Following President Donald Trump‘s use of the International Emergency Economic Powers Act (IEEPA) to impose sweeping global tariffs, the Court of International Trade (CIT) in May issued a permanent nationwide injunction against the IEEPA-based tariffs, ruling that the president did not have the authority to impose the tariffs under the emergency powers act.
Subsequently, the U.S. Court of Appeals for the Federal Circuit (CAFC) issued a stay of the CIT’s rulings pending the appeal.
Neal Katyal, former Principal Deputy Solicitor General in the U.S. Department of Justice during the Obama administration, reported today on social media that he and his colleagues (including former President George W. Bush-appointed federal appeals court judge Michael McConnell) have filed a brief which, according to Katyal, explains why President Donald Trump’s tariffs are “unconstitutional & illegal.”
[Note: Both Katyal and McConnell have argued several cases before the U.S. Supreme Court.]
“These presidential actions fall on the wrong side of the line. I look forward to vindicating our Founders’ view of the separation of powers, and to restoring the primacy of Congress over such major questions.” @neal_katyal https://t.co/sD3kQlZwXs
— Liberty Justice Center (@LJCenter) June 26, 2025
Katyal and McConnell are representing five small business in the U.S. that are affected by Trump’s tariffs and want the Court to “lift the stay on enforcement of the CIT’s injunction as soon as practicable after oral argument.”
The plaintiffs are: V.O.S. Selections (wine and spirits, New York, NY); Plastic Services and Products (plastic pipes, Salt Lake City, UT); MicroKits (STEM kits in Charlottesville, VA); FishUSA (fishing gear in Fairview, PA); and Terry Precision Cycling (cycling gear, clothing, Burlington, VT).
I’ve been scribbling away with an incredible team—all of us writing our brief explaining why Trump’s tariffs are unconstitutional&illegal
— Neal Katyal (@neal_katyal) July 8, 2025
We just filed the brief and it is available at link on next page. Argument before the full court of appeals July 31 &will be live streamed!
The introduction of Kaytal’s filing reads: “The government claims the President may impose tariffs on the American people whenever he wants, at whatever level he wants, against whatever countries and products he wants, and for as long as he wants—merely by declaring longstanding U.S. trade deficits a national ’emergency’ and an ‘unusual and extraordinary threat,’ declarations the government insists are unreviewable. But under the familiar framework of Youngstown Sheet & Tube Co. v. Sawyer, the President may exercise executive power over U.S. persons and property only if given authority by ‘an act of Congress’ or ‘the Constitution itself.’ 343 U.S. 579, 585 (1952). Neither grants him that authority here.”
Note: In February, Katyal joined the law firm of Milbank LLP to lead the appellate practice of their Washington D.C. office. In May, Milbank reached an agreement with President Trump to provide $100 million in pro bono legal services to the Trump administration and to not use “illegal DEI discrimination.”
Katyal and McConnell will argue before the full court of appeals on Thursday, July 31 and it will be live-streamed.
