Legal tug-of-war over tariffs

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https://www.nytimes.com/2025/05/29/business/economy/trump-tariffs-ruling-businesses.html

Tariff Ruling Gives Businesses Hope, but They’re Soon Unmoored Again

Companies welcomed a court decision striking down President Trump’s tariffs. Then a stay of that ruling left no one breathing easy.

By Lydia DePillis, The New York Times, May 29, 2025

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A three-judge panel of the U.S. Court of International Trade ruled that the Trump administration had acted illegally in using an emergency powers law to impose 30 percent tariffs on goods from China, 25 percent tariffs on most goods from Mexico and Canada, and 10 percent on everyone else. The court gave the White House 10 days to halt the new duties.

Hours later, a higher court stayed the decision.

If the initial ruling sticks, it will preclude the return of steeper “reciprocal” tariffs that Mr. Trump paused for 90 days in early April. It might even allow companies that have paid the emergency tariffs over the past several months to claim refunds, already an established process at Customs and Border Protection…

But the Trump administration quickly appealed the [adverse] ruling and received the stay — keeping the tariffs in place — while the U.S. Court of Appeals for the Federal Circuit considers the case. Appeals could continue all the way to the Supreme Court…

The Retail Industry Leaders Association, a trade group for large retailers, also cautioned its members that the White House could try to impose tariffs through other avenues…[end quote]

This kind of chaos makes it very difficult for companies to operate.

It’s not clear that the Trump administration would obey court decisions anyway. After all, the administration refused to return Kilmar Abrego Garcia, an immigrant sent to a prison in El Salvador, despite a Supreme Court order… and he’s just one insignificant immigrant, not billions of dollars of import tariffs.

Wendy

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It’s not clear that the Trump administration would obey court decisions anyway.

The POTUS’ press secretary is repeating the well worn narrative about “unelected judges” interfering with the regime’s policy decisions.

There is a non-zero chance that, even if the SCOTUS rules against the tariffs, the regime will simply ignore the court.

Steve

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I think that’s a pretty close to zero chance.

Oh, not that “the regime” wouldn’t want to tell the courts to pound sand - but the practicalities of this are very different than some of the other cases. In immigration cases, for example, the decisions are being made at the very highest levels of government not to do certain things, and the officials are largely going to be protected by immunity.

That’s not the case in the specific context that a dispute over tariffs would arise. A shipment of goods comes in from China, the importer applies the tariff rates adopted by Congress, and proffers the import duty of $X. The local customs official that’s responsible for signing off and letting the goods into the country says, “no, the import duty is 500% of $X.” So the importer runs to court and files a civil lawsuit against that guy for economic damages for unlawfully holding up his shipment without any authorization in law.

How’s that local official going to react? Qualified immunity won’t protect him the way it would Marco Rubio declining to call up the government of El Salvador. Letting in shipments after they have paid a tariff is a ministerial act, and there’s zero legal ambiguity once the SCOTUS has ruled. In those circumstances, qualified immunity doesn’t apply. And the President can’t pardon people for civil matters.

I just don’t see how they could get all the local customs officials around the country to agree to go along with violating a court order like that.

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Are they members of a union? If not, they get a lesson in “at will employment”. Even if they are in a union, they can probably still be fired for refusing to do their job as directed. If the customs official tries to contest his firing, he has the entire force of the DoJ coming down on him, and he can’t find a lawyer willing to take his case, for fear of the law firm facing “retribution” from the POTUS. Keep in mind, SCOTUS has ruled that the POTUS can not be charged for a crime.

Steve

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Sure. But they have to have someone replace them. And those people will be in the same position - and know it going in. No one’s going to take a job that’s just going to end in their bankruptcy and ruination. At the end of the day, only POTUS has immunity from civil lawsuits, and the dollar values will get too big too fast for this to be a practical bulwark against the court’s orders.

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If individual Proles bore direct liability for doing what their bosses ordered them to, no-one would work anywhere.

Steve

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They do, for the most part (though not legal advice). If you work for Domino’s and they order you to speed, then you’re directly liable if someone gets hurt. If your company orders you to illegally dump some toxic chemicals and you get caught, you’ll be directly liable as well. Etc. Usually the legal question is whether the company is also liable, not whether the person who actually does the wrongful act is liable in the first place. All the Proles are liable for their misdeeds even if their boss tells them to do it - yet still they labor.

Government employees are a little different, in that they typically have some sort of qualified immunity. If they’re acting in their official capacity and doing what they reasonably think the law requires, they can’t be sued personally for damages (though the government can, if it turns out their actions were in fact wrongful).

That wouldn’t apply in this context, so the customs officials would be hung out to dry if they just refused to follow a court order.

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Pretty sure the Erin Brockovich case put the responsibility squarely on the corporation that did the toxic dumping, not on the employees who were “just following orders.”

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Different fact pattern. The toxic dumping in that case was not alleged to have been conducted illegally - the case was brought in negligence and fraud, which were actions that the corporation had taken and not individuals. The “proles” that did the dumping of the wastewater into the ponds (or more likely, the proles that built the pipes that led to the ponds, since the wastewater almost certainly wasn’t dumped by hand) would neither have had the information necessary for negligence imputed to the corporation nor would have been involved in the false/misleading statements that underlay the fraud charges.

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