thus, courts have consistently upheld statutory delegations as long as

Congress "lay[s] down by legislative act an intelligible principle to which the person or body

authorized to [exercise that authority] is directed to conform.” Mistretta v. United States, 488 U.S.

361, 372 (1989) (quoting J.W. Hampton, Jr., & Co. v. United States, 276 U.S. 394, 409 (1928)).

This reflects the idea that in modern government, "[t]he legislative process would frequently bog

down if Congress were constitutionally required to appraise before-hand the myriad situations to

which it wishes a particular policy to be applied and to formulate specific rules for each situation.”

American Power & Light Co. v. SEC, 329 U.S. 90, 105 (1946).

B. Tariffs

Early in the nation's history, tariffs were a key means by which the federal government

raised money to pay wages and to fund the national debt. See John M. Dobson, Two Centuries of

Tariffs: The Background and Emergence of the U.S. International Trade Commission 6 (U.S. Int'l

Trade Comm'n 1976). The revenue-raising purpose of tariffs has declined significantly since the

ratification of the Sixteenth Amendment in 1913 permitted the imposition of income taxes. See

id. at 1, 70. Since then, and with the increasing complexity and interconnectedness of the global

Court Nos. 25-00066 & 25-00077 Page 5

economic landscape, tariffs have served more diverse purposes including restricting the

importation of certain goods, protecting American industry, and leveraging negotiations with

foreign counterparts. See, e.g., id. at 80 (describing the use of tariffs to restrict Japanese textile

imports).

As global economic relations grew in volume and complexity, Congress saw a need for

specialized, nonpartisan assistance in administering tariffs. See id. at 87. Congress accordingly

passed legislation creating the United States Tariff Commission, later renamed the United States

International Trade Commission ("ITC”). See id.; Revenue Act of 1916, Pub. L. 64-271,

§§ 700–09, 39 Stat. 756, 795–98. To provide this assistance, the Commission "shall have the

power to investigate the tariff relations between the United States and foreign countries,

commercial treaties, . . . the volume of importations compared with domestic production and

consumption, and conditions, causes, and effects relating to competition of foreign industries with

those of the United States.” 19 U.S.C. § 1332. The ITC is responsible for maintaining the United

States Harmonized Tariff Schedule ("HTSUS”), which sets tariff rates for all merchandise

imported into the United States. See id. § 1202. The HTSUS itself "is indeed a statute but is not

published physically in the United States Code.” Libas, Ltd. v. United States, 193 F.3d 1361, 1364

(Fed. Cir. 1999). Congress's enactment of the HTSUS provided that its terms "shall be considered

to be statutory provisions of law for all purposes.” Omnibus Trade and Competitiveness Act of

1988, Pub. L. No. 100-418, § 1204(c)(1), 102 Stat. 1107, 1149.

In addition to forming the ITC, Congress has responded to the growing complexity of

global economic relations by delegating trade authority to the President. These delegations have

included clear limitations that retain legislative power over the imposition of duties and over

Court Nos. 25-00066 & 25-00077 Page 6

foreign commerce. See, e.g., Norwegian Nitrogen Prods. Co. v. United States, 288 U.S. 294, 305

(1933) ("What is done by the Tariff Commission and the President in changing the tariff rates to

conform to new conditions is in substance a delegation, though a permissible one, of the legislative

process.”).

For example, in 1962, Congress delegated to the President the power to take action to adjust

imports when the Secretary of Commerce finds that an "article is being imported into the United

States in such quantities or under such circumstances as to threaten to impair the national security.”

Trade Expansion Act of 1962, Pub. L. No. 87-794, § 232(b), 76 Stat. 872, 877 (codified as

amended at 19 U.S.C. § 1862(c)(1)(A)). This delegation is conditioned upon an investigation and

findings by the Secretary of Commerce, and agreement by the President. See id. Section 301 of

the Trade Act of 1974, as amended, requires that the U.S. Trade Representative ("USTR”) take

action, which may include imposing tariffs, where "the rights of the United States under any trade

agreement are being denied” or "an act, policy, or practice of a foreign country” is "unjustifiable

and burdens or restricts United States commerce.” 19 U.S.C. § 2411(a)(1)(A)–(B). The USTR

may impose duties also where the USTR determines that "an act, policy, or practice of a foreign

country is unreasonable or discriminatory and burdens or restricts United States commerce.” Id.

§ 2411(b)(1). This power is conditioned on extensive procedural requirements including an

investigation that culminates in an affirmative finding that another country imposed unfair trade

barriers under § 2411(a)(1)(A) or (B) or § 2411(b), and a public notice and comment period. See

id. § 2414(b).

Court Nos. 25-00066 & 25-00077 Page 7

C. Presidential Authority to Regulate Importation During National

Emergencies

In 1917, Congress passed the Trading with the Enemy Act ("TWEA”) to grant the President

powers to regulate international transactions with enemy powers following the entry of the United

States into World War I. See Trading with the Enemy Act, Pub. L. No. 65-91, § 2, 40 Stat. 411

(1917) (codified as amended at 50 U.S.C. §§ 4301 to 4341); see also Christopher A. Casey

& Jennifer K. Elsea, Cong. Rsch. Serv., R45168, The International Emergency Economic Powers

Act: Origins, Evolution, and Use 2–3 (2024). The Great Depression then led Congress to expand

the President's authority under TWEA to declare states of emergency and exercise authority over

international trade even outside times of war. See Emergency Banking Relief Act,

Pub. L. No. 73-1, § 2, 48 Stat. 1, 1–2 (1933) (amending TWEA). TWEA, as amended, grants the

President the broad authority to "regulate . . . importation or exportation of . . . any property in

which any foreign country or a national thereof has any interest.” 50 U.S.C. § 4305(b)(1)(B).

In 1974, the United States Customs Court, the predecessor to the United States Court of

International Trade, heard a challenge to President Nixon's imposition of a supplemental duty on

all dutiable merchandise imported into the United States. See Yoshida Int'l, Inc. v. United States,

378 F. Supp. 1155 (1974) ("Yoshida I”); see also Proclamation No. 4074, Imposition of

Supplemental Duty for Balance of Payments Purpose, 85 Stat. 926 (Aug. 15, 1971). The

Government argued that President Nixon's actions were lawfully authorized by TWEA. Yoshida

I, 378 F. Supp. at 1157. The U.S. Customs Court construed TWEA "so as to preserve its

constitutionality” and held that TWEA "precludes the President from laying the supplemental

duties provided by [President Nixon].” Id. at 1173. The United States Court of Customs and

Patent Appeals, the predecessor to the United States Court of Appeals for the Federal Circuit

Court Nos. 25-00066 & 25-00077 Page 8

("Federal Circuit”), reversed the lower court's decision, holding that President Nixon's duties were

"within the power constitutionally delegated to him.” United States v. Yoshida Int'l. Inc., 526

F.2d 560, 584 (C.C.P.A. 1975) ("Yoshida II”). The court reasoned that "Congress, in enacting

[TWEA], authorized the President, during an emergency, to exercise the delegated substantive

power, i.e., to 'regulate importation,' by imposing an import duty surcharge or by other means

appropriately and reasonably related . . . to the particular nature of the emergency declared.” Id.

at 576.

Shortly after this decision and following a review by a Senate bipartisan special committee,

Congress reformed the President's emergency powers. As part of this reform, Congress cabined

the President's powers under TWEA to wartime. See Amendments to the Trading with the Enemy

Act, Pub. L. No. 95-223, § 101–03, 91 Stat. 1625, 1625–26 (1977) ("[TWEA] is amended by

striking out 'or during any other period of national emergency declared by the President' in the

text preceding subparagraph (A).”). Congress also enacted a new statute, IEEPA, to confer "upon

the President a new set of authorities for use in time of national emergency which are both more

limited in scope than those of [TWEA] and subject to more procedural limitations, including those

of the National Emergencies Act.” Comm. on Int'l Rels., Trading with the Enemy Act Reform

Legislation, H.R. Rep. No. 95-459, at 2 (1977); see also International Emergency Economic

Powers Act, Pub. L. No. 95-223, § 201–08, 91 Stat. 1625, 1626–29 (1977) (codified as amended

at 50 U.S.C. §§ 1701–10). Congress drew much of the relevant language in IEEPA from TWEA,

including language authorizing the President to "regulate . . . importation . . . of . . . any property

in which any foreign country or a national thereof has any interest by any person . . . subject to the

jurisdiction of the United States . . . .” 50 U.S.C. § 1702(a)(1)(B). In full, the relevant provision

Court Nos. 25-00066 & 25-00077 Page 9

of IEEPA provides that the President may:

(A) investigate, regulate, or prohibit—

(i) any transactions in foreign exchange,

(ii) transfers of credit or payments between, by, through, or to any banking

institution, to the extent that such transfers or payments involve any interest of

any foreign country or a national thereof,

(ii) the importing or exporting of currency or securities, by any person, or with

respect to any property, subject to the jurisdiction of the United States;

(B) investigate, block during the pendency of an investigation, regulate, direct and

compel, nullify, void, prevent or prohibit, any acquisition, holding, withholding,

use, transfer, withdrawal, transportation, importation or exportation of, or dealing

in, or exercising any right, power, or privilege with respect to, or transactions

involving, any property in which any foreign country or a national thereof has any

interest by any person, or with respect to any property, subject to the jurisdiction of

the United States . . . .

Id. § 1702. IEEPA further provides that these authorities "may only be exercised to deal with an

unusual and extraordinary threat with respect to which a national emergency has been declared for

purposes of this chapter and may not be exercised for any other purpose.” Id. § 1701(b).

D. The National Emergencies Act

As part of Congress's reform of the President's emergency powers and in addition to

amending TWEA and enacting IEEPA, Congress enacted the National Emergencies Act ("NEA”)

in 1976. See National Emergencies Act, Pub. L. No. 94-412, § 201, 90 Stat. 1255, 1255–56 (1976)

(codified as amended at 50 U.S.C. § 1622). That act provided for the termination of all existing

emergencies in 1978, except those making use of TWEA, and placed new restrictions on the

declaration of emergencies. Id. First, the NEA requires the President to transmit to Congress a

notification of the declaration of a national emergency. Id. Second, the act requires a biannual

review whereby "each House of Congress shall meet to consider a vote on a . . . resolution to

Court Nos. 25-00066 & 25-00077 Page 10

determine whether that emergency shall be terminated.” Id. At the time of its enactment in 1976,

the NEA afforded Congress the means to terminate a national emergency by adopting a concurrent

resolution in each chamber. See id. However, the Supreme Court later found Congress's use of

unicameral legislative vetoes, which terminated executive determinations without presentment, to

be unconstitutional. See INS v. Chadha, 462 U.S. 919 (1983). Congress subsequently amended

the NEA to require a joint resolution rather than a concurrent resolution to align the statutory

scheme with the implicit logic of Chadha. See Foreign Relations Authorization Act, Fiscal Years

1986 and 1987, Pub. L. No. 99-93, § 801, 98 Stat. 405, 448 (1985) (codified as amended at 50

U.S.C. § 1622). Following Chadha, congressional action terminating a national emergency is still

subject to presidential veto, making congressional review no more than the ordinary power to

legislate.



* * *

The court holds for the foregoing reasons that IEEPA does not authorize any of the Worldwide, Retaliatory, or Trafficking Tariff Orders. The Worldwide and Retaliatory Tariff Orders exceed any authority granted to the President by IEEPA to regulate importation by means of tariffs. The Trafficking Tariffs fail because they do not deal with the threats set forth in those orders. This conclusion entitles Plaintiffs to judgment as a matter of law; as the court further finds no genuine dispute as to any material fact, summary judgment will enter against the United States.



See USCIT R. 56. The challenged Tariff Orders will be vacated and their operation permanently enjoined. There is no question here of narrowly tailored relief; if the challenged Tariff Orders are unlawful as to Plaintiffs they are unlawful as to all. “[A]ll Duties, Imposts and Excises shall be uniform throughout the United States,” U.S. Const. art. I, § 8, cl. 1, and “[t]he tax is uniform when it operates with the same force and effect in every place where the subject of it is found.”



Money Cases, 112 U.S. 580, 594 (1884); see also Siemens Am., Inc. v. United States, 692 F.2d 1382, 1383 (Fed. Cir. 1982); Nat’l Corn Growers Ass’n v. Baker, 10 CIT 517, 521, 643 F. Supp. 626, 630–31 (1986) (noting “the statutory and constitutional mandate of uniformity in the interpretation of the international trade laws”). Plaintiffs’ Motions for Summary Judgment are granted, and their Motions for Preliminary Injunction are denied as moot. Judgment will enter accordingly.



By the panel.

Dated: May 28, 2025

New York, New York



See: https://www.cit.uscourts.gov/sites/cit/files/25-66.pdf