The following analysis regarding the U.S. Court of Appeals for the Federal Circuit’s stay on the U.S. Court of International Trade (CIT) ruling against the Section 122 tariffs is provided to our Regular Member customs brokers by NCBFAA Customs Counsel and Legislative Advisor of Sandler, Travis & Rosenberg, P.A.

The U.S. Court of Appeals for the Federal Circuit on May 12 granted an administrative stay of the Court of International Trade’s judgment that the Section 122 tariffs are unlawful. The administrative stay gives the court time to consider the government’s motion to stay, a response to which is due within seven days.

The CIT’s 2-1 split decision issued on May 7 held that, accepting President Trumps’s proclamation imposing the tariffs as true, the president failed to “identify balance-of-payments deficits within the meaning of Section 122 as it was enacted in 1974.” Instead, the president identified “a large trade deficit, a current account deficit, a negative net international investment position, and a deficit on the balance on primary and secondary income”, none of which equates to a “balance-of-payments” deficit.

The majority did not, however, strike down the Section 122 tariffs for everyone. It refused to issue a universal injunction because the “potential for increased costs to one plaintiff is not an appropriate basis for the imposition of a universal injunction.” Instead, the majority issued a permanent injunction only as to the named plaintiffs who are importers (including the State of Washington in its capacity as an importer).