# Redistricting Wars Again & Tariff Refunds

An episode of [Bloomberg Law](https://invisiblenetwork.ai/podcast/277975394), 14 May 2026, 29 min.

Audio: https://podtrac.com/pts/redirect.mp3/traffic.omny.fm/d/clips/e73c998e-6e60-432f-8610-ae210140c5b1/7c892d84-801f-4c0b-b0e9-ae2b0012ff5f/f31f5722-f4b6-4dbe-9eec-b44a0029315a/audio.mp3?utm_source=Podcast&in_playlist=91224201-26a6-429d-ac3c-ae2b0012ff6d

Elections law expert Richard Briffault, a professor at Columbia Law School, discusses the redistricting wars and the Trump administration’s attempts to get voter rolls from the states. Then international trade expert Dave Townsend, a partner at Dorsey & Whitney, discusses the latest on the tariff refunds. June Grasso hosts. See omnystudio.com/listener for privacy information.

## Transcript

[0:02] Speaker 1: This is Bloomberg Law with June Grossel from Bloomberg Radio.
[0:08] Speaker 2: The Supreme Court's decision that basically eviscerated the landmark Voting
[0:13] Speaker 2: Rights Act has set off a frenzy of redistricting, particularly
[0:18] Speaker 2: in southern states controlled by Republicans. The exception seems to
[0:23] Speaker 2: be South Carolina, a rare red state to buck President
[0:27] Speaker 2: Trump on the issue of mid decade redistricting, The state
[0:31] Speaker 2: Senate rejected an effort to redraw the map's districts to
[0:35] Speaker 2: favor Republicans. South Carolina Senate majority leader Republican Shane Massey
[0:41] Speaker 2: said the state's current district map is perfectly fine for November.
[0:46] Speaker 1: We are not Louisiana, we are not Alabama, we are
[0:51] Speaker 1: not Mississippi. Our map is not unconstitutional.
[0:56] Speaker 2: Most of the latest redistricting efforts faced legal challenges, and
[1:01] Speaker 2: it's hard to calculate which maps will survive with control
[1:05] Speaker 2: of the House remaining on a knife s edge. My
[1:08] Speaker 2: guest is an expert in elections law, Richard Brefont, a
[1:12] Speaker 2: professor at Columbia Law School. Rich Virginia and its Democratic
[1:17] Speaker 2: leaders are asking the Supreme Court to reinstate a new,
[1:21] Speaker 2: voter approved congressional map that was designed to flip four
[1:25] Speaker 2: Republican held House seats in the November election. Tell us
[1:29] Speaker 2: about the decision by Virginia Supreme Court that they're appealing
[1:34] Speaker 2: to the US Supreme Court.
[1:36] Speaker 1: Sure, okay, So, as you know, Virginia has a couple
[1:40] Speaker 1: of years ago passed a nonpartisan redistricting system to get
[1:43] Speaker 1: rid of jerry mannering. But in response to the Republican jerrymanders,
[1:46] Speaker 1: the governor and the legislature supported an amendment to that
[1:50] Speaker 1: amendment that would allow a redistricting to go forward for
[1:53] Speaker 1: this year. And the amendment was submitted to the voters
[1:56] Speaker 1: and it passed narrowly, and the legislature then passed a
[2:00] Speaker 1: redistricting plan which would have made Virginia something like ten
[2:03] Speaker 1: Democratic seats and one Republican. Right now, I think it's
[2:06] Speaker 1: something more like six and five. The problem, according to
[2:09] Speaker 1: the majority of the Virginia Supreme Court, which divided four
[2:12] Speaker 1: to three, is that under the Virginia Constitution, in order
[2:17] Speaker 1: for a constitutional amendment to be adopted by the voters,
[2:20] Speaker 1: it has to have been passed by the legislature before
[2:26] Speaker 1: the next election. So there was the legislature's got to vote.
[2:30] Speaker 1: Then there's got to be an election in which the
[2:32] Speaker 1: voters can approve or reject the legislators, and then the
[2:35] Speaker 1: amendment goes to the voters. So the legislature first passes
[2:38] Speaker 1: the amendment, then there's a general election by the voters,
[2:41] Speaker 1: and then there's a special election on the amendment. The problem,
[2:45] Speaker 1: according to the Virginia Supreme Court majority, is that early
[2:48] Speaker 1: voting had begun in the twenty twenty five general election
[2:53] Speaker 1: in Virginia, so that the amendment passed the legislature before
[2:57] Speaker 1: election day. But people had been vot voting already because
[3:01] Speaker 1: of early voting, and according to the majority in the
[3:03] Speaker 1: Virginia Supreme Court, that meant that it was not a
[3:07] Speaker 1: true intervening election between the legislature's vote on the amendment
[3:12] Speaker 1: and the public vote on the amendment, and that was
[3:15] Speaker 1: the problem for the majority of the The center said, well, actually,
[3:17] Speaker 1: what the Constitution was concerned about is a note that
[3:20] Speaker 1: there'd be an election day in between. What the majority said, No,
[3:24] Speaker 1: if the point of the legislative electionists allow the voters
[3:27] Speaker 1: to pass judgment on whether the legislators were right or
[3:30] Speaker 1: wrong to pass the amendment, some vote people have already voted.
[3:33] Speaker 1: That was the theory of the Virginia Supreme Court majority,
[3:37] Speaker 1: and that's what led them to say that this constitutional
[3:40] Speaker 1: amendment allowing them called the Democratic jerry manager to go forward,
[3:44] Speaker 1: was improperly adopted.
[3:46] Speaker 2: How likely do you think it is that the Supreme
[3:49] Speaker 2: Court will take the case.
[3:51] Speaker 1: That strikes me as highly unlikely that the US Supreme
[3:54] Speaker 1: Court would step in because it turns very much on
[3:58] Speaker 1: Virginia constitutional law. The court's decision was this simply did
[4:03] Speaker 1: not satisfy the procedures in the Virginia Constitution for amending
[4:07] Speaker 1: the constitution. So I think it'd be highly unlikely that
[4:10] Speaker 1: the US Supreme Court would step in.
[4:12] Speaker 2: There are many Republican states in the South that have
[4:16] Speaker 2: been changing their maps, and there are court challenges in Tennessee, Florida, Missouri,
[4:24] Speaker 2: and I'm sure others. Do any of those challenges strike
[4:29] Speaker 2: you as ones that the Democrats challenging the maps might
[4:35] Speaker 2: be successful in.
[4:37] Speaker 1: I think the best bet is in Florida because Florida
[4:41] Speaker 1: also has a state constitutional amendment that actually prohibits partis
[4:45] Speaker 1: in jerrymandering. So, as you know, the US Supreme Court
[4:48] Speaker 1: says that parties in jerry mandering is non justiciable for
[4:51] Speaker 1: federal constitutional purposes, but there is a provision of the
[4:54] Speaker 1: Florida Constitution that restricts partisan jerry mandering, and so there
[4:58] Speaker 1: is a chance. No, again, it's either an entirely Republican
[5:02] Speaker 1: or a nearly entirely Republican state supreme court, so it's
[5:05] Speaker 1: not clear what they will do. But it's currently being
[5:07] Speaker 1: litigated in a state district court in Florida. I think
[5:11] Speaker 1: that's got the chance. I mean, I don't want to
[5:14] Speaker 1: put any odds on it, but at least I think
[5:16] Speaker 1: there they have a legal theory, which you know, I
[5:19] Speaker 1: think has not been rejected. In Missouri, I think there's
[5:23] Speaker 1: also a state argument. There's an attempt to put a
[5:26] Speaker 1: ballot proposition on the Missouri constitution that would undo the gerrymander,
[5:31] Speaker 1: and the question is what does that do to the
[5:34] Speaker 1: gerrymander while the ballot proposition is pending, And so far
[5:38] Speaker 1: the Missouri courts have said the fact that there's a
[5:40] Speaker 1: pending ballid proposition doesn't block the gerrymander. The other states,
[5:44] Speaker 1: I'm not quite sure what the argument is going to be.
[5:46] Speaker 1: I think there might be efforts in some of these
[5:49] Speaker 1: states to argue that the state's redistricting efforts are based
[5:53] Speaker 1: on intentional racial discrimination. The Supreme Court said that argument
[5:57] Speaker 1: is still a valid argument for striking down a plant,
[6:00] Speaker 1: but it's going to be very hard to win on that,
[6:03] Speaker 1: especially since the Supreme Court has shown itself to be
[6:06] Speaker 1: very unlikely to find that states have engaged in intentional
[6:10] Speaker 1: racial discrimination when the states have an argument that what
[6:13] Speaker 1: they're doing is part is in jerrymandering.
[6:16] Speaker 2: Looking forward to the next general election, right now, a
[6:21] Speaker 2: lot of the northern Democratic led states have commissions in
[6:26] Speaker 2: place thanks stopping them from doing the gerrymandering that the
[6:29] Speaker 2: southern states are doing. But given time and perhaps the
[6:34] Speaker 2: will of the Democratic legislators, could those be changed, and
[6:38] Speaker 2: could Democratic states then start doing gerrymandering. For example, New
[6:43] Speaker 2: York already the governor has put it on the table
[6:46] Speaker 2: for legislators.
[6:48] Speaker 1: It's certainly possible, And you're right, it's been raised in
[6:50] Speaker 1: New York again as New York has something as a rule.
[6:53] Speaker 1: It's a little bit like the Virginia rule. It's not
[6:55] Speaker 1: the same that basically says, if you're going to amend
[6:58] Speaker 1: the Constitution, it's got to be approved by two legislatures
[7:04] Speaker 1: with a legislative election intervening in between. So for this
[7:09] Speaker 1: to happen, though, the New York legislature would have to pass,
[7:13] Speaker 1: really propose a constitutional amendment to the state constitution because
[7:17] Speaker 1: New York State also has a redistricting amendment which bars
[7:20] Speaker 1: gerrymanderin the legislature would have to pass that amendment this
[7:25] Speaker 1: year in twenty six, and then take it up and
[7:28] Speaker 1: pass it again next year in twenty seven, because there's
[7:31] Speaker 1: a legislative election this fall, and then it would go
[7:34] Speaker 1: to the voters, presumably in November of twenty seven. Now
[7:39] Speaker 1: as of now mid May, so legislature has not passed this.
[7:43] Speaker 1: They could, I mean, they have time, but they would
[7:45] Speaker 1: have to do that. And I don't know if what
[7:47] Speaker 1: the procedure is in other states, but that would be
[7:49] Speaker 1: what they'd have to do in New York.
[7:51] Speaker 2: Let's turn now to the legal fights that have reached
[7:53] Speaker 2: the appellate courts over the Trump administration's attempts to get
[7:58] Speaker 2: states to turn over their voter roles. First of all,
[8:02] Speaker 2: why does the Trump administration want these voter roles from
[8:05] Speaker 2: the states.
[8:06] Speaker 1: We don't really know. I mean, their ostensible justification is
[8:11] Speaker 1: to make sure that the states are complying with the
[8:14] Speaker 1: rules and making sure there are no non citizens on
[8:17] Speaker 1: the voter rules, and in general, to say whether the
[8:19] Speaker 1: states are complying with various federal voter registration requirements and
[8:24] Speaker 1: where the states are keeping their roles clean. Essentially, that's
[8:28] Speaker 1: their argument. It's part of, I think a more general
[8:31] Speaker 1: effort by the administration. President issued those two executive orders,
[8:35] Speaker 1: which so far haven't really accomplished anything, but have been
[8:38] Speaker 1: trying to have some nationalize the election process, and maybe
[8:42] Speaker 1: they're trying to intimidate state and local election officials. What
[8:45] Speaker 1: they're asking for in all of the states is state
[8:49] Speaker 1: voter registration lists, which provides information about every voter, including
[8:53] Speaker 1: their social Security numbers or their driver's licenses, their addresses, etc.
[8:58] Speaker 1: There is no guarantee that the administration will maintain privacy,
[9:03] Speaker 1: and beyond that, there is a question of what do
[9:05] Speaker 1: they intend to do with it.
[9:06] Speaker 2: Have administrations prior to this sought voter rolls?
[9:11] Speaker 1: Not them aware of accepting extremely unusual circumstances like the
[9:15] Speaker 1: First Law is a civil rights that was passed before
[9:17] Speaker 1: nineteen sixty, where administrations were using it to go after
[9:21] Speaker 1: states that were keeping black people off the ballot. So
[9:24] Speaker 1: they were looking for things like voter registration applications to
[9:28] Speaker 1: see how they were being treated. But I'm not aware
[9:31] Speaker 1: of any administration actually asking for the complete voter registration
[9:35] Speaker 1: list that a state maintains and presumably upgrades on a
[9:40] Speaker 1: regular basis as people drop off or come on.
[9:44] Speaker 2: Quite a few Republican led states have turned over the
[9:48] Speaker 2: voter rolls. Democratic led states have not turned over the
[9:51] Speaker 2: voter rolls, and some Republican led states have not turned
[9:56] Speaker 2: them over. And at the six trials held over the
[9:59] Speaker 2: refusal to turn over the voter rolls, the Trump administration
[10:03] Speaker 2: lost every single trial, including those before Trump appointed judges.
[10:09] Speaker 1: Yeah, my count is that thirty states and the District
[10:13] Speaker 1: of Columbia have said no, and twelve states have gone along.
[10:17] Speaker 1: You're right. All twelve states that have gone along have
[10:20] Speaker 1: been ones with Republican chief elections officers. But as you
[10:23] Speaker 1: also point out, a number of the states that said
[10:25] Speaker 1: no are so called red states. Idaho said no, Oklahoma
[10:30] Speaker 1: said no, Kentucky said no, West Virginia said no, Utah
[10:34] Speaker 1: said no. So it's mostly democratic states that have been
[10:37] Speaker 1: saying no, but there have been some Republican states as
[10:40] Speaker 1: well who insists they're the ones who were in charge
[10:42] Speaker 1: of elections, and they've been doing great job maintaining the
[10:46] Speaker 1: accuracy and purity of their roles, and they don't need Washington.
[10:48] Speaker 1: You're right, though the Jespartment has sued some of the
[10:52] Speaker 1: states that have said no. So far, I think they've
[10:54] Speaker 1: only sued democratic states like California and Oregon and Michigan,
[11:00] Speaker 1: although there was also a suit against Arizona, which currently
[11:03] Speaker 1: has Democratic leadership but might be considered more of a
[11:05] Speaker 1: purple state. And you're right. Every single one of these
[11:08] Speaker 1: lawsuits by the Justice Department has been rejected by district judges,
[11:12] Speaker 1: including most recently in Arizona, where it was a Trump
[11:15] Speaker 1: appointed judge who said there's no basis in the law
[11:19] Speaker 1: for requiring the states to give the Justice Department this information.
[11:23] Speaker 2: Are the courts that have ruled using the same analysis
[11:27] Speaker 2: or reasoning or is it different?
[11:30] Speaker 1: Pretty much? I mean, some of them have gone off
[11:31] Speaker 1: on technical grounds, but I thought the most substant one
[11:35] Speaker 1: was the most recent one, which was the one in
[11:37] Speaker 1: Arizona where the judge that basically said, I read the statute.
[11:42] Speaker 1: The statute says this is the kind of information the
[11:44] Speaker 1: Justice partner is entitled to ask for. Mostly or entirely
[11:48] Speaker 1: it's information that voters submit to the government, like basically
[11:53] Speaker 1: registration applications. There were two or three things like that,
[11:57] Speaker 1: and it nowhere says that there's a requirement to turn
[12:01] Speaker 1: over a list that's generated by the state itself. And
[12:05] Speaker 1: then she pointed out there's some internal inconsistencies because there
[12:09] Speaker 1: are restrictions on the information that states required to turn over.
[12:13] Speaker 1: There's restrictions on the ability of the states to alter
[12:17] Speaker 1: that information. But of course the states are constantly required
[12:20] Speaker 1: by federal law to alter their voter registration lists as
[12:24] Speaker 1: people sign up or people move and come off. And
[12:27] Speaker 1: she basically says there's in fact, there's a contradiction there
[12:30] Speaker 1: because the information that the Civil Rights Law requires the
[12:34] Speaker 1: states to turn over is voter supplied information, not state
[12:38] Speaker 1: generated information, and federal law prohibits the states in effect
[12:43] Speaker 1: from tampering with that voter supplied information. The federal law
[12:46] Speaker 1: requires the states to constantly revise their state voter registration list.
[12:51] Speaker 1: So it's a fairly short of Pang came out in
[12:54] Speaker 1: late April, but it's pretty pretty effective. And so I know,
[12:58] Speaker 1: the Justice Park and just they released a forty page
[13:02] Speaker 1: internal document about why they think they're right, but so
[13:05] Speaker 1: far they have not succeeded in any court.
[13:09] Speaker 2: And at the Sixth Circuit arguments today, one of the
[13:12] Speaker 2: judges questioned why the DOJ's Office of Legal Counsel issued
[13:17] Speaker 2: an advisory opinion only one day before the arguments. The
[13:22] Speaker 2: Sixth Circuit arguments are over a case involving Michigan. The
[13:26] Speaker 2: Ninth Circuit arguments next week are over California and Oregon.
[13:32] Speaker 2: Now are these are based on the Civil Rights Act.
[13:36] Speaker 1: One of the early civil rights acts, actually even before
[13:40] Speaker 1: the big Civil Rights Ack epis he formed sixty five.
[13:42] Speaker 1: But when the federal government is beginning to get into this,
[13:45] Speaker 1: and one of them that I'm talking about is the
[13:47] Speaker 1: one that gives this Dress Spartment the power to ask
[13:49] Speaker 1: to get from the states certain voter registration materials that
[13:56] Speaker 1: and this was but the Arizona judge emphasized that the
[13:59] Speaker 1: voters give to the state. And so one argument is that,
[14:02] Speaker 1: you know, it doesn't apply to stuff the states generate themselves.
[14:06] Speaker 1: There are other arguments relate to the National Voter Registration
[14:09] Speaker 1: Act from the nineteen nineties and HAVA, the Help America
[14:12] Speaker 1: Vote Act from the two thousands. I think two thousand
[14:15] Speaker 1: and six, although I'm not sure the exact date, which
[14:18] Speaker 1: you're generally about states maintaining accurate voter rules but don't
[14:25] Speaker 1: explicitly authorize the Just Department to do what's doing. So,
[14:29] Speaker 1: I think the Just Department is claiming a kind of
[14:31] Speaker 1: a general right to oversee the effectiveness of these statutes,
[14:37] Speaker 1: even in the absence of anything that specifically gives them
[14:40] Speaker 1: the power to do this, or in the advice of
[14:43] Speaker 1: any clear allegations that the states are doing a bad job.
[14:48] Speaker 2: Could the losing party is there time for an appeal
[14:53] Speaker 2: to the Supreme Court?
[14:55] Speaker 1: I would imagine so, I mean, it's not quite clear
[14:57] Speaker 1: that there's any what the urgency of this is. I
[15:01] Speaker 1: guess they might one argue that they need to have
[15:02] Speaker 1: the role of information before the midterms, but I would
[15:06] Speaker 1: imagine that in any state that loses, this would go
[15:09] Speaker 1: immediately to the Supreme Court.
[15:11] Speaker 2: And it appears that the Justice Department had a tough
[15:14] Speaker 2: time at the Sixth Circuit today, where the judges kept
[15:18] Speaker 2: pressing the DOJ lawyer on how to parse the phrase
[15:23] Speaker 2: come into possession in a law the agency is using
[15:27] Speaker 2: to try to force the state elections officials to turn
[15:30] Speaker 2: over the unredacted voter roles. I'm just wondering if all
[15:35] Speaker 2: this before the election, the gerrymandering, you know, whether this
[15:40] Speaker 2: is going to make people very confused when they do
[15:44] Speaker 2: go to vote. I mean, I don't know in some
[15:45] Speaker 2: states if they will find out where their voting district
[15:48] Speaker 2: is and wonder if the voting is just going to
[15:50] Speaker 2: be a mess.
[15:52] Speaker 1: Well, certainly Alabama and Louisiana totally messed up their primaries.
[15:56] Speaker 1: In both states, the primaries had already begun when the
[16:00] Speaker 1: state government socided we're going to change the districts, so
[16:03] Speaker 1: those voters are can be totally confused. I mean, hopefully
[16:07] Speaker 1: everything will be settled down by the fall. And of
[16:10] Speaker 1: course this disclosure of the voter information doesn't directly affect voting,
[16:14] Speaker 1: although it could make voters nervous, but the voter registration
[16:16] Speaker 1: and authority exists, it won't be changed whether you vote
[16:20] Speaker 1: or not. But yeah, I mean, I think there's certainly
[16:23] Speaker 1: in the states that are doing all this last minute
[16:26] Speaker 1: redistricting in Tennessee, in Florida, now in Alabama and Louisiana,
[16:32] Speaker 1: it's going to be chaotic, and especially in Alabama Louisiana,
[16:36] Speaker 1: where there were voting, and so, in fact, what I
[16:38] Speaker 1: think the Louisiana state did, and I think maybe Alabama
[16:41] Speaker 1: as well in affects split their primaries and said, we
[16:44] Speaker 1: can run the primaries for the state legislature, but we're
[16:47] Speaker 1: not going to run the primary for the fact is
[16:49] Speaker 1: a primary for Senate in Louisiana, which I think is
[16:53] Speaker 1: still going forward, but we're not going to run the
[16:55] Speaker 1: primary for Congress until we get the district lines up.
[16:58] Speaker 2: Thanks so much, rich As. That's Professor Richard Brafald of
[17:02] Speaker 2: Columbia Law School. The government has begun refunding some of
[17:09] Speaker 2: the one hundred and sixty six billion dollars collected from
[17:13] Speaker 2: tariffs that the Supreme Court declared were illegal, those tariffs
[17:17] Speaker 2: that were collected under AIPA. At the same time, the
[17:20] Speaker 2: Trump administration is fighting a legal battle to defeat the
[17:24] Speaker 2: newer tariffs Trump imposed immediately following the Supreme Court's decision.
[17:30] Speaker 2: Joining me is Dave Townshend, an international trade expert and
[17:33] Speaker 2: a partner at Dorsey and Whitney, basically give us an
[17:37] Speaker 2: update on the Customs and Border Patrol, has confirmed that
[17:43] Speaker 2: it is close to clearing what thirty five billion.
[17:47] Speaker 3: Dollars US Customs and Border Protection issued a statement to
[17:53] Speaker 3: the Court of International Trade this week providing an update
[17:58] Speaker 3: to the Court about the progress it was making and
[18:00] Speaker 3: issuing refunds to US importers for tariffs that were ruled illegal.
[18:06] Speaker 3: The IPA tariffs, and CBP told the Court that it
[18:12] Speaker 3: was making progress, that it had approved over thirty five
[18:17] Speaker 3: billion dollars in payments to US importers and that it
[18:23] Speaker 3: would be issuing that money. It also provided an update
[18:27] Speaker 3: saying that it intended to approve a significant amount more
[18:33] Speaker 3: year in the coming weeks with respect to claims for
[18:37] Speaker 3: the refunds that were already made, and.
[18:40] Speaker 2: Explain why it's important that they're actually starting to hand
[18:44] Speaker 2: the money out what the implications are.
[18:48] Speaker 3: The Court of International Trade directed CBP to issue the
[18:52] Speaker 3: refunds to importers following the Supreme Court's ruling that the
[18:56] Speaker 3: IPA tariffs were unlawful and the order of the Court
[19:01] Speaker 3: of International Trade remains appealable by the United States. Was
[19:06] Speaker 3: issued earlier this year, and under the rules for appeal,
[19:11] Speaker 3: they could as of June appeal the order directing them
[19:17] Speaker 3: to issue the refunds. In the meantime, the Court had
[19:22] Speaker 3: asked CBP to demonstrate it was making progress and issuing
[19:28] Speaker 3: the refunds to the importers, which is what led to
[19:31] Speaker 3: the update that CBB provided earlier this week. And I
[19:36] Speaker 3: think it's significant that it told the court it was
[19:41] Speaker 3: sending thirty five billion dollars more than thirty five billion
[19:45] Speaker 3: dollars to the US importers in light of the fact
[19:48] Speaker 3: that the CIT order remains appealable.
[19:51] Speaker 2: I mean, is it difficult to get the tariff refunds
[19:54] Speaker 2: or is it automated and just smooth.
[19:57] Speaker 3: The refund process has been pretty smooth to date. Customs
[20:02] Speaker 3: CDP launched what it calls CAPE, which is a module
[20:07] Speaker 3: within its Automated Commercial Environment allowing importers to submit a
[20:12] Speaker 3: declaration asking for the refunds. That occurred on April twentieth.
[20:19] Speaker 3: CVP had said it would take sixty to ninety days
[20:23] Speaker 3: for them to review the declarations asking for the refunds
[20:26] Speaker 3: and to issue the refunds. And so you know, given
[20:30] Speaker 3: the date today we're mid May, they're moving more quickly
[20:34] Speaker 3: than they said they thought they could, and have already
[20:37] Speaker 3: begun issuing the refunds in advance of the sixty to
[20:42] Speaker 3: ninety days they thought it would take for them to
[20:44] Speaker 3: do so.
[20:46] Speaker 2: So as these refunds proceed, the Trump administration is simultaneously
[20:52] Speaker 2: fighting a legal effort to defeat his newer tariffs. Tell
[20:57] Speaker 2: us about the international trade courts recent decision on that
[21:03] Speaker 2: or recent order.
[21:04] Speaker 3: The President, after the Supreme Court had ruled the IPA
[21:08] Speaker 3: tariffs were unlawful, issued a global import tariff that applied
[21:13] Speaker 3: to nearly all goods coming into the United States of
[21:16] Speaker 3: ten percent under what's called Section one twenty two, and
[21:21] Speaker 3: US importers and twenty some states acting as plaintiffs filed
[21:28] Speaker 3: acclaim before the Court of International Trade asking to find
[21:31] Speaker 3: that the imposition of that ten percent global tariff was unlawful.
[21:35] Speaker 3: Last week, the Court of International Trade agreed and held
[21:39] Speaker 3: that Section one twenty two did not authorize the ten
[21:43] Speaker 3: percent tariff that that the administration had imposed, and so
[21:48] Speaker 3: the Court of International Trade ordered the United States to
[21:51] Speaker 3: cease collecting the ten percent tariff, at least with respect
[21:54] Speaker 3: to the importer plaintiffs before it, and then also ordered
[21:58] Speaker 3: the United States issue refunds of the Section one twenty
[22:02] Speaker 3: two tariffs that those importers had paid since issuance of
[22:07] Speaker 3: that court ruling. The United States immediately appealed asked the
[22:11] Speaker 3: US Court of Appeals for the Federal Circuit to pause
[22:14] Speaker 3: the order requiring them to stop collecting the one twenty
[22:18] Speaker 3: two tariffs, and just yesterday the Court of Appeals for
[22:22] Speaker 3: the Federal Circuit agreed to pause the effect of the
[22:26] Speaker 3: c ruling. And so for now, at least everybody has
[22:30] Speaker 3: to continue paying the Section one twenty two tariffs. And
[22:33] Speaker 3: this is all familiar to importers because this was very
[22:37] Speaker 3: similar to the way the court challenges unfolded with respect
[22:42] Speaker 3: to the IPA tariffs.
[22:44] Speaker 2: When the tariff decision came down from the Supreme Court,
[22:48] Speaker 2: everyone talked about the different ways that he could impose
[22:51] Speaker 2: tariffs lawfully. To use the wrong section, is there another
[22:55] Speaker 2: law that he could have used so that it wouldn't
[22:57] Speaker 2: face a successful court challenge.
[23:01] Speaker 3: The United States has said it will continue to impose
[23:04] Speaker 3: tariffs under a variety of authorities. And so immediately following
[23:08] Speaker 3: the Supreme Court decision with respect TAIPA, they faced this problem,
[23:13] Speaker 3: which was that they wanted to immediately impose a replacement tariff.
[23:17] Speaker 3: They chose Section one twenty two. It's time limited for
[23:21] Speaker 3: one hundred and fifty days in the July and in
[23:25] Speaker 3: the meantime, they have begun the process to impose tariffs
[23:31] Speaker 3: on what they've referred to as more durable legal authorities,
[23:34] Speaker 3: meaning authorities that they can impose tariffs indefinitely or without
[23:39] Speaker 3: any time limited constraint. They're doing that under what's called
[23:44] Speaker 3: Section three oh one, which allows tariffs in response to
[23:48] Speaker 3: unfair trading practices. The President has been imposing Section three
[23:52] Speaker 3: oh one tariffs on goods from China since twenty eighteen.
[23:56] Speaker 3: Those tariffs were continued under President Biden and have continued
[23:59] Speaker 3: till till today. There are a variety of Section three
[24:03] Speaker 3: oh one investigations ongoing that will allow the President to
[24:08] Speaker 3: impose tariffs under Section three oh one, possibly as early
[24:13] Speaker 3: as July, when the Section one twenty two tariffs expire.
[24:17] Speaker 3: There's also Section two thirty two, which are certain national
[24:21] Speaker 3: security related tariffs. Those have also been imposed in some
[24:24] Speaker 3: respects since twenty eighteen. So the big picture here is
[24:28] Speaker 3: that these Section one twenty two tariffs were like a bridge,
[24:31] Speaker 3: taking US trade policy from AIPA terifs which were held
[24:34] Speaker 3: illegal to these more durable tariffs. But the more durable
[24:38] Speaker 3: tariffs are aren't yet in place, so the one twenty
[24:41] Speaker 3: two tariffs were like a stop gap to allow imposition
[24:45] Speaker 3: of a global tariff that applied to nearly all imports
[24:49] Speaker 3: into the United States.
[24:50] Speaker 2: Do you think that the decision regarding the one twenty
[24:55] Speaker 2: two tariffs, do you think that that's a solid decision
[24:57] Speaker 2: or it might be reversed on appeal.
[25:02] Speaker 3: It certainly could be reversed on appeal. The United States,
[25:06] Speaker 3: in asking the Court of Appeals for the Federal Circuit,
[25:08] Speaker 3: laid out some of its arguments about why it thinks
[25:13] Speaker 3: the Court of International Trade was wrong. Notably, they say
[25:17] Speaker 3: that the statute doesn't define the key phrase that the
[25:21] Speaker 3: administration was relying on to impose Section one twenty two tariffs,
[25:24] Speaker 3: which is a persistent balance of payments problem. That term
[25:29] Speaker 3: of art isn't defined, and so part of the administration's
[25:34] Speaker 3: argument is that the Court of International Trade didn't give
[25:36] Speaker 3: them sufficient deference in finding that circumstances existed to allow
[25:41] Speaker 3: them to impose the global tariff as a result of
[25:44] Speaker 3: a balance of payments deficit. I think at the Court
[25:47] Speaker 3: of Appeals they'll certainly take a fresh look at this
[25:53] Speaker 3: and could certainly find their own reasons either to uphold
[25:57] Speaker 3: or strike down the tariffs. Again from what the Court
[26:01] Speaker 3: of International Trade said, So, you know, I think it'll
[26:05] Speaker 3: be you know, sort of re fought again entirely at
[26:08] Speaker 3: the appellate level, and it's really tough to predict what
[26:12] Speaker 3: the outcome will be.
[26:13] Speaker 2: Why grant to stay. The government is claiming it would
[26:17] Speaker 2: face irreparable harm. What irreparable harm? I mean, they just
[26:21] Speaker 2: had the Supreme Court undoing tariffs and we see refunds now,
[26:25] Speaker 2: so where's the irreparable harm.
[26:27] Speaker 3: The administration points to the need to continue imposing tariffs
[26:33] Speaker 3: as a policy choice that they've made, and the fact
[26:36] Speaker 3: that importers might rush to import goods absent the tariffs.
[26:40] Speaker 3: They say that they've negotiated a series of trade agreements
[26:45] Speaker 3: that are premised on the idea that that tariffs are
[26:49] Speaker 3: imposed on goods coming into the United States. And I
[26:53] Speaker 3: think the Federal Circuit followed the path that it did
[26:57] Speaker 3: under APA, which was to allow the continued imposition of
[27:00] Speaker 3: the tariffs. And I think the court here is crediting
[27:03] Speaker 3: the fact that the United States has said that it
[27:07] Speaker 3: can repay the tariffs if the tariffs are ultimately found illegal.
[27:10] Speaker 3: And obviously, as we started with, we've seen that's the case.
[27:14] Speaker 3: Now that it has begun repaying importers for the IPA
[27:18] Speaker 3: tariffs that were held to be illegal. One interesting aspect
[27:22] Speaker 3: of the one twenty two case is that it raises
[27:28] Speaker 3: significant issues about what deference, if any, is owed to
[27:31] Speaker 3: the executive branch in interprening an ambiguous statute, including in
[27:37] Speaker 3: the realm of foreign affairs. I mean, I think if
[27:40] Speaker 3: you were under a framework of Chevron, where a court
[27:43] Speaker 3: was supposed to uphold any reasonable interpretation of what the
[27:49] Speaker 3: executive branch, how the executive branch interprets the statute, there'd
[27:54] Speaker 3: be a stronger case for the United States here to
[27:57] Speaker 3: uphold what they did. And I think one of the
[28:01] Speaker 3: interesting legal aspects of what the Court of International Trade
[28:03] Speaker 3: held here is they're looking for that one correct legal
[28:07] Speaker 3: interpretation under lolver Bright is a Supreme Court case striking
[28:11] Speaker 3: down Chevron, and so thus found that the United States
[28:15] Speaker 3: acted unlawfully in the way it was interpreting Section one
[28:18] Speaker 3: twenty two.
[28:19] Speaker 2: The Trump administration is certainly keeping the Court of International
[28:23] Speaker 2: Trade busy, that's for sure. Thanks so much, Dave. That's
[28:27] Speaker 2: Dave Townsend of Dorsey and Whitney. And that's it for
[28:31] Speaker 2: this edition of The Bloomberg Law Show. Remember you can
[28:33] Speaker 2: always get the latest legal news on our Bloomberg Law Podcast.
[28:37] Speaker 2: You can find them on Apple Podcasts, Spotify, and at
[28:40] Speaker 2: www dot bloomberg dot com, slash podcast slash Law, and
[28:45] Speaker 2: remember to tune into The Bloomberg Law Show every weeknight
[28:48] Speaker 2: at ten pm Wall Street Time. I'm June Grosso and
[28:52] Speaker 2: you're listening to Bloomberg

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