The Justice Department today filed its brief in American Institute for International Steel v. United States before the U.S. Court of Appeals for the Federal Circuit. At issue are President Trump’s steel tariffs. Last month, the Cato Institute filed a brief in support of the appellants, who are businesses that rely on imported steel and have been harmed by the tariffs.
The government’s response brief, alas, is excellent.
Faced with arguments that the president is unbound, the government points to putative procedural rigor behind the tariffs. In response to arguments that the Constitution empowers Congress—not the president—to regulate foreign commerce, the government stresses the president’s executive authority over foreign affairs. Quite obviously, the Justice Department’s brief reflects the work of skilled lawyers.
Notably, Cato’s brief seems to have registered with the government. On the one hand, the government dismisses Cato’s input altogether. In the brief’s first footnote (page 15), the Justice Department alleges that we tried to “expand the issues of the appeal beyond those presented by the appellant in its opening brief,” and, therefore, that the court should not pay attention to our arguments. Notwithstanding this footnote, the government references the Cato Institute by name in the body of the brief and, furthermore, spends an entire subsection (III.B) addressing Cato’s arguments about judicial oversight.
Here, I’d be remiss if I failed to rebut the government’s incorrect charge that Cato improperly attempted to expand the scope of the appeal before the Federal Circuit. In a nutshell, Cato’s brief demonstrates that the trial court mistakenly denied itself the authority to review the president’s steel tariffs. Because all federal courts always have jurisdiction to determine the bounds of their own jurisdiction, Cato’s contribution falls squarely within the proper purpose of a friend‐of‐the‐court brief. In its amicus brief, moreover, Cato argues that if judicial review is unavailable, then there can be no “intelligible principle” to limit the president’s actions, which is precisely what the appellants claim. Of course, the best evidence for the appropriateness of Cato’s brief is the fact that the government spent so many words engaging with Cato’s arguments. It doesn’t make much sense for the government to say that we should be ignored, but then to respond to us. As always, actions speak louder than words.