Small businesses sign up prominent appellate attorney Neal Katyal in tariff case
Katyal, who left his longtime law firm Hogan Lovells earlier this year to lead the appellate practice at rival Milbank, is a former Acting Solicitor General of the United States. Milbank is one of the nine law firms that have struck deals with the Trump administration to provide free legal services to avoid executive orders that targeted law firms' businesses by suspending security clearances for lawyers and restricting their access to federal buildings and officials.
The small businesses sued over Trump's so-called "Liberation Day" tariffs, resulting in a May 28 ruling from the Manhattan-based U.S. Court of International Trade that Trump overstepped his powers by declaring a national emergency to impose across-the-board taxes on imports from nations that sell more to the United States than they buy. The May 28 ruling also resolved a similar legal challenge brought by twelve U.S. states.
Katyal said in a Wednesday statement that the lawsuit was a 'vital' challenge to presidential overreach.
The Trump administration is appealing that ruling, as well as a separate court decision against the tariffs. The U.S. Court of Appeals for the Federal Circuit has ruled that the tariffs should remain in place while the appeals play out.
In an appellate brief filed Tuesday night, the Trump administration argued that the tariffs have been a useful tool for negotiating trade deals, saying that the May 28 ruling threatens 'ongoing, sensitive diplomatic negotiations with virtually every major trading partner.'
The Trump administration has argued that the International Emergency Economic Powers Act (IEEPA), a 1977 law meant to address "unusual and extraordinary" threats during a national emergency, authorized both his broad-brush 'reciprocal' tariffs on U.S. trading partners and separate tariffs on Mexico, Canada and China over those countries' alleged failure to stop fentanyl from crossing the border into the United States.
'I used to administer IEPPA for the government, and no one ever thought it authorized what he is doing here,' Katyal said in the statement. 'These presidential actions fall on the wrong side of the line.'
Katyal was acting Solicitor General under Democratic former President Barack Obama, and he has argued more than 50 cases before the U.S. Supreme Court.
McConnell is a Senior of Counsel at Wilson Sonsini Goodrich & Rosati, and he previously served as a circuit judge on the U.S. Court of Appeals for the 10th Circuit. He was appointed to the 10th Circuit by then-President George W. Bush.
The small businesses are also represented by the Liberty Justice Center, a legal nonprofit that focuses on defending economic liberty, private property rights, free speech and other rights, and Liberty Justice Center attorney Jeffrey Schwab argued the small businesses' case before the trade court.
The U.S Court of Appeals for the Federal Circuit has scheduled oral argument for July 31.
The case is V.O.S. Selections Inc. et al v. Trump, U.S Court of Appeals for the Federal Circuit , No. 25-1812
For the small business plaintiffs: Neal Katyal of Milbank; Michael McConnell of Wilson Sonsini Goodrich & Rosati; Jeffrey Scwhab and Ilya Somin of the Liberty Justice Center
For the Trump administration: Brett Shumate and Eric Hamilton of the U.S. Department of Justice, among others.
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Trump tariffs may remain in effect while appeals proceed, US appeals court rules
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