SCOTT SIMON, HOST:
The legality of President Trump's sweeping tariff policy remains in limbo. This week, the Federal Circuit Court of Appeals temporarily delayed an earlier order from another court that had put many of the tariffs on hold. The initial order to halt the tariffs came from the U.S. Court of International Trade, a little-known tribunal with a very specific role. Jason Kenner is an attorney who focuses on customs and trade issues. He joins us from New York. Thanks so much for being with us.
JASON KENNER: Thanks for having me.
SIMON: I had not heard of the U.S. Court of International Trade - I don't believe - until recent days. I gather it comes out of Article 3 of the Constitution. What does it do?
KENNER: Yes. It is an Article 3 court, and it is invested with all the powers in law and equity, like a district court. But unlike a district court, it is not bounded by geography. It has nationwide jurisdiction. And it has a more limited subject matter jurisdiction, and it focuses on customs and trade-related matters. And what's interesting about its subject matter jurisdiction is it's exclusive, meaning, if the CIT, or Court of National Trade, has jurisdiction, no other district court can have jurisdiction. It's exclusive of all other courts. It is in New York. And I've been reading a lot of articles about the CIT lately. It's always described as low-profile, not well known. But it always makes me laugh because the Court of National Trade, you know, has such broad powers over trade, customs, commerce that its decisions really impact everybody on a daily basis.
SIMON: So they are rendering decisions all the time. They just usually don't amount to a story the way this one has.
KENNER: Oh, absolutely. They're rendering opinions on a wide variety of issues. You know, I don't know how much folks know about importing goods into this country, but first, they're assigned a tariff code. And that tariff code is going to determine how much tariff is going to be paid. So one of the disputes they hear a lot of is whether a particular product falls under one particular provision or another. And usually, the dispute, the importer wants a provision that is less taxes, and the government is advocating for a provision that is higher in taxes. They're the court that will hear cases alleging trade fraud and things of that nature under certain statutes. So they're issuing opinions important to importers and Americans every day.
SIMON: Where does this case stand now? I mean, it's possible that the CIT won't be able to render a ruling, right?
KENNER: Well, no. The plaintiffs - VOS and the other states - they sought preliminary injunctions. The CIT declined to give preliminary injunctions, and they went to the merits. So the decision by the CIT is a merits determination. It has already determined that the reciprocal tariffs and the fentanyl tariffs are not authorized under IEEPA.
SIMON: I don't know what IEEPA is.
KENNER: I'm sorry, the International Emergency Economic Powers Act, which gives the president certain powers to undertake certain activities in times of emergency. And the White House has declared two emergencies with respect to these tariffs - the first being the trafficking of fentanyl, and the second being the trade deficits.
SIMON: Should it be reassuring to Americans that there are bodies like the CIT that can limit executive authority?
KENNER: I think it should be reassuring to Americans that there are courts, and they do set limits, and they make sure that our elected officials are acting within the bounds of the law.
SIMON: President Trump's indicated that he's willing to take his tariff policy all the way to the U.S. Supreme Court. Is that a possibility?
KENNER: Oh, yes. Customs matters rarely end up in front of the Supreme Court. But I do believe that this case is large enough and has broad enough implications that it is possible the Supreme Court will take this case up.
SIMON: Jason Kenner, attorney. Thanks so much for being with us today.
KENNER: Absolutely. My pleasure. Transcript provided by NPR, Copyright NPR.
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