Oregon v. United States

Slip Op. 26-47

UNITED STATES COURT OF INTERNATIONAL TRADE

THE STATE OF OREGON, ET AL.,

Plaintiffs,

Before: Mark A. Barnett, Claire R. Kelly,

and Timothy C. Stanceu, Judges

v.

Court No. 26-01472-3JP

UNITED STATES, ET AL.,

Defendants.

BURLAP AND BARREL, INC., ET AL.,

Plaintiffs,

Before: Mark A. Barnett, Claire R. Kelly,

v. and Timothy C. Stanceu, Judges

UNITED STATES, ET AL., Court No. 26-01606-3JP

Defendants.

OPINION AND ORDER

[Granting Plaintiffs’ motions for summary judgment and entering a permanent injunction

for The State of Washington, Burlap and Barrel, Inc., and Basic Fun, Inc.; dismissing the

claims of The State of Oregon, The State of Arizona, The State of California, The State

of New York, The State of Colorado, The State of Connecticut, The State of Delaware,

The State of Illinois, Office of the Governor ex rel. Andy Beshear, in his official capacity

as Governor of the Commonwealth of Kentucky, The State of Maine, The State of

Maryland, The Commonwealth of Massachusetts, The State of Michigan, The State of

New Jersey, The State of Minnesota, The State of Nevada, The State of New Mexico,

The State of North Carolina, Josh Shapiro, in his official capacity as Governor of the

Commonwealth of Pennsylvania, The State of Rhode Island, The State of Vermont, The

Commonwealth of Virginia, and The State of Wisconsin, for lack of standing; denying as

moot Plaintiffs’ alternative motions for preliminary injunction.]

Dated: May 7, 2026

Brian S. Marshall, Senior Assistant Attorney General, Oregon Department of Justice, of

Portland, Or., argued for Plaintiffs The State of Oregon, The State of Arizona, The State

Court Nos. 26-01472 & 26-01606 Page 2

of California, The State of New York, The State of Colorado, The State of Connecticut,

The State of Delaware, The State of Illinois, Office of the Governor ex rel. Andy

Beshear, in his official capacity as Governor of the Commonwealth of Kentucky, The

State of Maine, The State of Maryland, The Commonwealth of Massachusetts, The

State of Michigan, The State of Minnesota, The State of Nevada, The State of New

Jersey, The State of New Mexico, The State of North Carolina, Josh Shapiro, in his

official capacity as Governor of the Commonwealth of Pennsylvania, The State of

Rhode Island, The State of Vermont, The Commonwealth of Virginia, The State of

Washington, and The State of Wisconsin. Also on the brief for The State of Oregon

were: Dan Rayfield, Attorney General, Benjamin Gutman, Deputy Attorney General,

Dustin Buehler, Special Counsel, and Leanne Hartmann, Samuel Kubernick, and Brian

Collins, Senior Assistant Attorneys General; for The State of Arizona: Kristin K. Mayes,

Attorney General, Joshua D. Bendor, Solicitor General, Syreeta A. Tyrell, Senior

Litigation Counsel, and Timothy E.D. Horley and Jaylia Yan, Assistant Attorneys

General; for The State of California: Rob Bonta, Attorney General, Lara Haddad,

Supervising Deputy Attorney General, and Shiwon Choe, Carolyn Downs, and Samuel

Sokolsky, Deputy Attorneys General; for The State of New York: Letitia James, Attorney

General, Rabia Muqaddam, Chief Counsel for Federal Initiatives, and Stephen

Thompson, Mark Ladov, Natasha Korgaonkar, Special Counsel; for The State of

Colorado: Philip J. Weiser, Attorney General, and Sarah H. Weiss, Senior Assistant

Attorney General; for The State of Connecticut: William Tong, Attorney General, and

Michael Skold, Solicitor General; for The State of Delaware: Kathleen Jennings,

Attorney General, Ian R. Liston, Director of Impact Litigation, Vanessa L. Kassab,

Deputy Attorney General, and Rose Gibson, Assistant Attorney General; for The State

of Illinois: Kwame Raoul, Attorney General, Cara Hendrickson, Executive Deputy

Attorney General, and Gretchen Helfrich, Deputy Chief, Special Litigation Bureau; for

the Office of the Governor ex rel. Andy Beshear, in his official capacity as Governor of

the Commonwealth of Kentucky: S. Travis Mayo, General Counsel, and Laura C.

Tipton, Deputy General Counsel; for The State of Maine: Aaron M. Frey, Attorney

General, and Katherine W. Thompson, Special Counsel; for The State of Maryland:

Anthony G. Brown, Attorney General, and James C. Luh, Senior Assistant Attorney

General; for The Commonwealth of Massachusetts: Andrea J. Campbell, Attorney

General, and Katherine Dirks, Chief State Trial Counsel; for The State of Michigan:

Dana Nessel, Attorney General, and Neil Giovanatti, Assistant Attorney General; for

The State of Minnesota: Keith Ellison, Attorney General, Peter J. Farrell, Deputy

Solicitor General, and Lindsey E. Middlecamp, Special Counsel; for The State of

Nevada: Aaron D. Ford, Attorney General, and K. Brunetti Ireland, Chief of Special

Litigation; for The State of New Jersey, Jennifer Davenport, Attorney General, and Lucy

I. Sprague and David N. Birch, Deputy Attorneys General; for The State of New Mexico:

Raúl Torrez, Attorney General, and Amy Senier, Senior Counsel; for The State of North

Carolina: Jeff Jackson, Attorney General, Laura Howard, Chief Deputy Attorney

General, and Daniel T. Wilkes, Assistant Deputy Attorney General; for Josh Shapiro, in

his official capacity as Governor of the Commonwealth of Pennsylvania: Jennifer

Court Nos. 26-01472 & 26-01606 Page 3

Selber, General Counsel, and Jacob B. Boyer, Deputy General Counsel; for The State

of Rhode Island: Peter F. Neronha, Attorney General, and Alex Carnevale, Special

Assistant Attorney General; for The State of Vermont: Charity R. Clark, Attorney

General, and Ryan P. Kane, Deputy Solicitor General; for The Commonwealth of

Virginia: Jay Jones, Attorney General, and Tillman J. Breckenridge, Solicitor General;

for The State of Washington: Nicholas W. Brown, Attorney General, and Freeman E.

Halle and Todd Sipe, Assistant Attorneys General; for The State of Wisconsin: Joshua

L. Kaul, Attorney General, and Brian P. Keenan, Assistant Attorney General.

Jeffrey M. Schwab, Liberty Justice Center, of Austin, TX, argued for Plaintiffs Burlap

and Barrel, Inc., and Basic Fun, Inc. Also on the brief were Reilly W. Stephens and

James McQuaid.

Brett A. Shumate, Assistant Attorney General, Civil Division, U.S. Department of

Justice, of Washington, DC, argued for Defendants United States, Donald J. Trump, in

his official capacity as President of the United States, Department of Homeland

Security, Markwayne Mullin, in his official capacity as Secretary of the Department of

Homeland Security, United States Customs and Border Protection, Rodney S. Scott, in

his official capacity as Commissioner of United States Customs and Border Protection,

the Executive Office of the President, Jamieson Greer, in his official capacity as United

States Trade Representative, and the Office of the United States Trade Representative.

Also on the brief were Eric J. Hamilton, Deputy Assistant Attorney General, Patricia M.

McCarthy, Director, Commercial Litigation Branch, Claudia Burke, Deputy Director,

Commercial Litigation Branch, Justin R. Miller, Attorney-In-Charge, International Trade

Field Office, Sosun Bae, Senior Trial Counsel, and Collin T. Mathias, Blake W.

Cowman, Catherine M. Yang, and Mathias Rabinovitch, Trial Attorneys.

J. Marc Wheat, Advancing American Freedom, of Washington, DC, for Amici Curiae

Advancing American Freedom, et al.

Ilya Somin, of Arlington, VA, and Joshua A. Claybourn, Jackson Kelly PLLC, of

Evansville, IN, for Amici Curiae Cato Institute and Ilya Somin.

Adam G. Unikowsky, Aaron R. Cooper, Nikita Lalwani, and Debbie L. Berman, of

Jenner & Block LLP, of New York, NY, and Chicago, IL, for Amici Curiae Economists.

Barnett and Kelly, Judges: Plaintiffs 1 in these companion cases contest the

imposition of duties pursuant to Proclamation No. 11012, Imposing a Temporary Import

1 The plaintiffs in Court No. 26-01472, referred to as “State Plaintiffs,” are The State of

Oregon, The State of Arizona, The State of California, The State of New York, The

Court Nos. 26-01472 & 26-01606 Page 4

Surcharge to Address Fundamental International Payments Problems (Feb. 20, 2026),

91 Fed. Reg. 9339 (Feb. 25, 2026) (“Proclamation No. 11012”) invoking Section 122 of

the Trade Act of 1974, 19 U.S.C. § 2312. Compl. (Mar. 5, 2026) (“State Compl.”), ECF

No. 2, Ct. No. 26-01472; Compl. (Mar. 9, 2026) (“Priv. Compl.”), ECF No. 2, Ct. No. 26-

01606. 2 Before the court are Plaintiffs’ motions for summary judgment. Pl. States’ Mot.

for Summ. J., and, in the Alt., for a Prelim. Inj. (Mar. 13, 2026) ECF No. 25, and Pl.

States’ Mem. of Law in Supp. of Mot. for Summ. J., and, in the Alt., for a Prelim. Inj.

(Mar. 13, 2026) (“State Pls.’ Mem.”), ECF No. 25; Pls.’ Mot. for Prelim. Inj. and/or

Summ. J. for Permanent Inj. (Mar. 13, 2026), ECF No. 11, and Mem. in Supp. of Pls.’

Mot. for Prelim. Inj. and/or Summ. J. for Permanent Inj. (Mar. 13, 2026) (“Priv. Pls.’

Mem.”), ECF No. 11. Defendants 3 (“the Government”) filed a single combined

State of Colorado, The State of Connecticut, The State of Delaware, The State of

Illinois, Office of the Governor ex rel. Andy Beshear, in his official capacity as Governor

of the Commonwealth of Kentucky, The State of Maine, The State of Maryland, The

Commonwealth of Massachusetts, The State of Michigan, The State of Minnesota, The

State of Nevada, The State of New Jersey, The State of New Mexico, The State of

North Carolina, Josh Shapiro, in his official capacity as Governor of the Commonwealth

of Pennsylvania, The State of Rhode Island, The State of Vermont, The Commonwealth

of Virginia, The State of Washington, and The State of Wisconsin. The plaintiffs in

Court No. 26-01606, referred to as “Private Plaintiffs,” are Burlap and Barrel, Inc.

(“Burlap and Barrel”) and Basic Fun, Inc. (“Basic Fun”). The court refers to the State

Plaintiffs and the Private Plaintiffs collectively as “Plaintiffs.”

2 Citations to documents filed by State Plaintiffs identify the ECF No. in Ct. No. 26-

001472, and citations to documents filed by Private Plaintiffs identify the ECF No. in Ct.

No. 26-001606. For documents filed on both case dockets, the court references the

ECF No. in Ct. No. 26-01472.

3 Named Defendants are the United States, Donald J. Trump, in his official capacity as

President of the United States, United States Department of Homeland Security,

Markwayne Mullin, in his official capacity as Secretary of the Department of Homeland

Security, United States Customs and Border Protection, and Rodney S. Scott, in his

official capacity as Commissioner of United States Customs and Border Protection, see

Court Nos. 26-01472 & 26-01606 Page 5

opposition brief in response to both motions. Defs.’ Resp. in Opp’n to Mots. For Prelim.

Inj. and Summ. J. (Apr. 3, 2026) (“Defs.’ Resp.”), ECF No. 35. Plaintiffs filed replies. Pl.

States’ Reply in Supp. of Mot. for Summ. J., and, in the Alt., for a Prelim. Inj. (Apr. 7,

2026) (“State Pls.’ Reply”), ECF No. 37; Pls.’ Reply Br. in Supp. of Their Mot. for Prelim.

Inj. and/or Summ. J. for Permanent Inj. (Apr. 7, 2026) (“Priv. Pls.’ Reply”), ECF No. 22.

For the reasons discussed herein, the court grants summary judgment for Private

Plaintiffs and The State of Washington and enters a permanent injunction for those

importer Plaintiffs. The court dismisses without prejudice the claims of the remaining

non-importer Plaintiffs. The court denies as moot Plaintiffs’ motions for a preliminary

injunction.

BACKGROUND

I. Section 122 of the Trade Act of 1974

Article I, Section 8 of the U.S. Constitution vests Congress with the “Power To lay

and collect Taxes, Duties, Imposts and Excises.” U.S. Const. art. I, § 8, cl. 1. Section

122 of the Trade Act of 1974 constitutes a congressional delegation of some of that

authority to the President. Titled “Balance-of-Payments Authority,” Section 122

empowers the President of the United States to impose temporary surcharges up to 15

percent ad valorem when fundamental international payment problems exist. Section

122 of the Trade Act of 1974, Pub. L. No. 93-618, 88 Stat. 1978, 1987–89 (1974)

Summons (Mar. 5, 2026), ECF No. 1, Ct. No. 26-01472, as well as the Executive Office

of the President, Jamieson Greer, in his official capacity as United States Trade

Representative, and the Office of the United States Trade Representative, see

Summons (Mar. 9, 2026), ECF No. 1, Ct. No. 26-01606.

Court Nos. 26-01472 & 26-01606 Page 6

(codified at 19 U.S.C. § 2132)). 4 The statute provides (with bold emphasis on the

provisions relevant to Proclamation No. 11012):

(a) Whenever fundamental international payments problems require

special import measures to restrict imports—

(1) to deal with large and serious United States balance-of-

payments deficits[,]

(2) to prevent an imminent and significant depreciation of the dollar

in foreign exchange markets, or

(3) to cooperate with other countries in correcting an international

balance-of-payments disequilibrium,

the President shall proclaim, for a period not exceeding 150 days

(unless such period is extended by Act of Congress)—

(A) a temporary import surcharge, not to exceed 15 percent ad

valorem, in the form of duties (in addition to those already

imposed, if any) on articles imported into the United States;

(B) temporary limitations through the use of quotas on the

importation of articles into the United States; or

(C) both a temporary import surcharge described in subparagraph

(A) and temporary limitations described in subparagraph (B) . . . .

(b) If the President determines that the imposition of import restrictions

under subsection (a) will be contrary to the national interest of the United

States, then he may refrain from proclaiming such restrictions and he

shall—

(1) immediately inform Congress of his determination, and

(2) immediately convene the group of congressional official

advisers designated under section 2211(a) of this title [section

161(a) in the Trade Act of 1974] and consult with them as to the

reasons for such determination.

(c) Whenever the President determines that fundamental international

payments problems require special import measures to increase imports—

4 Because Congress has not enacted Title 19 into positive law, the version of section

122 contained in the Statutes at Large governs to the extent there is a conflict between

the public law and the U.S. Code. For ease of reference, however, the court cites to 19

U.S.C. § 2132, showing, when necessary, any alterations to or differences from the

Trade Act of 1974. One such conflict, for example, is evident in Section 122(a)(1),

which contains a comma at the end of that clause, while 19 U.S.C. § 2132(a)(1)

contains a period. Compare Trade Act of 1974, § 122, 88 Stat. at 1987 (comma), with

19 U.S.C. § 2132(a)(1) (1976) (period), and 19 U.S.C. § 2132(a)(1) (2018) (period).

Court Nos. 26-01472 & 26-01606 Page 7

(1) to deal with large and persistent United States balance-of-trade

surpluses, as determined on the basis of the cost-insurance-freight

value of imports, as reported by the Bureau of the Census, or

(2) to prevent significant appreciation of the dollar in foreign

exchange markets,

the President is authorized to proclaim, for a period of 150 days (unless

such period is extended by Act of Congress)—

(A) a temporary reduction (of not more than 5 percent ad valorem)

in the rate of duty on any article; and

(B) a temporary increase in the value or quantity of articles which

may be imported under any import restriction, or a temporary

suspension of any import restriction . . . .

(d) (1) Import restricting actions proclaimed pursuant to subsection (a)

shall be applied consistently with the principle of nondiscriminatory

treatment . . . .

(2) Notwithstanding paragraph (1), if the President determines that

the purposes of this section will best be served by action against one or

more countries having large or persistent balance-of-payments surpluses,

he may exempt all other countries from such action . . . .

(e) Import restricting actions proclaimed pursuant to subsection (a) shall

be of broad and uniform application with respect to product coverage

except where the President determines, consistently with the

purposes of this section, that certain articles should not be subject

to import restricting actions because of the needs of the United

States economy. Such exceptions shall be limited to the unavailability of

domestic supply at reasonable prices, the necessary importation of raw

materials, avoiding serious dislocations in the supply of imported goods,

and other similar factors . . . .

19 U.S.C. § 2132(a)–(e) (emphases added).

II. Historical Background Prior to Enactment of Section 122

Congress enacted Section 122 in response to a particular set of economic

circumstances. During the immediate aftermath of World War II, the United States and

other nations undertook negotiations to develop the contours of a future international

monetary and economic system. See The Office of the Historian, Bretton Woods-

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GATT, 1941-1947, U.S. Dep’t of State, https://history.state.gov/milestones/1937-

1945/bretton-woods (last visited May 6, 2026). The negotiations resulted in the

inauguration of the Bretton Woods international monetary system and, simultaneously,

the creation of the International Monetary Fund and the World Bank. See id.; Articles of

Agreement of the Int’l Monetary Fund, Dec. 27, 1945, 60 Stat. 1401, 2 U.N.T.S. 39

(“Bretton Woods Agreements”); see also Bretton Woods Agreements Act, Pub. L. No.

79-171, 59 Stat. 512 (1945) (codified as amended at 22 U.S.C. §§ 286–286x)

(implementing the Bretton Woods Agreements domestically). Under the Bretton Woods

system, the values of foreign currencies were fixed to the value of the U.S. dollar, the

value of which was expressed in terms of gold at a rate of $35 per ounce, the so-called

“gold standard.” Bretton Woods Agreements, Art. IV, Sec. 1(a); Proclamation No. 2072,

48 Stat. 1730 (Jan. 31, 1934); see also Gold Reserve Act of 1934, Pub. L. No. 73-87,

48 Stat. 337 (1934) (delegating authority to the President to fix the value of the U.S.

dollar in relation to gold).

The Bretton Woods system was under increasing strain by the 1960s when the

volume of U.S. dollars in worldwide circulation exceeded domestic gold reserves

redeemable at fixed value, leading to periodic runs on the dollar in foreign exchange

markets. See The Office of the Historian, Nixon and the End of the Bretton Woods

System, 1971-1973, U.S. Dep’t of State, https://history.state.gov/milestones/1969-

1976/nixon-shock (last visited May 6, 2026). In August 1971, President Richard M.

Nixon directed the suspension of the dollar’s international convertibility into gold,

imposed a series of domestic economic measures including wage and price controls,

Court Nos. 26-01472 & 26-01606 Page 9

and instituted a 10 percent “surcharge” on all imports into the United States in response

to the nation’s deteriorating “balance of payments position.” Proclamation No. 4074,

Imposition of Suppl. Duty for Balance of Payments Purposes (Aug. 15, 1971), 36 Fed.

Reg. 15724 (Aug. 17, 1971). In December 1971, the Group of Ten (“G-10”) countries

agreed to a new set of fixed exchange rates that would devalue the dollar in the

Smithsonian Agreement. See Nixon and the End of the Bretton Woods System, 1971-

1973. But by early 1973, speculative pressures in global financial markets led to a

further devaluation of the dollar, and the G-10 economies reached a new agreement

whereby a group of European Community countries would jointly “float” their currencies

against the dollar. See id. This marked the end of the Bretton Woods system of fixed

exchange rates. See id. Later in 1973, after the outbreak of the Arab-Israeli War,

members of the Organization of Petroleum Exporting States (“OPEC”) imposed an oil

embargo against the United States, further straining the U.S. economy and creating

external financial pressures with respect to foreign oil-producing countries. See The

Office of the Historian, Oil Embargo, 1973-1974, U.S. Dep’t of State,

https://history.state.gov/milestones/1969-1976/oil-embargo (last visited May 6, 2026).

The United States Customs Court, the predecessor to the United States Court of

International Trade (“CIT”), heard a challenge to the 10 percent Nixon surcharge in

1974. See Yoshida Int’l, Inc. v. United States (Yoshida I), 73 Cust. Ct. 1, 378 F. Supp.

1155 (1974). Despite not being cited in the underlying Proclamation imposing the

surcharge, the Government argued that the President’s actions were lawful pursuant to

the Trading with the Enemy Act (“TWEA”), a 1917 wartime powers statute. See id., 378

Court Nos. 26-01472 & 26-01606 Page 10

F. Supp. at 1157. The Customs Court disagreed, holding that the surcharge exceeded

the limited emergency authority delegated to the President by TWEA. Id., 378 F. Supp.

at 1172, 1175–76 (“The delegation of such an unrestrained and unbridled authority to

lay duties, indeed, might well be deemed an abdication by the Congress of its

constitutional power to regulate foreign commerce.”). The United States Court of

Customs and Patent Appeals, the predecessor to the United States Court of Appeals for

the Federal Circuit, reversed the Customs Court’s decision, holding that the surcharge

was “within the power constitutionally delegated” to the President by TWEA and

reasoning that “[t]hough such a broad grant may be considered unwise, or even

dangerous, should it come into the hands of an unscrupulous, rampant President,

willing to declare an emergency when none exists, the wisdom of a congressional

delegation is not for us to decide.” United States v. Yoshida Int’l. Inc. (Yoshida II), 63

CCPA 15, 36, 526 F. 2d 560, 583–84 (1975) (footnote omitted).

It was against this backdrop that Congress acted to explicitly delegate tariff

authority to the President, to be used in response to particular and exceptional

economic conditions, under Section 122 of the Trade Act of 1974. After almost two

years of debate, and while the appeal of Yoshida I was pending, Congress enacted

Section 122 in January 1975. See Trade Act of 1974, Pub. L. No. 93-618, 88 Stat. 1979

(1975). The Yoshida II court explicitly observed that “[a] surcharge imposed after Jan.

3, 1975 must, of course, comply with the statute now governing such action,” i.e.,

Section 122, and expressed no view “regarding the existence of authority

Court Nos. 26-01472 & 26-01606 Page 11

for Proclamation 4074 in 1971, from the specific grant of the surcharge authority spelled

out in the Trade Act of 1974.” 63 C.C.P.A. at 34 n.33, 526 F.2d at 582 n.33.

III. Proclamation No. 11012

Pursuant to authority claimed under Section 122, on February 20, 2026, the

President announced a 10 percent ad valorem duty on “all articles imported into the

United States,” with specified exceptions. Proclamation No. 11012, cl. 1; ¶ 14

(exceptions). The duty went into effect at 12:01 a.m. EST on February 24, 2026, and is

set to remain in effect until 12:01 a.m. EST on July 24, 2026, unless “suspended,

modified, or terminated on an earlier date” or “extended by an Act of Congress.” Id., cl.

7. To implement the increased duty rates, Proclamation No. 11012 modified subchapter

III of chapter 99 of the Harmonized Tariff Schedule of the United States (“HTSUS”) to

add new subheadings under HTSUS heading 9903. Id., Annex I.

The Proclamation begins by explaining that, “[s]ometimes, the United States

faces fundamental international payments problems, such as large and serious balance-

of-payments deficits, an imminent and significant depreciation of its currency in foreign

exchange markets, or an international balance-of-payments disequilibrium.” Id. ¶ 1.

According to the President, “[t]hese problems can, among other things, endanger the

ability of the United States to finance its spending, erode investor confidence in the

economy, and distress the financial markets.” Id. The President’s “senior officials

[informed him] that fundamental international payments problems within the meaning of

section 122 exist and that special import measures to restrict imports are required to

address these problems.” Id. ¶ 5. That determination was made “under any reasonable

Court Nos. 26-01472 & 26-01606 Page 12

understanding of the term in the context of section 122.” Id. ¶ 6. The President’s

“advisors have studied different methods of evaluating balance-of-payments deficits,

including calculations based on current-account statistics” and in their view, “under any

of these methods, the United States balance-of-payments position is a large and

serious deficit.” Id.

The President made several findings to support the invocation of section 122.

First, “the United States runs a trade deficit, does not currently make a net income from

the capital and labor that it deploys abroad, and experiences more transfer payments,

on net, flowing out of the country than into the country.” Id. ¶ 7; see also id. ¶ 8 (“[T]he

United States runs a substantial trade deficit” that “contributes to the fundamental

international payments problems facing the United States.”). 5 Second, “the annual

balance on the United States primary income turned negative for the first time since at

least 1960 in 2024” and “in 2024, the United States maintained a current account deficit

of 4.0 percent of gross domestic product (GDP).” Id. ¶ 9. Third, “the net international-

investment position of the United States is in an ongoing decline” and “at the end of

2024, the net international-investment position . . . , as a share of GDP, was negative 90

percent.” Id. ¶ 10. According to the President, “[b]ecause the current account is one of

the primary drivers of changes in the net international-investment position, the atypically

large negative net international-investment position of the United States shows that the

5 “The large, persistent, and serious annual United States goods trade deficit has grown

by over 40 percent in the past 5 years alone, reaching $1.2 trillion in 2024. In 2025, the

United States goods trade deficit remained at approximately $1.2 trillion.” Proclamation

No. 11012 ¶ 8.

Court Nos. 26-01472 & 26-01606 Page 13

United States balance-of-payments deficit is large and serious.” Id. Lastly, “the balance

on secondary income of the United States has been persistently in a deficit since the

1960s.” Id. ¶ 11. In sum, the President identified deficits in trade, primary income,

secondary income, and the current account, and a negative net international-investment

position, to support the tariff imposition. See id. ¶¶ 7–11.

The President thus concluded, on the advice of his advisors, that “an import

surcharge in the form of ad valorem duties is required to address these fundamental

international payments problems” and “deal with the large and serious United States

balance-of-payments deficit.” Id. ¶ 12. That action notwithstanding, the President listed

multiple exceptions based on “the needs of the United States economy.” Id. ¶ 14; see

also id. ¶ 14(a)–(m) (the excepted articles). The President based the exceptions on his

determinations regarding “(1) the unavailability of domestic supply at reasonable prices,

the necessary importation of raw materials, the avoidance of serious dislocations in the

supply of imported goods, or other similar factors; or (2) the fact that the surcharge

would be unnecessary or ineffective in carrying out the purposes of section 122.” Id.

¶ 15. 6

6 Proclamation No. 11012 does not apply to goods “that (i) were loaded onto a vessel at

the port of loading and in transit on the final mode of transit prior to entry into the United

States, before 12:01 a.m. eastern standard time on February 24, 2026; and (ii) are

entered for consumption, or withdrawn from warehouse for consumption, before 12:01

a.m. eastern standard time, February 28, 2026.” Proclamation No. 11012 ¶ 15(2).

Court Nos. 26-01472 & 26-01606 Page 14

IV. U.S. Customs and Border Protection CSMS # 67844987

On February 23, 2026, U.S. Customs and Border Protection (“CBP”) issued

guidance to the trade community regarding the application of Section 122 duties

pursuant to Proclamation No. 11012. See State Compl., Ex. 2, ECF No. 2-2 (“Cargo

Systems Messaging Service (CSMS) # 64844987 – Imposing Temporary Section 122

Duties,” or “CSMS # 64844987”). CSMS # 64844987 set forth the HTSUS

classifications for imported articles subject to the additional duties and for the

exemptions. Id. CSMS # 64844987 also provided guidance regarding articles

classifiable under Chapter 98 of the HTSUS, articles admitted into a U.S. foreign trade

zone, drawback, and classification sequencing in entry summaries. Id.

V. Procedural History

Plaintiffs filed their respective complaints in March 2026. State Compl. (filed Mar.

5, 2026); Priv. Compl. (filed Mar. 9, 2026). State Plaintiffs consist of 24 sovereign

states, represented by various state officials. State Compl. ¶¶ 25–48. Burlap and

Barrel “is a New York-based spice company and ecommerce business,” that “imports

single origin spices from at least 22 countries.” Priv. Compl. ¶ 10. Basic Fun is a

Florida-based toy company that “imports components and finished toy products from

China” and “designs, markets, and sells toys and games . . . to American consumers.”

Id. ¶ 11.

Following a status conference, see Docket Entry, ECF No. 23, Ct. No. 26-01472,

and upon consultation with parties to both actions, the court granted in part and denied

in part the State Plaintiffs’ motion for expedited treatment of their case and entered a

Court Nos. 26-01472 & 26-01606 Page 15

scheduling order, see Scheduling Order (Mar. 12, 2026), ECF No. 24. The parties filed

their respective briefs, and the Government filed an Answer to the complaints,

consistent with the deadlines in the scheduling order. 7 See State Pls.’ Mem.; Priv. Pls.’

Mem.; Defs.’ Resp.; State Pls.’ Reply; Priv. Pls.’ Reply; Answer [State Compl.] (Apr. 3,

2026), ECF No. 34; Answer [Priv. Compl.] (Apr. 3, 2026), ECF No. 15. The court held

oral argument on April 10, 2026. Docket Entry, ECF No. 46; see also Oral Arg.,

https://www.cit.uscourts.gov/ audio-recordings-select-public-court-proceedings.

JURISDICTION

The court has statutory subject matter jurisdiction pursuant to 28 U.S.C. § 1581(i)

(2018 & Supp. II 2022). Section 1581(i) grants the court

exclusive jurisdiction of any civil action commenced against the United

States, its agencies, or its officers, that arises out of any law of the United

States providing for—

(A) revenue from imports or tonnage;

(B) tariffs, duties, fees, or other taxes on the importation of

merchandise for reasons other than the raising of revenue;

(C) embargoes or other quantitative restrictions on the importation

of merchandise for reasons other than the protection of the public

health or safety; or

7 Consistent with the agreement of all Parties, these cases proceeded on motions for

summary judgment by Plaintiffs. The dissent contends that Plaintiffs have failed to

show the absence of a genuine dispute as to any material fact, and that granting of

summary judgment is therefore not appropriate here. Dissent Op. at 30–31. To support

this view, the dissent relies on Plaintiffs’ argument “that in today’s economic

environment it is impossible for large and serious balance-of-payments deficits to exist,”

id. at 30. But this argument hinges entirely on the definition of “balance-of-payments

deficits,” which is a legal issue for the court to resolve. The Parties’ assertions

regarding certain contemporary Bureau of Economic Analysis (“BEA”) measurements,

see id. at 26 n.16, are, moreover, only relevant insofar as they might inform the court’s

interpretation of “balance-of-payments deficits.” Thus, the disputes between the Parties

are properly characterized as questions of law, not of material fact.

Court Nos. 26-01472 & 26-01606 Page 16

(D) administration and enforcement with respect to the matters

referred to in subparagraphs (A) through (C) of this paragraph and

subsections (a)-(h) of this section.

Id. § 1581(i)(1). These cases fall within section 1581(i)(1)(B), “tariffs, duties, fees, or

other taxes on the importation of merchandise for reasons other than the raising of

revenue.” Id. § 1581(i)(1)(b). For purposes of 28 U.S.C. § 1581(i), a challenge to

presidential action imposing tariffs, duties, or other import restrictions arises under a law

providing for those measures. See Luggage & Leather Goods Mfrs. of Am., Inc. v.

United States, 588 F. Supp. 1413, 1419–21 (1984); U.S. Cane Sugar Refiners’ Ass’n v.

Block, 544 F. Supp. 883, 886 (1982), aff’d, 683 F.2d 399 (C.C.P.A. 1982). 8

STANDARD OF REVIEW

We necessarily interpret the statute in question to discern the extent of the

delegated authority, which is a question of law. See Marbury v. Madison, 5 U.S. 137,

177 (1803) (“It is emphatically the province and duty of the judicial department to say

what the law is.”); Loper Bright Enters. v. Raimondo, 603 U.S. 369, 386 (2024). Beyond

that, we are not empowered to review the factual determinations committed to the

President’s exercise of his discretion. Silfab Solar, Inc. v. United States, 892 F.3d 1340,

8 Although 28 U.S.C. § 1581(i) does not permit suit directly against the President, the

court retains jurisdiction over suits against subordinate officials responsible for

implementing the President’s directives. Corus Grp. PLC v. ITC, 352 F.3d 1351, 1359

(Fed. Cir. 2003) (explaining that, although the President is not an “officer” within the

meaning of section 1581(i), claims challenging implementation of presidential action

may proceed against the officials charged with administering that action); USP

Holdings, Inc. v. United States, 36 F.4th 1359, 1366 (Fed. Cir. 2022) (reaffirming that

section 1581(i) does not authorize suits against the President directly, but permits suits

against subordinate officials responsible for carrying out the President’s proclamation).

Court Nos. 26-01472 & 26-01606 Page 17

1349 (Fed. Cir. 2018) (“In particular, courts have repeatedly confirmed that, where the

statute authorizes a Presidential ‘determination,’ the courts have no authority to look

behind that determination to see if it is supported by the record.” (citing United States v.

George S. Bush & Co., 310 U.S. 371, 379 (1940)); Motion Sys., Inc. v. United States,

437 F.3d 1356, 1360 (2006) (en banc) (citing George S. Bush & Co., 310 U.S. at

379). We determine what Congress has committed to the President’s discretion. Loper

Bright, 603 U.S. at 386. And we “determine whether the President “clear[ly]

misconstru[ed]” his statutory authority. USP Holdings, Inc. v. United States, 36 F.4th

1359, 1365–66 (Fed. Cir. 2022) (citing Corus Grp., 352 F.3d at 1356); Motions Sys.,

437 F.3d at 1361 (explaining that courts may consider whether “the President has

violated an explicit statutory mandate”). We do not review claims that the President

exceeded statutory authority according to a standard of review set forth in the

Administrative Procedure Act, 5 U.S.C. § 706 (“APA”), the President not being an

agency within the meaning of the APA. Franklin v. Mass., 505 U.S. 788, 796, 801

(1992). In considering Plaintiffs’ summary judgment motions, we will “grant summary

judgment if the movant shows that there is no genuine dispute as to any material fact

and the movant is entitled to judgment as a matter of law.” USCIT Rule 56(a).

DISCUSSION

I. Standing

A. Legal Framework

“Article III of the Constitution grants the Judicial Branch authority to adjudicate

‘Cases’ and ‘Controversies.’” Already, LLC v. Nike, Inc., 568 U.S. 85, 90 (2013). “That

Court Nos. 26-01472 & 26-01606 Page 18

limitation requires those who invoke the power of a federal court to demonstrate

standing.” Id. Thus, whether a plaintiff has Article III standing is a “threshold” inquiry.

Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94 (1998). “[A]n ‘actual

controversy,’” and, thus, standing, “must exist not only ‘at the time the complaint is filed,’

but through ‘all stages’ of the litigation.” Already, LLC, 568 U.S. at 90–91 (quoting

Alvarez v. Smith, 558 U.S. 87, 92 (2009)).

“To establish Article III standing, an injury must be concrete, particularized, and

actual or imminent; fairly traceable to the challenged action; and redressable by a

favorable ruling.” Clapper v. Amnesty Int’l USA, 568 U.S. 398, 409 (2013) (internal

quotation marks omitted); see also Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–561

(1992). For an injury to be imminent it must be “certainly impending,” or there must be

“a substantial risk that the harm will occur.” Susan B. Anthony List v. Driehaus, 573

U.S. 149, 158 (2014) (internal quotation marks omitted); see also Mass. v. Mellon, 262

U.S. 447, 488 (1923) (a plaintiff must show, inter alia, “that he has sustained or is

immediately in danger of sustaining some direct injury”). Accordingly, “[a]llegations of

possible future injury are not sufficient.” Clapper, 568 U.S. at 409 (internal quotation

marks omitted) (emphasis added) (alteration in original).

When standing is based on “the government’s allegedly unlawful regulation . . . of

someone else, . . . causation and redressability ordinarily hinge on the response of the

regulated (or regulable) third party to the government action or inaction—and perhaps

on the response of others as well.” Defs. of Wildlife, 504 U.S. at 562. In that case, “it

becomes the burden of the plaintiff to adduce facts showing that those choices have

Court Nos. 26-01472 & 26-01606 Page 19

been or will be made in such manner as to produce causation and permit redressability

of injury.” Id. “Plaintiffs cannot rely on speculation about the unfettered choices made

by independent actors not before the courts.” Clapper, 568 U.S. at 415 (internal

quotation marks and citation omitted).

B. Parties’ Contentions 9

State Plaintiffs contend they have standing to sue as “direct importers of tariffed

goods” or as non-importer plaintiffs suffering “pecuniary harms” traceable to the

challenged tariffs under a theory of “economic logic.” State Pls.’ Mem. at 33–34

(quoting V.O.S. Selections, Inc. v. United States, 49 CIT __, __, 772 F. Supp. 3d 1350,

1367 (2025), aff’d in part, vacated in part, 149 F.4th 1312 (Fed. Cir. 2025), aff’d sub

9 In light of the expedited briefing schedule, the court treats Defendants’ response to

State Plaintiffs’ summary judgment motion as a “‘suggestion’” of lack of standing with

respect to non-importer plaintiff states and conducts an inquiry into that question. See

Indium Corp. of America v. Semi–Alloys, Inc., 781 F.2d 879, 883–84 (Fed. Cir. 1985)

(explaining that it is appropriate for a trial court to treat a “motion for summary judgment

as a ‘suggestion’ of lack of subject matter jurisdiction and conduct[] an inquiry into the

question of declaratory judgment jurisdiction”); Lockheed Martin Corp. v. United States,

50 Fed. Cl. 550, 553 (2001) (“Regardless of how the Government designates its

jurisdictional challenge, the [c]ourt is required to inquire sua sponte whenever a doubt

arises as to the existence of federal jurisdiction.” (quoting Mt. Healthy City School Dist.

Bd. of Educ. v. Doyle, 429 U.S. 274, 278 (1977))). Out of an abundance of caution, the

court also considers the standing of importer plaintiffs. Consideration of evidence

extrinsic to the complaint is permissible to establish “predicate jurisdictional facts.”

Cedars–Sinai Med. Ctr. v. Watkins, 11 F.3d 1573, 1583–84 (Fed. Cir. 1993)). Plaintiffs

submitted declarations supporting the allegations of standing in their complaints. For

State Plaintiffs, see Decl. of Rabia Muqaddam, Exs. 5–28, ECF Nos. 27, 27-7 through

27-28 (individual declarations of State Plaintiffs). For Private Plaintiffs, see Decl. of

Ethan Frisch, ECF No. 11 (on behalf of Burlap and Barrel) (“Frisch Decl.”); Decl. of Jay

Foreman, ECF No. 11 (on behalf of Basic Fun) (“Foreman Decl.”). Defendants do not

contest Plaintiffs’ allegations or declarations of fact with respect to standing or seek

discovery on standing pursuant to USCIT Rule 56(d) before the court reaches the merits

of Plaintiffs’ claims.

Court Nos. 26-01472 & 26-01606 Page 20

nom., Learning Res., Inc. v. Trump, 146 S. Ct. 628 (2026)); see also State Compl.

¶¶ 95–99; State Pls.’ Reply at 17–18. 10

Private Plaintiffs allege standing as importers. Priv. Compl. ¶¶ 10–11. Burlap

and Barrel avers it “currently has three shipments scheduled to arrive in the next few

weeks on which it will have to pay the tariffs imposed by the Section 122 Proclamation.”

Priv. Pls.’ Mem. at 12 (citing Frisch Decl. ¶ 15). Basic Fun asserts it “has approximately

104 shipping containers of toys and components scheduled to arrive in the United

States during the 150-day tariff period.” Id. at 14 (citing Foreman Decl. ¶ 7).

The Government concedes standing with respect to the State of Washington and

Private Plaintiffs based on information from CBP indicating that all three plaintiffs have

imported goods subject to Section 122 duties. Defs.’ Resp. at 69 n.23, 73 n.24. The

Government contests the standing of the remaining State Plaintiffs “because they do not

allege that they have been—or will soon be—required to pay duties under Section 122.”

Id. at 72. The Government contends that non-importer State Plaintiffs seek standing

instead as “purchasers who allegedly paid increased costs to third-party importers

based on IEEPA duties and . . . expect to do the same for Section 122 duties.” Id. at

73. Such claims are “too attenuated,” the Government argues, amounting to “no more

10 In Learning Resources, the U.S. Supreme Court held the President’s invocation of the

International Emergency Economic Powers Act (“IEEPA”) to issue a series of Executive

Orders imposing tariffs to be unlawful. 148 S. Ct. at 635–36, 646. The Court issued its

decision on February 20, 2026, the same day that President Trump signed

Proclamation No. 11012.

Court Nos. 26-01472 & 26-01606 Page 21

than allegations of possible future injury” that fail to demonstrate causation. Id. at 74–

75.

C. Analysis

1. Importer Plaintiffs Have Standing

The standing inquiry for Private Plaintiffs and the State of Washington

(collectively, “Importer Plaintiffs”) is straightforward. “[W]hen the plaintiff is himself an

object of the [challenged government] action[,] . . . there is ordinarily little question that

the action or inaction has caused him injury, and that a judgment preventing or requiring

the action will redress it.” Defs. of Wildlife, 504 U.S. at 561–62. “[A]n importer’s

allegation that it pays unlawful U.S. duties typically would satisfy constitutional standing

requirements.” V.O.S. Selections, 772 F. Supp. 3d at 1369 (internal quotation marks

and citation omitted). While standing must be assessed from the outset of the actions, it

is enough for Importer Plaintiffs to show that, at the time of filing their respective

complaints, payment of Section 122 duties was “certainly impending” or there was “a

substantial risk” that such payment “will occur.” See Susan B. Anthony List, 573 U.S. at

158.

Importer Plaintiffs readily meet the imminent injury requirement. The State of

Washington submitted a declaration by the Executive Director of Procurement Services

for the University of Washington (“UW”), a public research institution. 11 Decl. of Ray

11 Harm to a “public instrumentality” of a State harms the State.

Biden v. Nebraska, 600

U.S. 477, 490 (2023) (“The plan’s harm to MOHELA is also a harm to Missouri.

MOHELA is a ‘public instrumentality’ of the State.”).

Court Nos. 26-01472 & 26-01606 Page 22

Hsu, ECF No. 27-26 (“Hsu Decl.”). Mr. Hsu declared that UW imports “products directly

from overseas and pays the applicable duties directly to the United States government

through its customs broker.” Id. ¶ 5. Mr. Hsu averred that, in 2024, “UW accepted

ninety-three shipments via its customs broker and paid a total of $18,199.37 in duties”;

“[i]n 2025, the university accepted 130 shipments and paid a total of $1,019,104.44 in

duties”; and “[a]s of the end of February 2026,” UW has “accepted 23 shipments and

paid a total of $34,107.83 in duties.” Id. While these earlier duties “were based on the

President’s invocation of IEEPA,”12 Mr. Hsu expects that UW “will purchase similar

goods” subject to Section 122 duties before July 24, 2026. Id. ¶ 7. Mr. Hsu’s

declaration shows that UW accepts several shipments each month, which is sufficient to

demonstrate that, in early March 2026, payment of Section 122 duties was “certainly

impending.” 13

Private Plaintiffs import merchandise directly from overseas. Burlap and Barrel

provided a declaration by its co-founder and co-CEO, Ethan Frisch. Frisch Decl. ¶ 2.

Mr. Frisch declared that as of March 9, 2026, Burlap and Barrel had “three shipments

scheduled to arrive in the next few weeks on which it will have to pay Section 122

tariffs.” Id. ¶ 15; see also id. at 7 (noting the date). Those “imports are valued at

12 The first IEEPA duties went into effect on February 4, 2025, and were issued

pursuant to Executive Order 14195, Imposing Duties to Address the Synthetic Opioid

Supply Chain in the People's Republic of China, 90 Fed. Reg. 9121, 9122 (Feb. 1,

2025). See V.O.S. Selections, 772 F. Supp. 3d at 1362–63.

13 This finding is supported by, but does not turn on, Defendants’ assertion that UW has

made at least one Section 122 duty payment. Defs.’ Resp. at 73 n.24. Additionally, the

standing of the State of Washington does not depend on UW’s allegations regarding

indirect harm. See Hsu Decl. ¶ 6.

Court Nos. 26-01472 & 26-01606 Page 23

$172,732” with an “expected tariff” payment in the amount of “$17,273.” Id. ¶ 15. Mr.

Frisch further averred that for the 150-day duration of the Section 122 tariffs, Burlap and

Barrel expects to “pay $60,000 in Section 122 tariffs.” Id. ¶ 17. Basic Fun submitted a

declaration by its CEO, Jay Foreman. Foreman Decl. ¶ 2. Mr. Foreman declared that

Basic Fun “has approximately 104 shipping containers of toys and toy components

scheduled to arrive in the United States during the upcoming 150-day period covered by

the Section 122 tariffs,” on which it expects to pay “approximately $690,000 in tariffs.”

Id. ¶¶ 7–8. Like UW, Private Plaintiffs have demonstrated standing based on imminent,

if not actual, liability for payment of Section 122 duties.

There being no question with respect to causation of the Importer Plaintiffs’

respective injuries or the court’s ability to redress those injuries, Importer Plaintiffs have

standing to challenge the imposition of Section 122 duties pursuant to Proclamation No.

11012. Because “at least one plaintiff has standing, the suit may proceed.” Nebraska,

600 U.S. at 489.

2. Non-Importer State Plaintiffs Lack Standing

It is not necessary to address the standing of the remaining State Plaintiffs

(collectively, “Non-Importer State Plaintiffs”) to establish the existence of a case or

controversy before the court. See id. It is, however, necessary to examine their

standing to inform the scope of any relief the court may find appropriate: the Non-

Importer State Plaintiffs seek a universal injunction to remedy indirect harm they claim

to suffer. State Pls.’ Mem. at 34, 41–43; State Pls.’ Reply at 20 (“[B]ecause only

importers of record have a clear refund remedy, an injunction is necessary to stop the

Court Nos. 26-01472 & 26-01606 Page 24

States from paying hundreds of millions indirectly due to the Section 122 tariffs.”)

(emphasis added). 14 Whether the court has authority to issue universal injunctive relief

is, at present, an open question. See V.O.S. Selections, 149 F.4th at 1339 (vacating

the CIT’s entry of a permanent injunction and remanding for reconsideration after the

U.S. Supreme Court’s intervening decision in Trump v. CASA, Inc., 606 U.S. 831

(2025)). 15 In this case, however, the court does not need to reach this question

because the Non-Importer State Plaintiffs fail to demonstrate an injury-in-fact, and

therefore, lack Article III standing.

Non-Importer State Plaintiffs allege one or more of the following types of indirect

economic harm: (1) passthrough tariff surcharges, (2) tariff-related increases in the cost

of goods and services, and (3) burden and delay in the States’ ability to carry out

administrative duties. See State Pls.’ Mem. at 19–20, 34; see also, e.g., Decl. of

Elizabeth Papadopoulos ¶¶ 5–8, ECF No. 27-24 (Oregon) (“Papadopoulos Decl.”); Decl.

of Jenifer Johnson ¶¶ 7–9, ECF No. 27-13 (Illinois); Decl. of Jeanette Moy ¶¶ 10–11,

ECF No. 27-21 (New York); Decl. of Mark Raymond ¶¶ 5, 10–12, ECF No. 27-12

(Connecticut); Decl. of Jared Ambrosier ¶¶ 6, 11–13, ECF No. 27-17 (Michigan). 16

14 The States have not identified the importer/vendors from which they purchase goods

subject to the Section 122 tariffs. Nevertheless, given the number of State Plaintiffs, the

breadth of their economic activity, and the wide scope of the Section 122 tariffs, any

injunction on the collection of Section 122 tariffs would have to be universal to be

practicable and to have practical effect for the Non-Importer State Plaintiffs.

15 Learning Resources mooted any need for the CIT to reconsider the V.O.S. injunction.

See Learning Res., 146 S. Ct. 628 (2026).

16 Non-Importer State Plaintiffs do not allege third party standing. See, e.g., Powers v.

Ohio, 499 U.S. 400, 410–11 (1991) (criteria for third party standing includes injury to the

litigant, “a close relation to the third party,” and “some hindrance to the third party’s

Court Nos. 26-01472 & 26-01606 Page 25

“Monetary costs are of course an injury.” Diamond Alt. Energy, LLC v. EPA, 606 U.S.

100, 111 (2025) (quoting United States v. Texas, 599 U.S. 670, 676 (2023)). And

Plaintiffs may “fairly employ economic logic” to establish injury-in-fact. Canadian

Lumber Trade All. v. United States, 517 F.3d 1319, 1333 (Fed. Cir. 2008); see also

V.O.S. Selections, 772 F. Supp. 3d at 1368 (“To suffer an economic injury from a tariff it

is not necessary to incur direct liability to Customs, or even to directly import an article

of dutiable merchandise.”). 17 But “[w]hen . . . a plaintiff’s asserted injury arises from the

government’s allegedly unlawful regulation (or lack of regulation) of someone else, . . .

standing is not precluded, but it is ordinarily substantially more difficult to establish.”

Defs. of Wildlife, 504 U.S. at 562.18

ability to protect his or her own interests”) (citing Singleton v. Wulff, 428 U.S. 106, 112–

16 (1976)).

17 In Canadian Lumber, the U.S. Court of Appeals for the Federal Circuit affirmed the

CIT’s reliance on “the doctrine of ‘competitor standing’” to find that certain Canadian

producers had standing to challenge distributions of money to U.S. producers pursuant

to the “Continued Dumping and Subsidy Offset Act,” also known as the “Byrd

Amendment.” 517 F.3d at 1332–34. That doctrine uses “economic logic to conclude

that a plaintiff will likely suffer an injury-in-fact when the government acts in a way that

increases competition or aids the plaintiff's competitors.” Id. at 1332. While that case

was “not a textbook candidate for ‘competitor standing,’” the Federal Circuit found it

“quite rational to infer that Customs, by distributing money to an entity that aims to take

away market share from Canadian wheat and has already been somewhat successful in

that effort, is likely to inflict further economic injury on the Canadian [producers].” Id. at

1334. Nevertheless, as the Federal Circuit later observed, the “findings of standing in

Canadian Lumber and the other ‘competitor standing’ cases are applications of the

standing requirement that the disputed action must pose a nonspeculative threat to a

concrete interest of the challenger.” AVX Corp. v. Presidio Components, Inc., 923 F.3d

1357, 1364 (Fed. Cir. 2019).

18 In the case of indirect injury, causation and redressability are typically more difficult to

establish. See, e.g., Murthy v. Mo., 603 U.S. 43 (2024). In Murthy, the Supreme Court

noted the “bedrock principle that a federal court cannot redress injury that results from

the independent action of some third party not before the court.” 603 U.S. at 57 (internal

Court Nos. 26-01472 & 26-01606 Page 26

None of the Non-Importer State Plaintiffs identify actual indirect harm resulting

from Section 122 duties. Instead, Non-Importer State Plaintiffs urge the court to find

imminent injury-in-fact based on their respective experiences with IEEPA duties. See

State Pls.’ Reply at 17–18 (“As Plaintiffs’ experience with IEEPA demonstrated,

sometimes these tariff costs are passed through directly to purchasers, while in other

instances the price increase is less direct.”); see also, e.g., Papadopoulos Decl. ¶ 9

(“While the tariffs Fleet Services paid in the past were based on the President[’s]

invocation of IEEPA, I expect that Fleet Services will purchase similar goods before July

24, 2026, that would be subject to tariffs under the Section 122 Proclamation.”). The

speculative nature of the Non-Importer State Plaintiffs’ injury distinguishes this case

from V.O.S. Selections. See V.O.S. Selections, 772 F. Supp. 3d at 1367 (“The

businesses that bring the V.O.S. action . . . allege and aver that they have suffered (and

will continue to suffer) economic injuries as a result of the Worldwide and Retaliatory

Tariffs.”) (footnote omitted). 19 While “‘imminence’ is concededly a somewhat elastic

quotation marks and citation omitted) (emphasis added). The relevant inquiry is

whether third parties will “react in predictable ways.” Id. Thus, the Supreme Court has

“been reluctant to endorse standing theories that require guesswork as to how

independent decisionmakers will exercise their judgment.” Id. (quoting Clapper, 568

U.S. at 413).

19 State Plaintiffs assert that “[e]ven the dissenting opinion in the Federal Circuit

‘agree[d] with the majority’s decision on jurisdiction and standing.’” State Pls.’ Reply at

18 n.7 (quoting V.O.S. Selections, 149 F.4th at 1348–49) (Taranto, J., dissenting))

(second alteration in original). State Plaintiffs appear to imply that the Federal Circuit

majority affirmed the standing of non-importers in that case and agreement with that

affirmance by the dissent. The V.O.S. majority did not, however, directly address the

standing of non-importers and as previously noted, vacated and remanded the CIT’s

sole remedy for those plaintiffs. V.O.S. Selections, 149 F.4th at 1340. The V.O.S.

dissenters, moreover, also characterized their position somewhat differently, and

Court Nos. 26-01472 & 26-01606 Page 27

concept, it cannot be stretched beyond its purpose, which is to ensure that the alleged

injury is not too speculative for Article III purposes—that the injury is certainly

impending.” Defs. of Wildlife, 504 U.S. at 564 n.2 (internal quotation marks and citation

omitted). While the attenuation of their alleged harm varies, they are, nevertheless,

mere “[a]llegations of possible future injury.” See Clapper, 568 U.S. at 409 (internal

quotation marks omitted) (alteration in original). 20 Accordingly, the Non-Importer State

Plaintiffs lack Article III standing. The court will dismiss without prejudice all claims by

Non-Importer State Plaintiffs.

II. Section 122: Balance-of-Payments Deficits

A. Parties’ Contentions

State Plaintiffs contend that the President lacked authority to invoke Section 122

because large and serious balance-of-payments deficits cannot occur in a floating

exchange rate monetary system. State Pls.’ Mem. at 6–7, 15–16, 25. They argue that

the Proclamation unlawfully redefines the statutory term “balance-of-payments deficits”

to mean “current account deficits” and that the tariffs are not applied consistent with the

principle of nondiscrimination as required by Section 122. Id. at 25–32; State Pls.’

Reply at 5–11. State Plaintiffs further argue that CBP’s enforcement exceeds statutory

perhaps more accurately, as agreeing with the majority “that enough plaintiffs had

constitutional standing in order for the lawfulness of the reciprocal and trafficking tariffs

to be adjudicated.” Id. at 1357 (Taranto, J., dissenting). Accordingly, V.O.S. does not

help settle the question of non-importer standing in this case.

20 Because the court concludes that Non-Importer State Plaintiffs have failed to

demonstrate any imminent, non-speculative injury, the court need not, and therefore

does not, address the Government’s argument that those plaintiffs also lack prudential

standing. See Defs.’ Resp. at 77–79.

Court Nos. 26-01472 & 26-01606 Page 28

authority. State Pls.’ Mem. at 32–33. Private Plaintiffs similarly argue that balance-of-

payments deficits cannot occur in a floating exchange rate system, that Section 122

does not authorize the challenged tariffs, that Congress did not clearly confer such

sweeping authority, and that any contrary reading would raise a nondelegation problem.

Priv. Pls.’ Mem. at 16–35.

Because the Bretton Woods system had already ended by the time of Section

122’s enactment, Defendants argue, Plaintiffs’ interpretation would mean that Congress

passed a statute that was “already useless at the time of its enactment,” in

contravention of the presumption against ineffectiveness that courts must apply when

interpreting statutes. Defs.’ Resp. at 32–33. Defendants further argue that the tariffs

imposed by the President’s Proclamation are lawful because Section 122 provides the

President with the discretion to determine when a large and serious balance-of-

payments deficit exists, and that the President has correctly made such a finding based

on the U.S. current account deficit, trade deficit, primary income, and net international-

investment position. Id. at 38–41.

B. Analysis

In Section 122 of the Trade Act of 1974, Congress authorizes, indeed requires,

that the President proclaim temporary import restrictions 21 when certain conditions

21 The restrictions available to the President include either a temporary import surcharge

or temporary limitations through the use of quotas. The only restriction at issue here is

an import surcharge, i.e., tariff. 19 U.S.C. § 2132(a).

Court Nos. 26-01472 & 26-01606 Page 29

exist. 22 19 U.S.C. § 2132(a). This case turns on the meaning of Section 122 and

whether the President asserted the existence of the conditions required by the statute in

order to lawfully proclaim the import surcharges. 23 As discussed further below, the

President’s Proclamation fails to assert that those required conditions have been

satisfied. See generally Proclamation No. 11012.

“The Congress shall have Power To lay and collect Taxes, Duties, Imposts and

Excises.” U.S. Const. art. I, § 8, cl. 1. The power to tax includes the power to impose

tariffs. Learning Res., 146 S. Ct. at 638 (citing Gibbons v. Ogden, 22 U.S. 1, 201

(1824)). Congress may delegate and has delegated the power to impose tariffs to the

22 Subsection (b) provides the President the discretion to forego import restrictions

otherwise required under subsection (a) if he “determines that the imposition of import

restrictions under subsection (a) will be contrary to the national interest of the United

States.” 19 U.S.C. § 2132(b). In such a case, “he may refrain from proclaiming such

restrictions and he shall—(1) immediately inform Congress of his determination, and (2)

immediately convene the group of congressional official advisers designated under [19

U.S.C. § 2211(a)] and consult with them as to the reasons for such determination.” Id.

23 State Plaintiffs appended a statement of undisputed material facts to their motion.

See Pls.’ Statement of Undisputed Material Facts, ECF No. 26. The statement contains

various “facts” about Proclamation No. 11012, past nonuse of Section 122, and harm to

State Plaintiffs. Id. ¶¶ 1–5, 17–24. The statement also asserts as “facts” State

Plaintiffs’ views on the meaning of balance of payments, id. ¶¶ 6–15, and the claimed

impossibility of a “large and serious” balance-of-payments deficit in a floating-rate

system, id. ¶ 16. But, as State Plaintiffs acknowledge, “[t]his is a statutory interpretation

case.” State Pls.’ Reply at 2; see also id. (stating “the question is one of statutory

interpretation, not of fact-finding,” and “[t]hat is the role Plaintiffs ask the [c]ourt to play

here”). The court need not parse State Plaintiffs’ statement of facts to exclude irrelevant

facts or legal conclusions. The standard of review here is clear: we interpret the statute

in question but do not make factual determinations committed to the President’s

discretion. Marbury, 5 U.S. at 177; Loper Bright, 603 U.S. at 386; Silfab Solar, 892 F.3d

at 1348–49. Put simply, we are empowered to decide what “balance-of-payments

deficits” means for purposes of Section 122(a)(1) and whether the Proclamation asserts

the existence of such deficits within the meaning of the statute. This case may thus be

resolved on summary judgment. USCIT Rule 56(a).

Court Nos. 26-01472 & 26-01606 Page 30

President under several specifically conditioned statutes. See, e.g., Trade Expansion

Act of 1962, § 232, 19 U.S.C. § 1862 (providing for presidential action to adjust imports

when the Secretary of Commerce finds that an article is being imported under such

circumstances as to threaten to impair national security); Trade Act of 1974, § 301, 19

U.S.C. § 2411 (providing for trade action when the U.S. Trade Representative

determines that a foreign country’s conduct is unjustifiable, unreasonable, or

discriminatory and burdens or restricts United States commerce).

“When Congress grants the power to impose tariffs, it does so clearly and with

careful constraints.” Learning Res., 146 S. Ct. at 644. Separation of powers concerns

thus require the court to carefully parse those constraints and give them full effect,

because “the President enjoys no inherent authority to impose tariffs during peacetime.”

Id. at 638; see also id. at 639 (“‘[B]oth separation of powers principles and a practical

understanding of legislative intent’ suggested Congress would not have delegated

‘highly consequential power’ through ambiguous language.” (plurality opinion) (alteration

in original) (quoting West Virginia v. EPA, 597 U.S. 697, 723–24 (2022))); 24 see also

24 While Chief Justice Roberts and Justices Gorsuch and Barrett relied on the major

questions doctrine, Justice Kagan, joined by Justices Sotomayor and Jackson, found

that the “ordinary tools of statutory interpretation” allowed them to arrive at the same

result. Learning Res., 146 S. Ct. at 674 (Kagan, J., concurring in part and concurring in

the judgment). While the court here utilizes those ordinary tools of statutory

interpretation to establish the parameters of Section 122, the importance of the proper

interpretation of that provision is informed by the separation of powers principles and a

clear understanding of the legislative intent that informed the delegation of this tariff

authority to the Executive Branch.

Court Nos. 26-01472 & 26-01606 Page 31

Little v. Barreme, 2 Cranch 170, 178–79 (1804) (Executive actions are subject to the

limitations set forth by Congress).

Section 122 provides, in pertinent part:

Whenever fundamental international payments problems require special

import measures to restrict imports—

(1) to deal with large and serious United States balance-of-payments

deficits[,]

(2) to prevent an imminent and significant depreciation of the dollar in

foreign exchange markets, or

(3) to cooperate with other countries in correcting an international balance-

of-payments disequilibrium,

the President shall proclaim, for a period not exceeding 150 days (unless

such period is extended by Act of Congress)—

(A) a temporary import surcharge, not to exceed 15 percent ad valorem, in

the form of duties (in addition to those already imposed, if any) on

articles imported into the United States . . . .

19 U.S.C. § 2132(a).

The court begins with the words of the statute. 25 The parties do not dispute that

in order to proclaim import surcharges pursuant to Section 122, there must be large and

serious United States balance-of-payments deficits. State Pls.’ Mem. at 22; Priv. Pls.’

Mem. at 28; Defs.’ Resp. at 16. Similarly, assuming there are balance-of-payments

25 The statute contains several phrases about which the parties do not agree, including

“fundamental international payments problems” and “balance-of-payments deficits.” Not

only do the parties disagree about the meaning of these phrases, but they also disagree

about whether they are independent phrases or if “balance-of-payments deficits” is

simply one of several enumerated “fundamental international payments problems.” See

State Pls.’ Mem. at 23; Priv. Pls.’ Mem. at 19; Defs.’ Resp. at 42. While the

grammatical structure of Section 122(a) suggests that “fundamental international

payments problems” are an independent requirement to proclaim import surcharges

pursuant to Section 122, the court need not reach this issue.

Court Nos. 26-01472 & 26-01606 Page 32

deficits, there is no serious dispute that whether such deficits are “large and serious” is

a discretionary determination within the province of the Executive Branch, review of

which by the judiciary is impermissible. See Dalton v. Specter, 511 U.S. 462, 477

(1994) (“Where a statute . . . commits decisionmaking to the discretion of the President,

judicial review of the President’s decision is not available.”). However, the term

“balance-of-payments deficits” is indicative of a term of art, susceptible to a defined

meaning, and subject to objective measure within the traditional means of judicial

review. 26

It is clear that Congress was aware of the differences in the words it chose.

Congress adopted “balance-of-payments deficits” as an issue to be addressed in

Section 122(a) while it employed the phrase “balance-of-trade surpluses” in Section

122(c). 19 U.S.C. § 2312(a)(1), (c)(1) (emphases added). That distinction does not end

the inquiry because neither the President in Proclamation No. 11012 nor Defendants

before us conflate entirely those terms. See Proclamation No. 11012 ¶ 7; Defs.’ Resp.

at 37. The different terms indicate, however, that Congress intended a specific

26 Indeed, the term “balance-of-payments deficit” causes some confusion. Balance of

payments is an accounting term and as both parties point out, the balance of payments

always balances by definition; it nets to zero. State Pls.’ Mem. at 26–27 n.6; Defs.’

Resp. at 5, 25. The phrase balance-of-payments deficits, thus, points to a negative

component of that analysis. The Government argues that in today’s world, the current

account is the proper component for identifying a balance-of-payments deficit. Defs.’

Resp. at 23–28. Problematically for the Government, and as discussed herein,

Congress in 1974 identified the settlement, liquidity, and basic balance deficits as

“balance-of-payments deficits.” See, e.g., Staff of S. Fin. Comm., 93d Cong., Tables

and Statistical Material on U.S. Balance of Trade and Balance of Payments (“Staff of S.

Fin. Comm. Dec. 1974”) Table 1 (Comm. Print Dec. 1974).

Court Nos. 26-01472 & 26-01606 Page 33

meaning through the words it chose when crafting Section 122(a) and, thus, conferred a

specific authority on the President. Having concluded that “balance-of-payments

deficits” is capable of definition, it is incumbent on the court to discern that definition.

See Marbury, 5 U.S. at 177. 27

The legislative history of the Trade Act of 1974 reveals that Congress understood

balance-of-payments deficits to refer, at the time, to deficits in (1) liquidity, (2) official

settlements, or (3) basic balance. For over two years, Congress carefully reviewed and

revised legislative proposals in the context of dynamic international economic events.

As discussed above, the statute was enacted at a time of great uncertainty for the future

of the international monetary system. As the bill was being debated in Congress, it was

unknown whether the collapse of the Smithsonian Agreement and the end of fixed

exchange rates in 1973 would mark a definitive end to the Bretton Woods system, or

whether the U.S. and other countries would one day return to the gold standard. See,

27 Loper Bright confirms that courts have the responsibility of interpreting statutes even

when the statutes are ambiguous:

The Framers appreciated that the laws judges would necessarily apply in

resolving those disputes would not always be clear. Cognizant of the

limits of human language and foresight, they anticipated that “[a]ll new

laws, though penned with the greatest technical skill, and passed on the

fullest and most mature deliberation,” would be “more or less obscure and

equivocal, until their meaning” was settled “by a series of particular

discussions and adjudications.”

603 U.S. at 384–85 (quoting The Federalist No. 37, p. 236 (J. Cooke ed. 1961) (J.

Madison)) (alteration in original). There is no dispute that Proclamation No. 11012

represents the first Presidential invocation of Section 122(a) since its enactment roughly

50 years ago. See State Pls.’ Mem. at 28; Defs.’ Resp. at 40. Thus, this case presents

the first opportunity for the court to interpret the statute’s relevant terms. Accordingly,

the legislative history surrounding congressional deliberation of Section 122 is

instructive.

Court Nos. 26-01472 & 26-01606 Page 34

e.g., 119 Cong. Rec. 40,568 (1973) (statement of Rep. Henry S. Reuss) (“If the United

States continues to let the dollar float in exchange markets, as we are wisely doing now,

the exercise of [Section 122] authority would prevent the deterioration or appreciation of

the external value of the dollar that would be necessary to eliminate a balance-of-

payments deficit or surplus, as the case may be. On the other hand, if we should ever

revert to a fixed exchange rate parity for the dollar, the time limit proposed of 150 days

would be much too short to allow a reversal in basic economic conditions sufficient to

restore a satisfactory balance-of-payments equilibrium.”). Both the international

economic challenges and questions about the limits of Presidential authority informed

congressional consideration of this legislation. 28

Early versions of the legislation contained standards for measuring the balance-

of-payments deficit and applying the threshold for enabling Presidential authority to take

action. Specifically, H.R. 6767 would have provided that a serious balance-of-payments

deficit existed when the President determined that “the balance of payments (as

measured either on the official reserve transactions basis or by the balance on current

account and long-term-capital) has been in substantial deficit over a period of four

consecutive calendar quarters.” Trade Reform Act of 1973, H.R. 6767, 93d Cong.

28 The Trade Act of 1974 was enacted on January 3, 1975, Pub. L. No. 93-618, 88 Stat.

1978, after the 10 percent Nixon surcharge had already been invalidated by the

Customs Court, see Yoshida I, 378 F. Supp. at 1175–76, but before the reversal of that

judgment on appeal, see Yoshida II, 526 F. 2d at 584. The 1973–1974 OPEC embargo

only further complicated the United States’s economic and monetary position. See Oil

Embargo, 1973-1974. Both the international economic challenges and questions about

the limits of Presidential authority informed congressional consideration of this

legislation.

Court Nos. 26-01472 & 26-01606 Page 35

§ 401(b)(1)(A) (1973). 29 Thus, in debating an earlier version of this legislation,

Congress specifically identified settlement deficits and basic balance deficits as two

possible balance-of-payments deficits.

Similarly, early analyses of balance-of-payments deficits focused on the liquidity,

official settlements, and basic balance concepts:

The overall-balance-of-payments deficit (or surplus) can be shown

in different ways. The two most usual approaches, both of which are

shown in the official figures of the U.S. Department of Commerce, are

known as the “liquidity” concept and the “official settlements” concept.

The balance, computed on the liquidity basis, is measured by

changes in U.S. official reserve assets and in liquid liabilities to all

foreigners. It includes as liabilities, which are a potential drain on U.S.

monetary reserves, all short-term liabilities to foreigners, private as well as

those payable to foreign monetary authorities, it does not include U.S.

private short-term holdings as an offsetting asset entry, however, on the

theory that the U.S. Government exercises no direct control over them and

therefore cannot mobilize them in support of the dollar in an emergency.

The balance, computed on the official settlements basis, is

measured by changes in U.S. official reserve assets, together with

changes in liquid and certain nonliquid liabilities to foreign official

agencies. Under this concept foreign short-term capital inflows are

included, as are U.S. short-term outward capital flows, as regular

transactions. According to this concept, the large inflows of foreign

commercial bank funds in recent years have represented predominantly

market-oriented business phenomena.

See Trends in Int’l Trade of the United States: Hr’gs Before the H. Comm. on Ways &

Means, 91st Cong. 2710 (1970) (statement of Dr. Howard S. Piquet); see also H.R.

Rep. No. 91-1435, at 12 (1970) (discussing liquidity and official settlements deficits).

29 The balance on current account and long-term capital constitute what is also known

as the “basic balance.” See Council of Econ. Advisers, Exec. Office of the President,

Econ. Report of the President 194 (1974).

Court Nos. 26-01472 & 26-01606 Page 36

Later-in-time analyses are consistent with this approach. See The Trade Reform Act of

1973, Hr’gs on H.R. 10710 Before the S. Comm. on Fin. (“H.R. 10710 Hr’gs”), 93d

Cong., pt. 1, at 2, 221, 365–66; pt. 2, at 480, 661; pt. 4, at 1468–69; pt. 5, at 2080

(1974) (discussing or showing deficit in terms of “basic balance,” “liquidity basis,” or

“official reserve transactions”); 120 Cong. Rec. 39,505, 39,521 (1974) (statements of

Sen. Long and Sen. Hartke) (“In 1962, the Nation had . . . a balance of payments deficit

of $2.9 billion—liquidity basis. Ten years later . . . the payments deficit had grown from

a bearable $2.9 billion to an intolerable $13.9 billion.”); 120 Cong. Rec. 39,506 (1974)

(“Table 7 U.S. Trade and Balance of Payments, 1960–74,” showing “Balance of

payments” identifying possible deficits in “liquidity,” “official settlements,” and “basic

balance”). 30

Both the parenthetical definition of balance of payments and the measurement

over four consecutive quarters proposed in H.R. 6767 were omitted from H.R. 10710.

As the legislative history indicates, in lieu of the four quarters time period, Congress

inserted the “large and serious” requirement to circumscribe the President’s authority all

while allowing for adequate flexibility to respond to a delimited set of particular

30 A variety of options for analyzing the balance of payments were available to Congress

at the time Section 122 was debated and enacted. See H.R.10710 Hr’gs, Part 2 at

684–90 (App. C, Staff of S. Fin. Comm., 93d Cong., Staff Data and Materials on U.S.

Trade and Balance of Payments Tables 22–23, 30 (Comm. Print Feb. 1974), showing

tables displaying annual figures for “Current Account Balance” and “Basic Balance”

under the header “U.S. Balance of Payments Trends,” as well as “US Balance of

Payments Summary by Area,” including measures across various categories); H.R.

10710 Hr’gs, Part 6 at 2555 (“[Int’l Econ. Policy Assoc. (IEPA)] Balance-of-Payments

Summary, 1969-73”).

Court Nos. 26-01472 & 26-01606 Page 37

economic and monetary challenges. See H.R. Rep. No. 93-571, at 28–29 (1973) (“The

[House] [C]ommittee [on Ways and Means] considered various formulas for defining a

serious balance-of-payments deficit, including a specific formulation based on the

existence of a substantial deficit over a certain period of time, but the committee feels

that it is not possible to formulate a definition with mathematical exactness.

Nevertheless, the committee does not intend that a small or even a large balance-of-

payments deficit of short duration would warrant the exercise of the authority under this

section.”); S. Rep. No. 93-1298, at 87–88 (1974) (“[C]ircumstances can change rapidly

and the [Senate] Committee [on Finance] deems it necessary that the President have

authority to impose surcharges and other import restrictions for balance of payments

reasons even though under present circumstances such authority is not likely to be

utilized.”). While Congress did not replace the parenthetical definition of balance of

payments, the legislative history indicates what Congress contemplated as the measure

of balance of payments. Specifically, the Senate Report to the Trade Act of 1974

(“Senate Report”) refers to the three types of balance-of-payments deficits, namely (1)

liquidity, (2) official settlements, and (3) basic balance, discussed in other parts of the

legislative history. S. Rep. 93-1298, at 8 (Table 3); see also Staff of S. Fin. Comm. Dec.

1974, Table 1. 31

31 The December 1974 Senate Finance Staff Report contains a wealth of statistical

information regarding trade and balance of payments, much of which appears to have

been summarized in Table 1. Under the heading “U.S. Trade and Balance-of-Payments

Deficits,” Table 1 lists “U.S. trade position,” “Trade balance,” and “Balance of

payments,” with data from 1960 through 1973 and partial data for 1974. See Staff of S.

Fin. Comm. Dec. 1974, Table 1. As noted, the balance of payments data is categorized

Court Nos. 26-01472 & 26-01606 Page 38

The Government’s own Declaration acknowledges some of these 1974

measures, stating:

Multiple measures capture related aspects of a country’s [balance-

of-payments (“BOP”)] deficit, and official statistics during the 1970s also

reported broader measures than the current account. For example, the

“official reserve transactions balance” tracked the net disposition of dollars

by the federal government in order to manage the foreign exchange value

of the dollar. Another common contemporaneous measure was the “basic

balance” . . ., which combined the current account and long-term capital,

and served as a gauge for the imbalance between “underlying” long-term

demand and supply of foreign exchange. . . .

According to the CEA’s review of historical records, the basic

balance was a common, broader measure of BOP deficits during the

1970s. The underlying intent of the basic balance, according to BEA, was

to capture “[…] long term trends in the balance of payments by

segregating volatile capital flows and placing them below the line.”

based on liquidity, official settlements, and basic balance. Id. Those categories are

mostly, but not always, in deficit. The report contains 31 total tables. See generally id.

In addition to trade-related information (Tables 2 to 21 and 31), the report summarizes

the U.S. current account balance (Table 22) and U.S. basic balance (Table 23);

contains several U.S. basic balance trends regarding merchandise, services, military

and foreign aid, and private capital (Tables 24 to 27); lists the U.S. basic balance by

area (Tables 28 and 29); and summarizes the U.S. balance of payments by area (Table

30). Id., Tables 2–29. Table 30 contains balances for goods and services, current

account, basic balance, net liquidity, and official settlements. Id., Table 30. But just as

the balance on goods and services is contained in the current account balance, so too

is the current account balance subsumed within the basic balance. Compare id., Table

22 (U.S. current account balance) and id., Table 28 (U.S. basic balance by area, 1973),

with id. Table 30; see also Econ. Report of the President 194 (1974) (defining basic

balance to include the current account). But the Senate included only “Liquidity,”

“Official settlements,” and “Basic balance” in Table 1, titled “U.S. Trade and-Balance-of-

Payments Deficits,” and that is thus the clearest indication of the concerns Section 122

was intended to address. Staff of S. Fin. Comm. Dec. 1974, Table 1.

Court Nos. 26-01472 & 26-01606 Page 39

Decl. of Pierre Yared (Council of Economic Advisors) (“Yared Decl.”) ¶¶ 25, 27, ECF

No. 35-1 (third alteration in original). 32

Despite acknowledging differences in the 1974 measures of the balance of

payments as compared to modern measures, id. ¶¶ 27, 37–40, the Government seeks

to defend the Proclamation by arguing that “balance-of-payments deficits” is a malleable

phrase, see Defs.’ Resp. at 32 n.12 (“[W]hat qualifies as a [balance-of-payments deficit]

may depend on the facts of the day.” (quoting Wisconsin Cent. Ltd v. United States, 585

U.S. 274, 284 (2018) (alteration in original))). However, the Government’s suggestion

that what constitutes “balance-of-payments deficits” may change proves too much. See

Yared Decl. ¶ 37 (“While the concept of current account has largely remained the same

since the 1970s, there is no single measure of the long-term capital account (the other

main component of basic balance), and BEA no longer reports all the components

needed to exactly replicate the basic balance.”). As previously noted, the “balance of

payments” as an accounting principle always nets to zero. See State Pls.’ Mem. at 26–

27 n.6; Defs.’ Resp. at 5, 25; Yared Decl. ¶ 10. To the extent that is the case, if the

President has the ability to select among the sub-accounts to identify a balance-of-

payments deficit, unless every sub-account is balanced, the President would always be

able to identify a balance-of-payments deficit.

32 The Yared Declaration later posits that the failings of the basic balance as a metric

likely led BEA to discontinue its presentation of the basic balance in 1976. Yared Decl.

¶¶ 27, 35.

Court Nos. 26-01472 & 26-01606 Page 40

Such an expansive reading of the statute would raise a non-delegation issue,

which in turn would prompt a constitutional question. 33 See Priv. Pls.’ Mem at 28.

“[T]he canon of constitutional avoidance” provides that, when one of two statutory

interpretations would raise a constitutional question, “the other should prevail.” Clark v.

Martinez, 543 U.S. 371, 380–81 (2005); see also Mistretta v. United States, 488 U.S.

361, 373 n.7 (1989) (stating that the Court employs the nondelegation principle to

interpret statutory text and give “narrow constructions to statutory delegations that might

otherwise be thought to be unconstitutional”); Indus. Union Dept., AFL-CIO v. Am.

Petroleum Inst., 448 U.S. 607, 646 (1980) (stating that “[a] construction of the statute

that avoids [an] open-ended grant” of authority that would implicate the non-delegation

doctrine “should certainly be favored”); Fisherman’s Harvest, Inc. v. PBS & J, 490 F. 3d

1371, 1377 (Fed. Cir. 2007) (“The canon of constitutional avoidance in statutory

interpretation implies that a plausible construction of [a statute] that does not raise . . .

constitutional doubts gives better effect to congressional intent.”). The Government’s

33 Defendants argue that “the balance-of-payment’s current account [is] the only

reasonable measure of a balance-of-payment deficit.” Defs.’ Resp. at 3; see also Yared

Decl. ¶¶ 8, 13. This argument lacks support in either the statute’s text or legislative

history. Defendants’ position is the President has discretion to identify any actionable

deficit for purposes of Section 122(a)(1). See Defs.’ Resp. at 20. But Section 122

would lack an intelligible principle if the President could simply identify any deficit

account, or if the phrase “balance-of-payments deficits” could change with context.

Further, Defendants reject the view that the phrase “fundamental international payments

problems” constrains the President at all. See Defs.’ Resp. at 41–44. While the court

need not resolve the Parties’ positions on this issue, the court cannot accept

Defendants’ interpretation that disclaims the existence of any meaningful intelligible

principle in either “fundamental international payments problems” or “balance-of-

payment deficits.”

Court Nos. 26-01472 & 26-01606 Page 41

preferred interpretation of the statute must therefore be disfavored. See N.L.R.B. v.

Jones & Laughlin Steel Corp., 301 U.S. 1, 30 (1937) (“[A]s between two possible

interpretations of a statute, by one of which it would be unconstitutional and by the other

valid, our plain duty is to adopt that which will save the act. Even to avoid a serious

doubt the rule is the same.”) (emphasis added).

Further, the legislative history chronicles a series of efforts to carefully cabin

Presidential discretion. See Hr’g on H.R. 10710 Before the H. Rules Comm., 93d Cong.

84 (1973) (statement of Hon. Al Ullman) (“[I]n place of unlimited authority to modify

import restraints in face of large and persistent balance of payments deficits or

surpluses, the bill provides temporary and limited authority for the President to take

action.”); Staffs of the H. Comm. on Ways and Means and the S. Comm. on Fin., 93d

Cong., Summary of Senate Amendments to H.R. 10710 Trade Act of 1974 6 (Comm.

Print 1974) (“[Amendments 42–43] [m]ake[] the House bill authority to deal with deficit

balance-of-payments situations mandatory, rather than discretionary, unless the

President determines and informs the Congress that imposing import restrictions would

be contrary to the national interest.”); Staffs of the S. Comm. on Fin. and H. Comm. on

Ways and Means, 93d Cong., Summary of the Provisions of H.R. 10710 4 (Comm. Print

1974) (stating that “[t]he Act directs the President to proclaim . . . import surcharges . . .

as may be necessary to deal with large and serious U.S. balance of payments deficits”

(emphasis added)). Ultimately, the Senate Report, leading up to the enactment of

Section 122, explicitly classifies three figures as measures of the “balance of payments”

(liquidity, official settlements, and basic balance) while classifying two measures of the

Court Nos. 26-01472 & 26-01606 Page 42

“trade balance” as distinct. S. Rep. 93-1298, at 8; see also Staff of S. Fin. Comm. Dec.

1974, Table 1.

Rather than identifying “balance-of-payments deficits” as that term was intended

in 1974, the Proclamation relies upon current account deficits, and a discussion of “a

large and serious trade deficit.” Proclamation No. 11012 ¶ 6; see also id. ¶ 7 (referring

to deficits concerning the balance of goods and services as well as the balances on

primary income and secondary income, all of which are part of the current account); id.

¶ 8 (noting the trade deficit). Although the current account (and the balance of trade as

a component of the current account) are relevant to balance-of-payments deficits, they

are distinct, and the statute recognizes the distinction. Compare 19 U.S.C. § 2132(a)(1)

(“large and serious United States balance-of-payments deficits”), with 19 U.S.C.

§ 2132(c)(1) (“large and persistent United States balance-of-trade surpluses”). Indeed,

the Government’s Declaration plainly acknowledges that the Proclamation does not rely

upon the metrics used to measure balance-of-payments deficits discussed at the time of

enactment:

During the 1970s, economists leveraged multiple metrics to analyze

different aspects of BOP deficits. More expansive measures than the

current account typically included other components of the BOP

accounting framework involving relatively durable transactions—those that

were long-term and illiquid—and excluded flows of payment and other

liquid, money-like instruments that are recorded in the financial account.

In developing candidate alternative BOP deficit measures to the current

account, CEA accounted for the evolution of financial markets since the

1970s, which have substantially increased the liquidity of many assets

(e.g., equities).

Figure 5 shows CEA’s most expansive candidate BOP deficit

measure for the purposes of Section 122: the current account plus the

Court Nos. 26-01472 & 26-01606 Page 43

capital account plus net FDI. This measure excludes most assets in the

financial account, as in modern-day financial markets they can exhibit high

degrees of liquidity and volatile flows, akin to broad financial flow.

However, even this measure is likely too inclusive. As acknowledged by

the BEA in 1976 “[…] even some components of direct investment, can be

quite volatile.” This suggests that a representation of the BOP deficit more

aligned to Section 122 would reflect only the most durable components of

FDI. As illustrated by Figure 5, CEA’s most expansive candidate measure

is more volatile than the current account balance, but presents the same

qualitative story: a prolonged period in deficit.

Yared Decl. ¶¶ 43–44 (alteration in original) (citation omitted). The Declaration explains

the Proclamation’s reliance on the current account deficit as a function of the United

States’ shift from a fixed exchange rate to a floating exchange rate in great detail. 34 Id.

¶¶ 28–36. The narrative woven by the Declaration attempts to characterize the

Senate’s explicit references to (1) liquidity, (2) official settlements, and (3) the basic

balance as concepts that must be reinterpreted today to take account of the fact that

“BEA no longer reports all the components needed to exactly replicate the basic

balance” as well as changes that have occurred in the long-term capital markets. 35 Id.

¶¶ 37–40. Thus, the Yared Declaration asserts that, given the “context of the modern

economy and financial markets, . . . the balance of the current account within the BOP

34 While the Yared Declaration is distinct from the President’s Proclamation and not

expressly relied upon therein, throughout the Proclamation, the President states that he

was “informed” by senior officials and advisors in arriving at his factual findings.

Proclamation No. 11012 ¶¶ 4–13. The court’s references to the Yared Declaration are

not dependent upon whether Mr. Yared was among the unnamed senior officials or

advisors in the Proclamation.

35 The Declaration explains its resort to measurements beyond those considered by

Congress in 1974. See, e.g., Yared Decl. ¶ 38 (noting that “[w]hat can be construed as

non-volatile, long-term capital has changed materially since the 1970s”).

Court Nos. 26-01472 & 26-01606 Page 44

accounting framework is the most appropriate measure of BOP deficits for the purposes

of Section 122.” Id. ¶ 13. 36

Both Plaintiffs and Defendants overstate the consequences of the United States’

transition from a fixed exchange rate system to a floating exchange rate system.

Plaintiffs argue that because the United States floats its currency, large and serious

balance-of-payments deficits cannot occur. State Pls.’ Mem. at 2–3; Priv. Pls.’ Mem. at

21–22. Defendants argue that Plaintiffs’ position means Section 122 was “a nullity

since the day it was enacted.” Defs.’ Resp. at 40, see also id. at 35. Both Plaintiffs and

Defendants miss the mark. Whether it is possible to measure balance-of-payments

deficits by settlements, liquidity, or basic balance today is not our concern; 37 rather,

36 Notably, in the next paragraph, the Yared Declaration acknowledges “trade deficits

are conceptually distinct from balance-of-payments deficits.” Id. ¶ 14.

37 At Oral Argument, the Government conceded that the way in which a balance-of-

payments deficit is measured today is different from how a balance-of-payments deficit

was measured in 1974; namely, that basic balance and liquidity are no longer

considered relevant or material measures. Oral Arg. at 1:35:00–1:38:00, 1:52:00–

1:55:00 (approximate time stamps from the recording). Defendants’ discussion of these

alternatives during Oral Argument and in their brief makes clear they had notice of and

understood the statutory interpretation grounds raised in Plaintiffs’ motions for Summary

Judgment. See Defs.’ Resp. at 26 (arguing the Government’s interpretation is

supported by “statutory context and legislative history”); id. at 31 (arguing the

President’s “interpretation is not a clear misconstruction of Section 122” that requires

judicial review of his actions); see also State Pls.’ Mem. at 22–23, 25–27 (arguing the

preconditions for Section 122 duties were not satisfied); Priv. Pls.’ Mem. at 16–23

(similar). Thus, we disagree with the dissent that our resolution of this issue triggers the

provisions of Rule 56(f) governing “Judgment Independent of the Motion,” specifically,

the requirement for “notice and a reasonable time to respond” before “grant[ing] the

motion on grounds not raised by a party.” USCIT Rule 56(f)(2); see also Dissent Op. at

24–30. Plainly, the grounds the Plaintiffs advanced and of which Defendants had notice

necessarily require the court to interpret the meaning of “balance-of-payments deficits”

for purposes of Section 122. See Loper Bright, 603 U.S. at 394 (stating that “courts

Court Nos. 26-01472 & 26-01606 Page 45

when interpreting the statute, we must determine the meaning of “balance-of-payments

deficits” at the time Congress enacted the statute and whether the President identified

balance-of-payments deficits within that meaning—regardless of how the BEA

measures such deficits today. The meaning of this term is readily ascertainable when

looking at how the Senate explicitly reported balance-of-payment deficits. S. Rep. 93-

1298 at 8; Staff of S. Fin. Comm. Dec. 1974, Table 1.

Thus, what is relevant is what Congress meant by “balance-of-payments deficits”

in 1974, and what Congress meant can be determined based on what it reported at the

time of enactment, namely the balance-of-payments deficits as measured by liquidity,

official settlements and the basic balance. Even if it is unlikely that “large and serious

balance-of-payments deficits” within the meaning of Section 122 could occur today in

light of the floating exchange rate system, the other provisions of Section 122 remain

operative. See 19 U.S.C. § 2132(a)(2)–(h). Under those provisions, the President

would be empowered to act “to prevent an imminent and significant depreciation of the

dollar” or “to cooperate with other countries in correcting an international balance-of-

payments disequilibrium.” See id. § 2132(a)(2)–(3).

Accepting as true every factual statement in Proclamation No. 11012, the

surcharge imposed by the Proclamation rests on the existence of a large trade deficit, a

current account deficit, a negative net international investment position, and a deficit on

the balance on primary and secondary income (which are part of the current account).

must exercise independent judgment in determining the meaning of statutory

provisions”).

Court Nos. 26-01472 & 26-01606 Page 46

Proclamation No. 11012 ¶¶ 7–11. The Proclamation asserts that “the United States

runs a trade deficit, does not currently make a net income from the capital and labor that

it deploys abroad, and experiences more transfer payments, on net, flowing out of the

country than into the country.” Id. ¶ 7. Nowhere does Proclamation No. 11012 identify

balance-of-payments deficits within the meaning of Section 122 as it was enacted in

1974. See generally Proclamation No. 11012.

Because the Proclamation’s use of trade and current account deficits to stand in

the place of balance-of-payment deficits within the meaning of the statute renders the

Proclamation ultra vires, the court need not reach the arguments of whether Section

122 requires the identification of “fundamental international payments problems” or

whether the exemptions provided in the Proclamation are lawful. See Trump v. Hawaii,

585 U.S. 667, 703 (2018) (requiring a “facially legitimate and bona fide” reason for

Executive action (citation omitted)). Proclamation No. 11012 is invalid, and the tariffs

imposed on Plaintiffs are unauthorized by law. 38

38 We have considered the arguments presented by the dissent and are not convinced

by them. The dissent finds the legislative history too limited to give meaning to the term

“balance-of-payments deficits.” However, the dissent provides no affirmative alternative

meaning to this critical statutory term that the President invokes as the basis of the

Proclamation. Indeed, the dissent concludes that one cannot or should not ascribe

meaning to “balance-of-payments deficit” absent express statutory language defining

the term. To the contrary, as we have discussed, “[i]t is emphatically the province and

duty of the judicial department to say what the law is. Those who apply the rule to

particular cases, must of necessity expound and interpret that rule.” Marbury, 5 U.S. at

177. Thus, the court’s role is to define statutory terms in order to determine whether the

President acted within his congressional grant of authority. See id.; USP Holdings, 36

F.4th at 1365–66. Rather than define balance-of-payments deficits for purposes of

Section 122, the dissent accepts the Defendants’ claim that they may choose the

economic statistics or sub-accounts of the balance-of-payments based on what is

Court Nos. 26-01472 & 26-01606 Page 47

III. CSMS # 67844987

A. Parties’ Contentions

State Plaintiffs seek judicial review of CBP’s Cargo Systems Messaging Service

# 67844987 as a final agency action pursuant to the APA. State Pls.’ Mem. at 32–33.

They suggest, however, that Proclamation No. 11012 and CSMS # 67844987 stand or

fall together, contending that because CSMS # 67844987 “violates the requirement[s] of

Section 122, it is “in excess of statutory jurisdiction, authority, or limitations.” Id. at 33

(quoting 5 U.S.C. § 706(2)(C)). State Plaintiffs argue the court should “stay, vacate,

and set aside CSMS # 67844987, which implements the Section 122 Proclamation.” Id.

The Government contends that CSMS # 64844987 is not an agency action for

purposes of the APA, let alone a final agency action. Defs.’ Resp. at 66–67. The

Government relies on Maple Leaf Marketing, Inc. v. United States, 45 CIT __, __, 528 F.

Supp. 3d 1365, 1378–79 (2021) (dismissing a claim for APA review of CSMS guidance).

Id. at 66–67.

In reply, State Plaintiffs argue that CSMS # 64844987 is a final agency action

because it “creates requirements related to documentation and entering data and

provides for ‘drawback’—provisions not contained within the Proclamation.” State Pls.’

Reply at 19.

available at present. See Defs.’ Resp. at 32 n.12. As we discuss above, we cannot

accept that view as a matter of statutory interpretation because doing so would require

us to determine whether there is any intelligible principle behind such an open-ended

delegation that would save it from constitutional scrutiny—a challenge the dissent

dismisses as a “straw man.” Dissent Op. at 18.

Court Nos. 26-01472 & 26-01606 Page 48

B. Analysis

“[F]inal agency action for which there is no other adequate remedy in a court [is]

subject to judicial review.” 5 U.S.C. § 704. An “‘agency action’ includes the whole or a

part of an agency rule, order, license, sanction, relief, or the equivalent or denial thereof,

or failure to act.” Id. § 551(13). For an agency action to be final, two requirements must

be met. Bennett v. Spear, 520 U.S. 154, 177–78 (1997). First, the agency’s action

“must mark the ‘consummation’ of the agency’s decisionmaking process.” Id. (citations

omitted). Second, the agency action “must be one by which ‘rights or obligations have

been determined’ or from which ‘legal consequences will flow.’” Id. at 178 (citations

omitted).

State Plaintiffs’ moving brief provides no substantive rationale for treating CSMS

# 67844987 as an agency action, final or otherwise, for purposes of the APA. See State

Pls.’ Mem. at 32–33. They seek to remedy this omission in their reply brief, arguing that

CSMS # 67844987 is a final agency action, State Pls.’ Reply at 19, but their efforts are

unavailing. Arguments raised for the first time in a reply are forfeited. See Fuji Photo

Film Co. v. Jazz Photo Corp., 394 F.3d 1368, 1375 n.4 (Fed. Cir. 2005). Additionally,

even in reply, State Plaintiffs do not address Defendants’ argument that a CSMS

message is not an “agency action” at all. See Defs.’ Resp. at 66 (citing Maple Leaf

Mktg., 528 F. Supp. 3d at 1378–79). Lastly, State Plaintiffs assert, in a conclusory

fashion, that CBP’s guidance regarding documentation, data entry, and drawback

creates rights or obligations from which legal consequences flow. State Pls.’ Reply at

19. The court will not “do counsel’s work” of constructing the argument that may or may

Court Nos. 26-01472 & 26-01606 Page 49

not support the desired conclusion. SeeௗHome Prods. Int’l, Inc. v. United States,ௗ36 CIT

665, 673, 837 F. Supp. 2d 1294, 1301 (2012) TXRWLQJௗUnited States v. Zannino,ௗ895

F.2d 1, 17 (1st Cir. 1990)).

Accordingly, State Plaintiffs’ arguments regarding CSMS # 67844987 do not

present independent grounds to set aside implementation of Proclamation No. 11012.

IV. Remedy

Plaintiffs seek a permanent injunction, State Pls.’ Mem. at 35–41; Priv. Pls.’

Mem. at 35–40, while the Government argues that Plaintiffs are not entitled to one,

Defs.’ Resp. at 68–72. The State of Washington (through its instrumentalities) and

Private Plaintiffs, i.e., collectively, Importer Plaintiffs, have satisfied the requirements for

permanent injunctive relief.

A permanent injunction does not necessarily follow from success on the merits.

V.O.S. Selections, 149 F.4th at 1339. A plaintiff seeking permanent injunctive relief

must demonstrate:

(1) that it has suffered an irreparable injury; (2) that remedies available at

law, such as monetary damages, are inadequate to compensate for that

injury; (3) that, considering the balance of hardships between the plaintiff

and defendant, a remedy in equity is warranted; and (4) that the public

interest would not be disserved by a permanent injunction.

eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388, 391 (2006). 39 The court considers

whether Importer Plaintiffs have satisfied these eBay factors.

39 The standard for a permanent injunction “is essentially the same as” the standard for

a preliminary injunction except that a plaintiff must establish “actual success” on the

merits rather than “a likelihood of success.” Amoco Prod. Co. v. Vill. of Gambell, AK,

480 U.S. 531, 546 n.12 (1987). That being said, the Government’s arguments against

Court Nos. 26-01472 & 26-01606 Page 50

The court considers the first and second factors together. Importer Plaintiffs

have paid, and, absent injunctive relief, will continue to pay Section 122 duties that the

court has held to be unlawful. While Defendants “do not contest the [c]ourt’s authority

to order reliquidation” of entries subject to Section 122 duties made by prevailing

plaintiffs following a final, unappealable decision on the merits, Defs.’ Resp. at 69; see

also id. at 71, Defendants do not explain why they should be permitted to continue the

unlawful collection of Section 122 duties from Importer Plaintiffs for the duration of the

imposition of such duties. The Government, in effect, seeks the benefit of a stay of the

court’s judgment without showing its entitlement to one or otherwise responding to the

substance of the Plaintiffs’ arguments. See USCIT Rule 62(c)–(d). 40

Additionally, economic harm to Importer Plaintiffs takes several forms. “Price

erosion, loss of goodwill, damage to reputation, and loss of business opportunities are

all valid grounds for finding irreparable harm.” Celsis In Vitro, Inc. v. CellzDirect, Inc.,

injunctive relief appear to assume the court will decide the motion in a preliminary

posture. See Defs.’ Resp. at 68 (arguing Plaintiffs have not shown they will incur harm

“before the Court can decide the case on the merits”) (emphasis added); id. at 69

(arguing Plaintiffs have not shown they will incur harm “while the Court considers their

simultaneous motion for summary judgment”) (emphasis added). The Government’s

arguments regarding harm to Plaintiffs do not address the scenario in which the court

considers injunctive relief concurrent with summary judgment.

40 The court acknowledges the good faith efforts made by the Government to work

towards the refund of unlawfully collected IEEPA duties. See generally, Atmus

Filtration, Inc. v. United States, Court No. 26-01259 (CIT Apr. 1, 2026), ECF No. 52

(court order summarizing CBP’s progress on developing the functionality that will permit

CBP to make the required refunds of duties imposed without legal basis under IEEPA);

Euro-Notions Florida, Inc. V. United States, Court No. 25-0595 (CIT Apr. 14, 2026),

ECF No. 19 (court order providing update on CBP’s progress). As that experience

shows, however, there may be significant delays from the time the imposition of tariffs

are first held unlawful before refunds are effectuated.

Court Nos. 26-01472 & 26-01606 Page 51

664 F.3d 922, 930 (Fed. Cir. 2012); see also Oman Fasteners, LLC v. United States,

125 F.4th 1068, 1089 (Fed. Cir. 2025) (“[L]ayoffs and damage to goodwill . . . are

independently sufficient to establish irreparable harm.”). Private Plaintiffs aver that they

have suffered or will suffer lost profits and damage to business relationships,

investments, and innovation on account of these tariffs. Frisch Decl. ¶¶ 12–13, 18;

Foreman Decl. ¶¶ 20–21. Granting a permanent injunction would also help to prevent

these harms.

Finally, considering the balance of hardships, a remedy in equity is warranted,

and the public interest would be served by a permanent injunction. The third and fourth

elements “merge when the Government is the opposing party.” Nken v. Holder, 556

U.S. 418, 435 (2009). “The public interest is served by ensuring that governmental

bodies comply with the law.” Am. Signature, Inc. v. United States, 598 F.3d 816, 830

(Fed. Cir. 2010). The Government’s arguments on these elements are grounded in the

reasons provided for the Section 122 duties. See Defs.’ Resp. at 71 (“The President

has identified that the balance-of-payments deficits significantly harm[] U.S. national

interests . . . .”); id. at 72 (arguing an injunction would “intru[de] on the President’s

conduct of foreign affairs and efforts to . . . address the rapidly deteriorating balance-of-

payments position of the United States”). These reasons are unpersuasive. Enjoining

unlawful conduct is in the public interest.

The balance of equities favors granting Importer Plaintiffs permanent injunctive

relief. The court need not decide whether the CIT is authorized, post-CASA, 606 U.S.

at 831, to issue universal injunctive relief because such relief is not merited here. The

Court Nos. 26-01472 & 26-01606 Page 52

court finds standing in this case only with respect to Importer Plaintiffs, and those

plaintiffs may be made whole by an injunction specific to them and refunds, with interest

as provided by law, for any Section 122 duties paid before the injunction takes effect. 41

Private Plaintiffs make no specific arguments for a universal injunction. See generally

Priv. Pls.’ Mem. at 35–40; Priv. Pls.’ Reply at 25–28. 42 While State Plaintiffs do, State

Pls.’ Mem. at 41–43, their arguments appear to assume the court will find standing for

all State-parties, inclusive of the non-importing, purchaser States, which is not the case.

And while the one State with standing, the State of Washington, avers harm from the

indirect cost of tariffs passed on by resellers, Hsu Decl. ¶ 6, the potential for increased

costs to one plaintiff is not an appropriate basis for the imposition of a universal

injunction. Accordingly, the court declines to enter a universal injunction.

CONCLUSION AND ORDER

In accordance with the foregoing, it is hereby

ORDERED that State Plaintiffs’ motion for summary judgment (ECF No. 25, Ct.

No. 26-01472) is GRANTED only with respect to Plaintiff The State of Washington; it is

further

41 While State Plaintiffs suggest that a non-universal injunction would violate the

Uniformity Clause because it “would create disparate tax protocols based on

geography,” State Pls.’ Mem. at 42, this argument overlooks that State Plaintiffs seek

relief as importers (or purchasers) of goods making entry at potentially any port in the

country. Thus, the court is not imposing any geographic limitation on Section 122 tariff

treatment for the Importer Plaintiffs entitled to relief.

42 Private Plaintiffs do, however, assert that “the economic impact from these tariffs is

widespread.” Priv. Pls.’ Reply at 27.

Court Nos. 26-01472 & 26-01606 Page 53

ORDERED that all claims by State Plaintiffs other than Plaintiff The State of

Washington are DISMISSED for lack of standing; it is further

ORDERED that Private Plaintiffs’ motion for summary judgment (ECF No. 11, Ct.

No. 26-01606) is GRANTED; and it is further

ORDERED that Plaintiffs’ alternative motions for a preliminary injunction are

DENIED AS MOOT.

Judgment will be entered accordingly.

/s/ Mark A. Barnett

Mark A. Barnett, Chief Judge

/s/ Claire R. Kelly

Claire R. Kelly, Judge

Dated: May 7, 2026

New York, New York

Stanceu, Judge, dissenting: I respectfully dissent because I disagree with the

majority’s interpretation of Section 122 of the Trade Act of 1974, 19 U.S.C. § 2132

(“Section 122”). Further, I believe it was error to grant summary judgments sua sponte

’—ȱŠŸ˜›ȱ˜ȱ‘Žȱ™•Š’—’ěœȱ ’‘ȱœŠ—’—ȱwithout following the procedure USCIT

Rule 56(f) requires. I would have denied both summary judgment motions and

provided the parties “notice and a reasonable time to respond” according to the Rule

56(f) procedure.

I.

At various times in the nation’s history, and in various ways, Congress has

Ž•ŽŠŽȱ˜ȱ‘Žȱ›Žœ’Ž—ȱ‘Žȱ™˜ Ž›ȱ˜ȱŠ•Ž›ȱ‘ŽȱŠ›’ěȱ›ŽŠ–Ž—ȱ˜ȱ˜˜œȱ’–™˜›Žȱ’—˜ȱ

the United States. Some statutes delegating this power expressly allow the President,

subject to various conditions or procedures, to increase or decrease duties on imported

foreign merchandise. 1 Section 122 is such a statute. —ȱœ™ŽŒ’ęŒȱŒ’›Œž–œŠ—ŒŽœǰȱ’ȱ

empowers the President to restrict imports by temporarily imposing or increasing

duties or quotas or, alternatively, to increase imports by temporarily reducing duties or

relaxing quotas. In either case, the President is delegated authority to make a

1In contrast, in at least one statute, Congress delegated to the President the

constitutional power to regulate importation without delegating the power to impose

duties on imported goods. See Learning Resources, Inc. v. Trump, 607 U.S. --, 146 S. Ct.

628 (2026).

Court Nos. 26-01472 & 26-01606 Page 2

determination ‹ŠœŽȱ˜—ȱ‘’œȱ˜ —ȱꗍ’—œȱŠœȱ˜ȱœ™ŽŒ’ꮍȱeconomic conditions in the

United States.

Our review in cases such as this one, which challenge a President’s exercise of

delegated legislative authority, is limited and deferential. In deciding whether the

President acted within such authority, we are not empowered to review the factual

ꗍ’—œ by which he concluded the action was necessary or appropriate. United States

v. George S. Bush & Co., 310 U.S. 371, 380 (1940) (“It has long been held that where

˜—›Žœœȱ‘ŠœȱŠž‘˜›’£ŽȱŠȱ™ž‹•’Œȱ˜ĜŒŽ›ȱ˜ȱŠ”Žȱœ˜–Žȱœ™ŽŒ’ꮍȱ•Ž’œ•Š’ŸŽȱŠŒ’˜—ȱ ‘Ž—ȱ

in his judgment that action is necessary or appropriate to carry out the policy of

˜—›Žœœǰȱ‘Žȱ“ž–Ž—ȱ˜ȱ‘Žȱ˜ĜŒŽ›ȱŠœȱ˜ȱ‘ŽȱŽ¡’œŽ—ŒŽȱ˜ȱ‘ŽȱŠŒœȱŒŠ••’—ȱ˜›ȱthat

action is not subject to review.” ǻŒ’Š’˜—œȱ˜–’ĴŽǼ); Silfab Solar, Inc. v. United States, 892

F.3d 1340, 1349 (Fed. Cir. 2018); Maple Leaf Fish Co. v. United States, 762 F.2d 86, 89 (Fed.

Cir. 1985); Florsheim Shoe Co. v. United States, 744 F.2d 787, 795 (Fed. Cir. 1984) (“The

President’œȱꗍ’—œȱ˜ȱŠŒȱŠ—ȱ‘Žȱ–˜’ŸŠ’˜—œȱ˜›ȱ‘’œȱŠŒ’˜—ȱŠ›Žȱ—˜ȱœž‹“ŽŒȱ˜ȱ

review.”) (citing George S. Bush & Co., 310 U.S. at 379–80; United States Cane Sugar

Žę—Ž›œ’ Ass’n v. Block, 683 F.2d 399, 404 (CCPA 1982); Aimcee Wholesale Corp. v. United

States, 468 F.2d 202, 206 (CCPA 1972)).

II.

In delegating to the President the authority to restrict imports, Section 122(a)(1)

does not limit the term “balance-of-payments ŽęŒ’œ” to measurements of our

Court Nos. 26-01472 & 26-01606 Page 3

country’s balance of payments that are computed according to “liquidity,” “˜ĜŒ’Š•ȱ

œŽĴ•Ž–Ž—œǰȄȱ˜›ȱȃ‹Šœ’Œȱ‹Š•Š—ŒŽǯȄȱ No reference to those methods of measurement, nor

Š—¢ȱ˜‘Ž›ȱŽę—’’˜—ȱ˜ the term “balance-of-payments,” appears in Section 122 or

related provisions of the Trade Act of 1974, and the legislative history does not support

the majority’s interpretation of the statutory term.

I begin my consideration of the majority’s statutory interpretation by deciding

what Congress could not have meant when it referred to our country’s balance of

payments in Section 122(a)(1). First, it was not adopting the Black’s Law Dictionary

Žę—’’˜—ȱ˜ȱ‘ŽȱŽ›–ǰȱ ‘’Œ‘ȱŽę—Žȱbalance of payments as synonymous with the

balance of trade. 2 We know this because Section 122 refers to our country’s payments

balance in subsection (a) and its trade balance in subsection (c), indicating that it

intended to distinguish between these two concepts.

Second, we can say Œ˜—ꍮ—•¢ that Congress did not mean for the balance of

payments ˜ȱ‹Žȱœ˜–Ž‘’—ȱ‘Šȱ Šœȱ˜ȱ‹Žȱ–ŽŠœž›Žȱ˜—•¢ȱŠŒŒ˜›’—ȱ˜ȱȃ˜ĜŒ’Š•ȱ

œŽĴ•Ž–Ž—œȄȱ˜›ȱȃ‹Šœ’Œȱ‹Š•Š—ŒŽǯȄȱȱAs the majority notes, an early version of what was to

become Section 122 was contained in H.R. 6767, which provided that “a serious balance-

of-payments ŽęŒ’ȱexisted when the President determined that ‘the balance of

™Š¢–Ž—œȱǻŠœȱ–ŽŠœž›ŽȱŽ’‘Ž›ȱ˜—ȱ‘Žȱ˜ĜŒ’Š•ȱ›ŽœŽ›ŸŽȱ›Š—œŠŒ’˜—œȱ‹Šœ’œȱ˜›ȱ‹¢ȱ‘Žȱ‹Š•Š—ŒŽȱ

“Balance of payments (1844) The difference between what a country spends

2

buying goods and services from abroad and what it earns selling goods and services

abroad.” Black’s Law Dictionary (11th Ed. 2019).

Court Nos. 26-01472 & 26-01606 Page 4

on current account and long-term-ŒŠ™’Š•Ǽȱ‘Šœȱ‹ŽŽ—ȱ’—ȱœž‹œŠ—’Š•ȱŽęŒ’ȱ˜ŸŽ›ȱŠȱ™Ž›’˜ȱ

of four consecutive calendar quarters.’” Opinion of the Majority (“Majority Op.”) at 34

(quoting Trade Reform Act of 1973, H.R. 6767, 93d Cong. § 401(b)(1)(A) (1973)). By the

Ž›–œȱ’ȱžœŽǰȱ‘ŠȱŸŽ›œ’˜—ȱŽę—ŽȱŠȱȃ‹Š•Š—ŒŽȱ˜ȱ™Š¢–Ž—œȄȱŠœȱ˜—Žȱ–ŽŠœž›Žȱ˜—ȱŠ—ȱ

˜ĜŒ’Š•ȱœŽĴ•Ž–Ž—œȱ‹Šœ’œȱǻȃ˜ĜŒ’Š•ȱ›ŽœŽ›ŸŽȱ›Š—œŠŒ’˜—œȄǼȱ˜›ȱŠŒŒ˜›’—ȱ˜ȱ ‘Šȱ Šœȱ

known as basic balance (“balance on current account and long-term-capital”). As the

majority notes, the House version that was considered in the Senate, H.R. 10710, deleted

‘Žȱ™Š›Ž—‘Ž’ŒŠ•ȱŽę—’’˜—ȱ˜ȱ‹Š•Š—ŒŽȱ˜ȱ™Š¢–Ž—œȱŠ—ȱ‘Žȱ˜ž›-quarters measurement

Š—ȱŠŽȱ‘Žȱȃ•Š›ŽȱŠ—ȱœŽ›’˜žœȄȱšžŠ•’ęŒŠ’˜—ǯȱȱMajority Op. at 36-37.

It is at this point that the majority and I part company. We disagree œ™ŽŒ’ęŒŠ••¢ȱ

Šœȱ˜ȱ‘Žȱœ’—’ęŒŠ—ŒŽȱ˜ȱ‘ŽȱŽ•Ž’˜—ȱ˜ȱ‘Žȱ•Š—žŠŽȱ‘Šȱ‘ŠȱŠ™™ŽŠ›Žȱ’—ȱ‘Žȱ

parenthetical in H.R. 6767. ‘Žȱ–Š“˜›’¢Ȃœȱ’—Ž›™›ŽŠ’˜—ȱ’œǰȱ’—ȱŽěŽŒǰȱ‘Š in drafting

what would become Section 122(a)(1) in the House and Ž—ŠŽȱŠ—ȱŠ˜™’—ȱŠȱꗊ•ȱ

version, Congress ꛜȱŽ•ŽŽȱ‘Žȱ™Š›Ž—‘Ž’ŒŠ•ȱ‹žȱ‘Ž—ȱreverted to the previous

concept of Œ˜—ę—ing the meaning of “balance-of-™Š¢–Ž—œȱŽęŒ’œȄȱ˜ȱŽęŒ’œȱ–ŽŠœž›Žȱ

ŠŒŒ˜›’—ȱ˜ȱ˜ĜŒ’Š•ȱœŽĴ•Ž–Ž—œȱ˜›ȱ‹Šœ’Œȱ‹Š•Š—ŒŽǰȱ‹žȱ ’‘ȱ‘ŽȱŒ‘Š—Žȱ˜ȱŠ’—ȱŠȱ‘’›d

measure, which was the liquidity basis. This raises the question of why, if that was the

intent, neither chamber restored the parenthetical or added an˜‘Ž›ȱ›ŽŽ›Ž—ŒŽȱ˜ȱœ™ŽŒ’ęŒȱ

measurement methods. The reasonable conclusion I can draw from the change from

H.R. 6767 to H.R. 10710 iœȱ‘Šȱ—Ž’‘Ž›ȱ‘Žȱ ˜žœŽȱŠ¢œȱŠ—ȱŽŠ—œȱ˜––’ĴŽŽȱ—˜›ȱ‘Žȱ

Court Nos. 26-01472 & 26-01606 Page 5

Ž—ŠŽȱ’—Š—ŒŽȱ˜––’ĴŽŽ, in formulating what was enacted as Section 122(a)(1), had

such an intent.

The majority quotes an explanatory sentence from the House Report on the

Trade Act of 1974 (“House Report”), as follows: “‘Žȱǽ ˜žœŽǾȱǽǾ˜––’ĴŽŽȱǽ˜—ȱŠ¢œȱ

Š—ȱŽŠ—œǾȱŒ˜—œ’Ž›ŽȱŸŠ›’˜žœȱ˜›–ž•Šœȱ˜›ȱŽę—’—ȱŠȱœŽ›’˜žœȱ‹Š•Š—ŒŽ-of-payments

ŽęŒ’ǰȱ’—Œ•ž’—ȱŠȱœ™ŽŒ’ęŒȱ˜›–ž•Š’˜—ȱ‹ŠœŽȱ˜—ȱ‘ŽȱŽ¡’œŽ—ŒŽȱ˜ȱŠȱœž‹œŠ—’Š•ȱŽęŒ’ȱ

˜ŸŽ›ȱŠȱŒŽ›Š’—ȱ™Ž›’˜ȱ˜ȱ’–Žǰȱ‹žȱ‘ŽȱŒ˜––’ĴŽŽȱŽels that it is not possible to formulate

ŠȱŽę—’’˜—ȱ ’‘ȱ–Š‘Ž–Š’ŒŠ•ȱŽ¡ŠŒ—ŽœœǯȄ Id. at 37 (quoting H.R. Rep. No. 93-571, at

28-29 (1973)). ˜••˜ ’—ȱ‘ŽȱŠ™™›˜ŠŒ‘ȱŠ”Ž—ȱ’—ȱ‘Žȱꗊ•ȱ ˜žœŽȱ‹’••ǰȱ‘ŽȱŽ—ŠŽȱ’ȱ—˜ȱ

include in its version ŠȱŽę—’’˜—ȱ˜ȱȃ‹Š•Š—ŒŽȱ˜ȱ™Š¢–Ž—œȄȱ˜›ȱa temporal reference such

as the four-quarters referenceǰȱŠ—ȱ—˜ȱœžŒ‘ȱŽę—’’˜—ȱ˜›ȱ›ŽŽ›Ž—ŒŽȱwas included in

Section 122 as ultimately enacted. 3

The majority acknowledges that “Congress did not replace the parenthetical

Žę—’’˜—ȱ˜ȱ‹Š•Š—ŒŽȱ˜ȱ™Š¢–Ž—œ” but nevertheless proceeds to conclude that the

“legislative history indicates what Congress contemplated as the measure of balance of

payments,” which the majority views as ‹Ž’—ȱŒ˜—ę—Žȱ˜ȱ‘Ž •’šž’’¢ǰȱ˜ĜŒ’Š•ȱ

œŽĴ•Ž–Ž—œǰȱ˜›ȱ‹Šœ’Œȱ‹Š•Š—ŒŽ measures. Majority Op. at 37. I see no convincing

3In contrast, Congress included in Section 122(c) a required measurement of

balance-of-trade surpluses, which are to be “determined on the basis of the cost-

insurance-freight value of imports, as reported by the Bureau of the Census.” 19 U.S.C.

§ 2132(c)(1).

Court Nos. 26-01472 & 26-01606 Page 6

’—’ŒŠ’˜—ȱ’—ȱ‘Žȱ•Ž’œ•Š’ŸŽȱ‘’œ˜›¢ȱ‘Šȱ˜—›Žœœȱ’—Ž—Žȱ˜ȱŽę—Žȱȃ‹Š•Š—ŒŽȱ˜ȱ

payments” as something that was to be measured in only those three ways for purposes

of Section 122(a)(1).

The House Report conveys the opposite intent in explaining why the references

˜ȱ ˜ȱ–ŽŠœž›Ž–Ž—ȱ–Ž‘˜œȱǻ’ǯŽǯǰȱ˜ĜŒ’Š•ȱœŽĴ•Ž–Ž—œȱŠ—ȱ‹Šœ’Œȱ‹Š•Š—ŒŽǼȱ Ž›Žȱ˜–’ĴŽȱ

from the bill. In the sentence the majority quotes, the House Ways and Means

˜––’ĴŽŽȱ›Ž™˜›Žȱ‘Šȱ’ȱŽŒ’ŽȱŠŠ’—œȱŠȱœ™ŽŒ’ęŒȱȃ˜›–ž•Š’˜—Ȅȱ˜›ȱȃŽę—’’˜—ǯȄȱȱSee

id. at 37 (quoting H.R. Rep. No. 93-571, at 28-29). In the preceding sentence, the House

Report also demonstrated the intent to Šě˜›ȱœ˜–ŽȱŽ›ŽŽȱ˜ȱ’œŒ›Ž’˜—ȱ˜ȱ‘Žȱ›Žœ’Ž—ȱ

as to the method of measurement. H.R. Rep. No. 93-571, at 28 (“‘ŽȱŒ˜––’ĴŽŽȱ

recognizes that there will be an element of judgment on the part of the President in

ŽŽ›–’—’—ȱ‘ŽȱŽ¡’œŽ—ŒŽȱ˜ȱŠȱœŽ›’˜žœȱŽęŒ’ȱ‘Šȱ“žœ’ęŽœȱžœŽȱ˜ȱ‘’œȱŠž‘˜›’¢.”). The

majority apparently would interpret both sentences from the House Report to mean

only that Congress intended to leave to the President’s discretion what would constitute

the size or seriousness of balance-of-™Š¢–Ž—œȱŽęŒ’œȱ‹žȱ—˜ȱ‘ŽȱŒ‘˜’ŒŽȱ˜ȱ

measurement method. Were that the case, it would be reasonable to expect that the

change from H.R. 6767 to H.R. 10710 would have ˜–’ĴŽȱ˜—•¢ȱ‘Žȱfour-quarters

–ŽŠœž›Ž–Ž—ȱ›˜–ȱ‘ŽȱŽ¡ȱŠ—ȱ›ŽŠ’—Žǰȱ’—ȱœ˜–Žȱ˜›–ǰȱŠȱŽę—’’˜—ȱ˜ȱ‘Žȱ–ŽŠ—œȱ˜ȱ

–ŽŠœž›Ž–Ž—ǯȱȱžȱ‘ŽȱŒ‘Š—Žȱ˜–’ĴŽȱ‹˜‘ȱ‘Žȱ˜ž›-šžŠ›Ž›œȱ›ŽŽ›Ž—ŒŽȱŠ—ȱ‘ŽȱŽę—Žȱ

means of measurement, and the Senate did not restore either of them.

Court Nos. 26-01472 & 26-01606 Page 7

The majority’s opinion concludes that “[w]hile Congress did not replace the

™Š›Ž—‘Ž’ŒŠ•ȱŽę—’’˜—ȱ˜ȱ‹Š•Š—ŒŽȱ˜ȱ™Š¢–Ž—œǰȱ‘Žȱ•Ž’œ•Š’ŸŽȱ‘’œ˜›¢ȱ’—’ŒŠŽœȱ ‘Šȱ

Congress contemplated as the measure of the balance of payments.” Majority Op. at 37.

In my view, what Congress signaled by deciding not to replace the parenthetical

Žę—’’˜—ȱin H.R. 6767 speaks directly to the statutory interpretation issue before us. It

signaled that the drafters in the House and Senate decided against specifying a

particular measurement method or methods for balance-of-™Š¢–Ž—œȱŽęŒ’s. What the

majority instead ’Ž—’ęŽœ as indicative legislative history consists of a statistical table in

Šȱ›Ž™˜›ȱ˜ȱ‘ŽȱŽ—ŠŽȱ’—Š—ŒŽȱ˜––’ĴŽŽȱŠ—ȱcertain other statistical tables in Finance

˜––’ĴŽŽȱœŠěȱ›Ž™˜›œǯȱȱThe majority concludes from these tables that Congress

intended that •’šž’’¢ǰȱ˜ĜŒ’Š•ȱœŽĴ•Ž–Ž—œǰȱŠ—ȱ‹Šœ’Œȱ‹Š•Š—ŒŽȱwould be the exclusive

measures of the payments balance for purposes of Section 122(a)(1). Id. The majority

reasons that “[s]™ŽŒ’ęŒŠ••¢ǰȱ‘ŽȱŽ—ŠŽȱŽ™˜›ȱ˜ȱ‘Žȱ›ŠŽȱŒȱ˜ȱŗşŝŚȱ(“Senate Report”)

refers to the three types of balance-of-™Š¢–Ž—œȱŽęŒ’œǰȱ—Š–Ž•¢ȱǻŗǼȱ•’šž’’¢ǰȱǻŘǼȱ˜ĜŒ’Š•ȱ

œŽĴ•Ž–Ž—œǰȱŠ—ȱǻřǼȱ‹Šœ’Œȱ‹Š•Š—ŒŽǰȱ’œŒžœœŽȱ’—ȱ˜‘Ž›ȱ™Š›œȱ˜ȱ‘Žȱ•Ž’œ•Š’ŸŽȱ‘’œ˜›¢ǯ” Id.

(citing S. Rep. No. 93-1298, at 8 (Table 3)).

The Senate Report “›ŽŽ›œȱ˜ȱ‘Žȱ‘›ŽŽȱ¢™Žœȱ˜ȱ‹Š•Š—ŒŽȱ˜ȱ™Š¢–Ž—œȱŽęŒ’œ” in

the sense that all three measures ‘Žȱ–Š“˜›’¢ȱ’Ž—’ęŽœȱŠ›Žȱ‘ŽŠ’—œȱ’—ȱ“Table 3” in that

report, which presents statistics, in billions of dollars, on merchandise trade (“U.S. trade

position”), “Trade balance,” and “Balance of payments.” S. Rep. No. 93-1298, at 8-9

Court Nos. 26-01472 & 26-01606 Page 8

(Table 3). The accompanying text, which does not refer to Section 122, discloses the

actual purpose for which ‘ŽȱŽ—ŠŽȱ’—Š—ŒŽȱ˜––’ĴŽŽȱ’—Œ•žŽȱTable 3 in the Report:

“The performance of the United States in the world economy throughout much of the

™˜œ Š›ȱ™Ž›’˜ȱ‘Šœȱ‹ŽŽ—ȱ–Š›”Žȱ‹¢ȱ™Ž›œ’œŽ—ȱ›ŠŽȱŠ—ȱ™Š¢–Ž—œȱŽęŒ’œǯȱȱ‘Žȱ

performance since 1960 is shown in Table 3 below.” Id. at 7.

The Senate Report presents “Table 5” several pages after Table 3. See id. at 12

(Table 5). Table 5 compares the trade balance (apparently, the merchandise trade

balance) ’‘ȱ‘Žȱ‹Š•Š—ŒŽȱ˜ȱ™Š¢–Ž—œȱ˜›ȱ‘Žȱ¢ŽŠ›œȱŗşŜŜȱ‘›˜ž‘ȱ‘Žȱꛜȱ—’—Žȱ–˜—‘œȱ

of 1974, but it presents payments balance statistics only on the liquidity basis, not

˜ĜŒ’Š•ȱœŽĴ•Ž–Ž—œȱ˜›ȱ‹Šœ’Œȱ‹Š•Š—ŒŽǯȱȱThe accompanying text shows the purpose for the

inclusion of Table 5 Šœȱ‘Žȱ˜––’ĴŽŽȂœȱŒ˜—ŒŽ›—ȱŠ‹˜žȱ‘ŽȱŽěŽŒȱ›ŠŽȱŽęŒ’œȱ Ž›Žȱ

having on the balance of payments as well as the importance of measuring the

merchandise trade balance on a c.i.f. (cost, insurance and freight) rather than an f.o.b.

(free on board) basis. ˜’—ȱ‘Šȱȃ˜ž›ȱ›ŠŽȱŠŒŒ˜ž—ȱ‘Šœȱ‹ŽŽ—ȱ’—ȱŽęŒ’ȱœ’—ŒŽȱŗşŜŜǰȄȱ‘Žȱ

˜––’ĴŽŽȱœŠŽȱ‘ŠȱȃǽǾ‘ŽœŽȱ›ŽŒŽ—ȱ›ŠŽȱŽęŒ’œȱ‘ŠŸŽȱŠŒŒ˜ž—Žȱ˜›ȱover one-half of

˜ž›ȱ˜ŸŽ›Š••ȱ™Š¢–Ž—œȱŽęŒ’œǰȱŠœȱœ‘˜ —ȱ’—ȱŠ‹•Ž 5.” Id. at 7.

It logically can be presumed from the placement of Tables 3 and 5 within the

Senate Report, and in particular from the text accompanying each, that Tables 3 and 5

were included in the report to illustrate the points being made in the accompanying text

on pages 7 to 12 of the report. But it is a leap of logic to presume that these tables were

Court Nos. 26-01472 & 26-01606 Page 9

placed in the text of the report to address an issue not discussed in the text, which is

how payments balances were to be measured for purposes of Section 122. The

discussion of Section 122 occurs much later in the Senate Report, at pages 87-89. That

discussion, like the discussion earlier in the Senate Report, does not address the

question of how a balance-of-payments ŽęŒ’ȱ’œȱ˜ȱ‹Žȱ–ŽŠœž›Žȱfor purposes of the

Section 122(a)(1) authority.

In addition to relying on Table 3 of the Senate Report, the majority also cites a

ŽŒŽ–‹Ž›ȱŗşŝŚȱœŠěȱ›Ž™˜›ȱ™›Ž™Š›Žȱ˜›ȱ‘ŽȱŽ—ŠŽȱ’—Š—ŒŽȱ˜––’ĴŽŽȱ‘ŠȱŒ˜—Š’—œȱa

table presenting balance-of-payments œŠ’œ’ŒœȱŠŒŒ˜›’—ȱ˜ȱ•’šž’’¢ǰȱœŽĴ•Ž–Ž—œǰȱŠ—ȱ

basic balance. Majority Op. at 37 & 37 n.31 (citing ŠěȱReport of S. Fin. Comm., 93d

Cong., Tables and Statistical Material on U.S. Balance of Trade and Balance of Payments

Table 1 (Comm. Print Dec. 1974)) ǻȃŽŒŽ–‹Ž›ȱŗşŝŚȱœŠěȱ›Ž™˜›ȄǼ. Table 1 in the

ŽŒŽ–‹Ž›ȱŗşŝŚȱœŠěȱ›Ž™˜›ȱ’œȱŽœœŽ—’Š••¢ȱ’Ž—’ŒŠ•ȱ˜ȱŠ‹•Žȱřȱ’—ȱ‘ŽȱŽ—ŠŽȱŽ™˜›ȱǻ ’‘ȱŠȱ

slight change to the title). ȱ’œȱ˜—Žȱ‘’—ȱ˜ȱœŠ¢ȱ‘Šȱ‘ŽȱŽ—ŠŽȱ’—Š—ŒŽȱ˜––’ĴŽŽȱ

understood that the payments balance could be measured for Section 122(a)(1) purposes

ŠŒŒ˜›’—ȱ˜ȱ•’šž’’¢ǰȱ˜ĜŒ’Š•ȱœŽĴ•Ž–Ž—œǰȱŠ—ȱ‹Šœ’Œȱbalance. It is quite another to say,

based on the headings in Table 3 and in the same table in the December 1974 œŠěȱ

report, ‘Šȱ‘Žȱ˜––’ĴŽŽȱ’—Ž—Žȱ‘Šȱit would be impermissible for ŽęŒ’œȱ’—ȱ‘Žȱ

country’s payments balance to be measured in any other way for the application of

Section 122(a)(1), particularly in light of the absence of any text in the report so

Court Nos. 26-01472 & 26-01606 Page 10

indicating and the deletion from H.R. 10710 of the parenthetical Žę—’’˜—ȱthat

appeared in H.R. 6767.

The majority concludes that the presenting of statistics on the payments balance

ŠŒŒ˜›’—ȱ˜ȱ•’šž’’¢ǰȱ˜ĜŒ’Š•ȱœŽĴ•Ž–Ž—œǰȱŠ—ȱ‹Šœ’Œȱ‹Š•Š—ŒŽȱ’—ȱŠ‹•Žȱŗȱ˜ȱ‘ŽȱŽŒŽ–‹Ž›

1974 œŠěȱ›Ž™˜›ȱǻ ‘’Œ‘ȱ’œȱŠȱ—ŽŠ›•¢ȱ’Ž—’ŒŠ•ȱŸŽ›œ’˜—ȱ˜ȱŠ‹•Žȱřȱ’—ȱ‘ŽȱŽ—ŠŽȱŽ™˜›Ǽȱȃ’œȱ

thus the clearest indication of the concerns Section 122 was intended to address.”

Majority Op. at 38 —ǯřŗǯȱȱ ȱꗍȱ‘’œȱŒ˜—Œ•žœ’˜—ȱž—Œ˜—Ÿ’—Œ’—ǰȱ˜›ȱ ˜ȱ›ŽŠœ˜—œǯȱȱ’›œǰȱ

Table 1 makes no reference to Section 122. Second, Table 30 in the December 1974 œŠěȱ

report, which the majority also cites, id., in presenting data on the U.S. balance of

payments by area, presents global and area data in the last two superior headings, the

ꛜȱ˜ȱ ‘’Œ‘ȱ’œȱ•Š‹Ž•ŽȱȃŠ•Š—ŒŽȱ˜—ȱŒž››Ž—ȱŠŒŒ˜ž—ȄȱŠ—ȱ‘ŽȱœŽŒ˜—ȱ˜ȱ ‘’Œ‘ȱ’œȱ•Š‹Ž•Žȱ

“Basic balance.” ŽŒŽ–‹Ž›ȱŗşŝŚȱœŠěȱ›Ž™˜›ȱŠȱřŜ-37. This placement could suggest that

both the current account balance and the basic balance were considered to be measures

of the payments balance. Table 30 also presents data (globally only, not by area) on

ȃŽȱ•’šž’’¢ȱ‹Š•Š—ŒŽȄȱŠ—ȱȃĜŒ’Š•ȱœŽĴ•Ž–Ž—œȱ‹Š•Š—ŒŽǯȄȱȱId.

‘ŽȱœŠěȱ›Ž™˜›ȱ™›Ž™Š›Žȱ˜›ȱ‘ŽȱŽ—ŠŽȱ’—Š—ŒŽȱ˜––’ĴŽŽȱŠŽȱŽ‹›žŠ›¢ 26,

1974, which the majority cites, Majority Op. at 36 n.30, also indicates that the country’s

current account balance could have been considered to be a measure of the balance of

payments in 1974. See ŠěȱŠŠȱŠ—ȱŠŽ›’Š•œȱ˜—ȱǯǯȱ›ŠŽȱŠ—ȱŠ•Š—ŒŽȱ˜ȱŠ¢–Ž—œ,

ŠěȱReport of S. Fin. Comm., 93d Cong. (Comm. Print Feb. 26, 1974) (“February 26,

Court Nos. 26-01472 & 26-01606 Page 11

ŗşŝŚȱœŠěȱ›Ž™˜›ȄǼ. 4 ‘’œȱœŠěȱ›Ž™˜› sets forth as Table 1 a table that is essentially

identical to Table 1 ’—ȱ‘ŽȱŽŒŽ–‹Ž›ȱœŠěȱ›Ž™˜› and Table 3 in the Senate Report. 5 But

notably, ‘ŽȱŽ‹›žŠ›¢ȱŘŜǰȱŗşŝŚȱœŠěȱ›Ž™˜› also includes a table (“Table 22”), titled “U.S.

Current Account Balance,” that it places directly under the heading “U.S. Balance of

Payment Trends.*” 6 Ž‹›žŠ›¢ȱŘŜǰȱŗşŝŚȱœŠěȱ›Ž™˜›ȱŠȱŘŚǯȱȱTable 22 presents current

4 The information presented in the Ž‹›žŠ›¢ȱŘŜǰȱŗşŝŚȱœŠěȱ›Ž™˜›ȱappears to have

been statistically updated and condensed to formulate ‘ŽȱŽŒŽ–‹Ž›ȱŗşŝŚȱœŠěȱ›Ž™˜›ǯȱȱ

˜‘ȱŸŽ›œ’˜—œȱŠ›Žȱ˜ĜŒ’Š•ȱ˜––’ĴŽŽȱ›’—œǯȱȱ‘ŽȱŽ‹›žŠ›¢ȱœŠěȱ›Ž™˜›ȱŒ˜—Š’—œȱřşȱ

Š‹•ŽœǰȱŠ—ȱ‘ŽȱŽŒŽ–‹Ž›ȱœŠěȱ›Ž™˜›ȱŒ˜—Š’—œȱřŗǰȱ ’‘ȱ–Š—¢ȱŠ‹•Žœȱ’—ȱŒ˜––˜—

(including Table 30), and is further condensed ˜›ȱ‘ŽȱŽŒŽ–‹Ž›ȱœŠěȱ›Ž™˜›ȱby the

deletion of 9 charts.

5 There are some variations in some of the reported data, apparently due to

statistical updates.

6

In footnote 1, Table 22 describes what “U.S. Current Account Balance” includes

in terms essentially consistent with Œ˜––˜—ȱŽę—’’˜—œȱ˜ȱ‘ŽȱŒž››Ž—ȱŠŒŒ˜ž—ȱ˜Š¢DZ

“Includes merchandise, services, [together, the trade balance] ™›’ŸŠŽȱ›Ž–’ĴŠ—ŒŽœ

[primary income], and government transfers [included in secondary income].” It is not

clear to what the asterisk in the heading refers.

ŽŽ—Š—œȱŽę—Žȱ‘ŽȱȃŒž››Ž—ȱŠŒŒ˜ž—Ȅȱ‹Š•Š—ŒŽȱŠœȱȃ‘Žȱ—Žȱ™˜œ’’˜—ȱ˜ȱǻ’Ǽ goods

trade, (ii) services trade, (iii) primary income, and (iv) secondary income.” Decl. of

Pierre Yared (Acting Chairman, Council of Economic Advisors) ¶ 24, Court No. 26-

01472, ECF No. 35-1 (“Yared Decl.”).

A Glossary maintained by the Bureau of Economic Analysis, U.S. Department of

˜––Ž›ŒŽȱǻȃȄǼȱŽę—Žœȱȃž››Ž—ȱŠŒŒ˜ž—ȱ(international)” as: “Record of

transactions in goods, services, income, and unilateral current transfers between

residents and nonresidents.” See Current Account (International), BEA Glossary (last

accessed May 6, 2026) https://bea.gov/help/glossary/current-account-international. It is

apparent from the terms used that the references to transactions in goods and services

constitute the trade balance, “income” refers to primary income, and “unilateral

transfers” refer to secondary income.

Footnote Continued

Court Nos. 26-01472 & 26-01606 Page 12

account balances for the years 1960 through 1973 (preliminary). The next table, Table

23, is titled “U.S. basic balance” and lists the basic balance for those same years. Id. The

placement of these two tables immediately beneath a heading referring to U.S. balance

of payments trends is an indication that these two measurements—current account

balance and basic balance—may both have been considered to be measurements of the

balance of payments. Following are tables on the merchandise trade balance (Table 24),

the services trade balance (Table 25), military and foreign aid (Table 25), and the private

capital account (Table 26).

‘ŽȱŽ‹›žŠ›¢ȱŘŜǰȱŗşŝŚȱœŠěȱ›Ž™˜›ȱcontains another indication that the current

account balance could have been considered to be a measure of the balance of payments

in 1974. The report presents, on one page (page 45), four charts, in the form of line

graphs, all of which pertain to the general subject of the balance of payments: “U.S. net

•’šž’’¢ȱŠ—ȱ˜ĜŒ’Š•ȱœŽĴ•Ž–Ž—œȱ‹Š•Š—ŒŽ” (shown on the same graph, Figure 13), “U.S.

current account balance” (Figure 14), and “U.S. basic balance” (included under heading

for Figure 14 and shown in the table of contents as Figure 15). Ž‹›žŠ›¢ȱŘŜǰȱŗşŝŚȱœŠěȱ

report at 45. Thus, page 45 and the table of contents, id. at IV, place the chart on current

ŠŒŒ˜ž—ȱ‹Š•Š—ŒŽȱŠŽ›ȱ‘ŽȱŒ‘Š›ȱ˜›ȱ•’šž’’¢ȱŠ—ȱ˜ĜŒ’Š•ȱœŽĴ•Ž–Ž—œȱŠ—ȱ’––Ž’ŠŽ•¢ȱ

ŽŽ—Š—œȱŽę—Žȱ™›’–Š›¢ȱŠ—ȱœŽŒ˜—Š›¢ȱ’—Œ˜–Žȱ’—ȱ‘’œȱ Š¢DZȱȃ›’–Š›¢ȱ’—Œ˜–Žȱ

consists of international investment income and labor compensation, while secondary

’—Œ˜–Žȱ›ŽĚŽŒœȱž—’•ŠŽ›Š•ȱ›Š—œŽ›œȱǻŽǯǯȱ’—œž›Š—ŒŽȱ™Š¢–Ž—œǰȱ˜›Ž’—ȱŠ’ǰȱ›Ž–’ĴŠ—ŒŽœǼǯȄȱȱ

Yared Decl. ¶ 24.

Court Nos. 26-01472 & 26-01606 Page 13

before the chart on basic balance. Figures 14 and 15 have as the horizontal axis the

years 1950 through 1973 (the last year shown as “est.” [estimated]). Id. at 45. Current

account balance is described on the chart as “Including merchandise, investment

income, services, military, and transfers.” Id. A notation on the U.S. current account

chart reads “Best measure of U.S. international competitive position.” Id. It shows

ŽęŒ’œȱŠ—ȱœž›™•žœŽœȱ˜›ȱŗşśŖ-69 and a sharp drop beginning in 1970-71 to below

negative $8 billion in 1972, followed by a rapid increase to a surplus for estimated 1973.

Id. A notation on the following chart, “U.S. basic balance,” reads “Best measure of

persistent features in U.S. payments position” Š—ȱœ‘˜ œȱŽęŒ’œȱ˜›ȱŠ••ȱ¢ŽŠ›œȱ›˜–ȱŗşśŖȱ

to 1972 except for the 1973 estimate, which shows a rapid rise to a surplus, after a sharp

drop in 1970 to a low below negative $9 billion in 1972. Id. This chart states, “Adds

long-term capital movements to current account balance.” Id. The “Source” for all four

charts on page 45 is given as “Council on International Economic Policy Annual Report,

February 1974.” Id.

In summary, the mere references to the three methods of measuring payments

balances in Table 3 of the Senate Report, a table also presented in the Senate Finance

˜––’ĴŽŽȱœŠěȱ›Ž™˜›œ, are far too slender a reed to support the weight of a conclusion

by this Court that Congress intended for “balance-of-™Š¢–Ž—œȱŽęŒ’œȄȱto be measured

˜›ȱŽŒ’˜—ȱŗŘŘǻŠǼǻŗǼȱ™ž›™˜œŽœȱ˜—•¢ȱŠŒŒ˜›’—ȱ˜ȱ•’šž’’¢ǰȱ˜ĜŒ’Š•ȱœŽĴ•Ž–Ž—œǰȱŠ—ȱ‹Šœ’Œȱ

balance. The other tables and charts discussed above cast further doubt on that

Court Nos. 26-01472 & 26-01606 Page 14

conclusion. Had Congress ’—Ž—Žȱ˜ȱ•’–’ȱ–ŽŠœž›Ž–Ž—ȱ˜ȱ•’šž’’¢ǰȱ˜ĜŒ’Š•ȱ

œŽĴ•Ž–Ž—œǰȱŠ—ȱ‹Šœ’Œȱ‹Š•Š—ŒŽȱ˜›ȱ™ž›™˜œŽœȱ˜ȱŽŒ’˜—ȱŗŘŘǻŠǼǻŗǼ, one would expect to see

a Žę—’’˜—ȱ˜ȱ‘ŠȱŽěŽŒȱ’—ȱŽŒ’˜—ȱŗŘŘǰȱŠœȱthere was in H.R. 6767, or at least discussion

in the text of the Senate or House Report signifying that these were the only permissible

methods of measurement. The deletion of the parenthetical from H.R. 6767 and the

accompanying explanation in the House Report, which rejected the idea of specifying

what measures would be permissible, are contrary to any supposition that the President

was required to adhere to those three measurement methods in restricting imports

according to Section 122(a)(1). The œ™ŽŒ’ęŒȱissue of whether Congress intended the

balance of payments to have been measurable according to the balance on current

account likewise is not addressed in the text of the House and Senate reports. But the

Ž‹›žŠ›¢ȱŘŜǰȱŗşŝŚȱœŠěȱ›Ž™˜›ȱŠ—ȱ‘ŽȱŽŒŽ–‹Ž›ȱŗşŝŚȱœŠěȱ›Ž™˜›ȱ’—’ŒŠŽȱ‘Šȱ’ȱŒ˜ž•ȱ

have been a possibility, and I see no indication that Congress intended for it not to be

used. We should not draw conclusions about legislative intent from what we do not

know.

From the reference in subsection (a) of Section 122 to the payments balance and

the reference in subsection (c) to the trade balance, the majority opinion reasons that

“[a]lthough the current account (and the balance of trade as a component of the current

account) are relevant to balance-of-™Š¢–Ž—œȱŽęŒ’œǰȱ‘Ž¢ȱŠ›Žȱ’œ’—ŒǰȱŠ—ȱ‘ŽȱœŠžŽȱ

recognizes the distinction.” Majority Op. at 42. This statement draws an unwarranted

Court Nos. 26-01472 & 26-01606 Page 15

conclusion from the statutory text. The statute distinguishes the payments balance from

the trade balance by using both terms, but it does not distinguish the payments balance

from the current account balance, an entity the statute does not mention. We safely can

conclude, nevertheless, that Congress, in mentioning the payments balance in

subsection (a), intended to refer to a broader measure than the one to which it referred

in subsection (c). 7

Nothing in the statute or the legislative history of Section 122 suggests that

Congress adopted a “frozen in time” approach to statistical measurement such that the

President’s authority under Section 122 would expire should the Commerce

Department’s Bureau of Economic Analysis (“BEA”), the agency charged with

maintaining our country’s economic statistics, change the way it measures and

calculates them. The House and Senate Reports reveal that in enacting Section 122

Congress was motivated by genuine concerns over the economic condition of the

country and wanted the President to have for the future some specified, limited

authority to restrict (or, in a situation described in subsection (c), increase) imports into

the United States. 8 The legislative history does not support the plaintiffs’ view that this

7The majority, who describe the trade balance as a component of the current

account balance, Majority Op. at 42, agrees with defendants that the current account

balance is a broader measure than the trade balance.

The majority opines in dicta that “the grammatical structure of Section 122(a)

8

suggests that ‘fundamental international payments problems’ are an independent

Footnote Continued

Court Nos. 26-01472 & 26-01606 Page 16

authority was not intended to be used after the transition from the Bretton Woods

system to floating exchange rates and was included in the statute only to allow for the

possibility that the United States and its trading partners would return to a fixed-rate

international arrangement. 9

Congress understood in 1974, and long before 1974, that our country’s payments

balance could be measured in different ways that produce different results. See

Subcomm. on Econ. Stats., Joint Econ. Comm., 89th Cong., 1st Sess., The Balance of

Payments Statistics of the United States, at 2 (Comm. Print 1965) (Reporting conclusions of

‘ŽȱȃŽŸ’Ž ȱ˜––’ĴŽŽȱ˜›ȱŠ•Š—ŒŽ-of-Payment Statistics” and stating that “. . . we

Š›ŽŽȱ ’‘ȱ‘ŽȱŽŸ’Ž ȱ˜––’ĴŽŽȱ‘Šȱȁ—˜ȱœ’–™•Žȱ—ž–‹Ž›ȱŒŠ—ȱŠŽšžŠŽ•¢ȱŽœŒ›’‹Žȱ‘Žȱ

international payments position of this country at any time.’”). The three methods

requirement” for Presidential action under Section 122(a)(1), i.e., a requirement that is in

addition to large and serious balance-of-payments deficits. Majority Op. at 31 n.25. The

Senate Report refutes a view that large and serious balance-of-™Š¢–Ž—œȱŽęŒ’œ,

standing alone, Š›Žȱ’—œžĜŒ’Ž—ȱ˜ȱœž™™˜›ȱŠ—ȱ’–™˜›ȱ›Žœ›’Œ’˜—ǯȱ See S. Rep. No. 93-1298,

at 87 ǻȃ—Ž›ȱ‘Žȱ˜––’ĴŽŽȱ‹’••ǰȱ‘Žȱ›Žœ’Ž—ȱ ˜ž•ȱ‹Žȱ›Žšž’›Žȱ˜ȱ’–™˜œŽȱ’–™˜›ȱ

restrictions whenever the U.S. faces large and serious balance-of-™Š¢–Ž—œȱŽęŒ’œǯȄǼǯ

9

The statement of Rep. Henry Reuss the majority quotes makes this point.

Majority Op. at 34 (quoting 119 Cong. Rec. 40,568 (1973)) (concluding that under floating

exchange rates the Section 122 authority would achieve limited adjustments of the

exchange rate of the dollar). The possible measurement of the payments balance by the

basic balance method is another indication, as this is a broad measurement which, like

the current account balance, is based on the economy as a whole and is not confined to

the balance on government-held monetary reserves, as is the official settlements

measurement.

Court Nos. 26-01472 & 26-01606 Page 17

identified in Table 3 of the Senate Report illustrate that there is more than one method,

while the text of that report does not say that these are the only acceptable methods.

The three statistical methods for measuring the payments balance the majority

cites are obsolete. The BEA today measures the balance of payments according to a

method that, as the BEA instructs, is intended to result in a sum of zero. 10 That method

calculates the payments balance by summing the current account balance with the

balances on the capital and financial accounts. 11 By definition, a payments balance

measured according to a method that in principle produces a zero balance cannot

10See Amanda Geiger, What is the Balance of Payments?, Fed. Rsrv. Bank of St.

Louis (last accessed May 6, 2026) https://www.stlouisfed.org/publications/page-one-

economics/2025/oct/what-is-the-balance-of-payments.

11

The majority opinion recognizes that the BEA’s measurement of the balance of

payments “as an accounting principle always nets to zero.” Majority Op. at 39. The

ȱ •˜œœŠ›¢ȱŽę—Žœȱ“Balance of payments” as “Record of transactions between U.S.

residents and foreign residents during a given time period. Includes transactions in

goods, services, income, assets, and liabilities. It is broken down into the current

accounts (international), capital accounts (international), and ꗊ—Œ’Š•ȱŠŒŒ˜ž—œȱ

(international).” Balance of Payments, BEA Glossary (last accessed May 6, 2026)

‘Ĵ™œDZȦȦ‹ŽŠǯ˜ŸȦ‘Ž•™Ȧ•˜œœŠ›¢Ȧ‹Š•Š—ŒŽ-payments. It defines “Capital account

(international)” as “Record of capital transfers between U.S. residents and foreign

residents, such as debt forgiveness and migrants’ transfers, and acquisitions and

’œ™˜œŠ•œȱ˜ȱ—˜—™›˜žŒŽȱ—˜—ę—Š—Œ’Š•ȱŠœœŽœȱ‹Ž ŽŽ—ȱ›Žœ’Ž—œȱŠ—ȱ—˜—›Žœ’Ž—œ.”

Capital Account (international), BEA Glossary (last accessed May 6, 2026)

‘Ĵ™œDZȦȦ‹ŽŠǯ˜ŸȦ‘Ž•™Ȧ•˜œœŠ›¢ȦŒŠ™’Š•-account-international. ȱŽę—Žœȱȃ’—Š—Œ’Š•ȱ

account (international)” as “Record of transactions between U.S. residents and foreign

residents resulting in changes in the level of international claims or liabilities, such as in

deposits, ownership of portfolio investment securities, and direct investments.”

Financial Account (international), BEA Glossary (last accessed May 6, 2026)

www.bea.gov/help/glossary/financial-account-international.

Court Nos. 26-01472 & 26-01606 Page 18

amount to a “fundamental international payments problem” within the meaning of

Section 122. Congress, therefore, meant something else in referring to the balance of

payments in Section 122(a)(1).

The majority reasons that the obsolescence of methods of measuring the

payments deficit is of no concern, Majority Op. at 44, while also concluding that “to

lawfully proclaim the import surcharges” authorized by Section 122(a)(1) the President

must use those obsolete methods to assert “the existence of the conditions required by

the statute,” id. at 29. According to this reasoning, the BEA in effect can repeal Section

122(a)(1) by changing how it measures the balance of payments. That could not have

been the legislative intent.

Characterizing defendants’ position as one in which “the President has discretion

to identify any actionable deficit for purposes of Section 122(a)(1),” the majority reasons

that “Section 122 would lack an intelligible principle if the President could simply

identify any deficit account,” id. at 40 n.33, and that “[s]uch an expansive reading of the

statute would raise a non-delegation issue,” id. at 40. This reasoning sets up a straw

man. Recognizing the need to measure a balance-of-payments deficit by a “reasonable

understanding of the term in the context of section 122,” Proclamation 11012 (“the

Proclamation”) does not “simply identify any deficit account.” Proclamation 11012, (Feb.

20, 2026), 91 Fed. Reg. 9,339 (Exec. Office of the President Feb. 25, 2026) (“Proclamation”)

¶ 6 (emphasis added). The Proclamation addresses, in considerable detail based on

Court Nos. 26-01472 & 26-01606 Page 19

official BEA statistics, various metrics pertaining to the payments balance that involve

statistical measures of developments over the last several years. 12 Among them is a

“staggering” current account deficit that reached four percent of gross domestic

product (“GDP”) in 2024, was two percent of GDP during 2013-2019, and was larger in

2024 than in 2019-2023, id. ¶ 9, and an historically unprecedented U.S. net international

investment position at the end of 2024 that was negative 90 percent of GDP and that the

12Stated in summary form, the Proclamation makes the following factual

ꗍ’—œDZ

Fundamental international payments problems exist that

œ’—’ęŒŠ—•¢ȱ‘Š›–ȱǯǯȱ—Š’˜—Š•ȱ’—Ž›Žœœǰȱ’—Œ•ž’—ȱŽŒ˜—˜–’ŒȱŠ—ȱ

national security interests. Proclamation ¶ 13. “The large, persistent, and

serious” goods ›ŠŽȱŽęŒ’ of $1.2 trillion in 2024 and approximately

$1.2 trillion in 2025 “has grown by 40 percent in the past 5 years alone”

and “contributes to the fundamental international payments problems

facing the United States.” Id. ¶ 8. Beginning in 2024, the “primary

income” balance ž›—Žȱ—ŽŠ’ŸŽȱ˜›ȱ‘Žȱꛜȱ’–Žȱœ’—ŒŽȱŠȱ•ŽŠœȱŗşŜŖȱŠ—ȱ

therefore no longer œŽ›ŸŽȱŠœȱŠȱŒ˜ž—Ž› Ž’‘ȱ˜ȱ‘Žȱ›ŠŽȱŽęŒ’ȱ’—ȱ‘Žȱ

current account and no longer served as a “stabilizing force for the

United States balance-of-payments position even in the face of large and

™Ž›œ’œŽ—ȱ›ŠŽȱŽęŒ’œ.” Id. ¶ 9. The balance on secondary income has

•˜—ȱ‹ŽŽ—ȱ’—ȱŽęŒ’ǯ Id. ¶ 11. The balance-of-payments position is now a

“large and serious balance-of-™Š¢–Ž—œȱŽęŒ’ǯȄ Id. ¶ 13. The “ongoing

decline” in the U.S. net international-investment position shows that the

U.S. balance-of-™Š¢–Ž—œȱŽęŒ’ȱ’œȱ•Š›ŽȱŠ—ȱœŽ›’˜žœ, in that the current

account is a “primary driver” of changes in the net U.S. international-

investment position, which reached 90 percent of gross domestic

product (“GDP”) in 2024. Id. ¶ 10. The “staggering” current account

ŽęŒ’ǰȱ ‘’Œ‘ȱ›ŽŠŒ‘ŽȱŚ percent of GDP in 2024, was almost double that

of 2019-2023 and the largest since 2008. Id. ¶ 9.

Court Nos. 26-01472 & 26-01606 Page 20

›Žœ’Ž—ȱ˜ž—ȱ˜ȱ‹ŽȱŠěŽŒŽȱœ’—’ęŒŠ—•¢ȱ‹¢ȱ‘ŽȱŒž››Ž—ȱŠŒŒ˜ž—ȱŠ—ȱindicative of the

•Š›ŽȱŠ—ȱœŽ›’˜žœȱ‹Š•Š—ŒŽȱ˜ȱ™Š¢–Ž—œȱŽęŒ’ǰ id. ¶ 10.

For the reasons I have discussed, I conclude that the majority errsǰȱꛜǰȱin its

interpretation of the legislative history in holding that the President cannot invoke

œž‹œŽŒ’˜—ȱǻŠǼǻŗǼȱž—•Žœœȱ‘Žȱ’Ž—’ęes Šȱ™Š¢–Ž—œȱŽęŒ’ȱ–ŽŠœž›ŽȱŠŒŒ˜›’—ȱ˜ȱ•’šž’’¢ǰȱ

˜ĜŒ’Š•ȱœŽĴ•Ž–Ž—œǰȱ˜›ȱ‹Šœ’Œȱ‹Š•Š—ŒŽȱŠ—, second, in holding that Congress expressly

foreclosed the possibility of the President’s using cž››Ž—ȱŠŒŒ˜ž—ȱŽęŒ’s as the basis

for action under subsection (a)(1) by referring to the payments balance in subsection (a)

and the trade balance in subsection (c).

III.

The basic balance measurement of the payments balance, in use in 1974, was

calculated directly from the current account balance: it summed the current account

balance, positive or negative, with the balance on long-term capital, positive or

negative. See Majority Op. at 32 n.26, 35 n.29. Under the majority’s approach, this Court

would sustain the Proclamation had it identified a large and serious balance-of-

payments deficit calculated according to a basic balance measurement. At the same

time, the majority regard the issue of whether a balance-of-payments deficit according

to basic balance (or liquidity or official settlements) exists or could be measured to exist

today as one that is beyond the concern of this Court. Majority Op. at 44 (“Whether it is

Court Nos. 26-01472 & 26-01606 Page 21

possible to measure balance-of-payments deficits by settlements, liquidity, or basic

balance today is not our concern.”). But on that issue, I have a concern.

The basic balance and the BEA’s contemporary measurement of the balance of

payments have a feature in common: both include the current account balance. The

basic balance sums the current account balance with only a long-term capital balance

while the contemporary BEA measurement endeavors to sum the current account

balance with the entire capital account and financial account balances. 13 The State

plaintiffs, citing BEA and World Bank Group data, acknowledge that under the

contemporary BEA measurement of the payments balance the current account is

“balanced” principally by the surplus on the financial account, the capital account being

much smaller. 14 The Proclamation cites the enormity of the current account deficit in

13

The BEA uses this measurement of the payments balance with the objective

that the balance will be zero (but apparently difficulties in measuring the capital

account and financial account balances are the reason why the calculated balance of

payments typically results in “discrepancy” deficits). See Geiger, supra note 10.

14

‘ŽȱŠŽȱ™•Š’—’ěœȱŠŒ”—˜ •ŽŽȱ‘Šȱ‘ŽȱŒŠ™’Š•ȱŠŒŒ˜ž—ȱȃtends to be rather

small” and that “the two- Š¢ȱꗊ—Œ’Š•ȱ̘ œȄȱ–ŽŠœž›Žȱ‹¢ȱ‘Žȱꗊ—Œ’Š•ȱŠŒŒ˜ž—ȱŠ›Žȱ

“enormous.” Pl. States’ Mot. for Summary J., and, in the Alternative, for Permanent

Inj. 6 (Mar. 13, 2026) Ct. No. 26-04172, ECF No. 25 (citing Decl. of Douglas A. Irwin

(Prof. of Economics, Dartmouth College) ¶ 9, ECF No. 27-6; BEA, International Trade and

Investment). They cite World Bank Group data estimating the 2024 U.S. ꗊ—Œ’Š•ȱ

account position as a surplus of approximately $1.13 trillion, idǯȱŠȱŗŝȱǻ˜˜—˜Žȱ˜–’ĴŽǼ,

‘’Œ‘ȱ ˜ž•ȱ‹Š•Š—ŒŽȱ‘ŽȱŽ—’›ŽȱŘŖŘŚȱŒž››Ž—ȱŠŒŒ˜ž—ȱŽęŒ’ȱǻǞŗǯŗřȱ›’••’˜—ȱŠœȱ›Ž™˜›Žȱ

by the BEA). The basic balance measurement of the payments balance ŠœȱŽę—Žȱ˜ȱ

sum the current account balance with a balance on ŒŽ›Š’—ȱŒŠ™’Š•ȱ̘ œȱǻ•˜—-term

capital) but does not include the balance on the ꗊ—Œ’Š•ȱŠŒŒ˜ž—ǯ

Court Nos. 26-01472 & 26-01606 Page 22

2024 (i.e., four percent of GDP). Proclamation ¶ 9. It would be questionable as a factual

matter, and indeed presumptuous, to speculate that a long-term capital account

balance—even if it could be measured accurately today, and defendants offer an expert

opinion that it cannot 15—when not combined with the financial account balance, could

be positive at so enormous a magnitude as to offset the enormously negative current

account balance such that the balance of payments as it would be measured by basic

balance is not a large and serious deficit.

Defendants offer the expert opinion that the current account balance, even if

combined with the capital account balance, still would be a large and serious balance-

of-payments deficit. Decl. of Pierre Yared (Acting Chairman, Council of Economic

Advisors) ¶ 15, Ct. No. 26-01472, ECF No. 35-1 (“Yared Decl.”). My point is not that we

necessarily must accept this expert opinion as an established fact for purposes of ruling

on the pending summary judgment motions. But the statistics maintained by the BEA,

and the World Bank Group measurement of the financial account as provided to us by

the State plaintiffs, show the enormous effect that the 2024 deficit on current account

would have had on the balance of payments that year, whether measured by the

contemporary BEA method or as measured by basic balance. It also demonstrates to me

15As the majority mentions, defendants offer expert opinion that today “there is

no single measure of the long-term capital account (the other main component of the

basic balance).” Majority Op. at 39 (quoting Yared Decl. ¶ 37).

Court Nos. 26-01472 & 26-01606 Page 23

another reason why this Court should not invalidate the Proclamation for failure to

include, for example, an actual numerical calculation of the balance-of-payments deficit

according to a basic balance measurement. There being no official BEA statistic of the

payments balance as measured by basic balance, or, specifically, as measured by a sum

of the current account balance and a long-term capital balance, any such numerical

calculation would not be an official government statistic.

We are not experts in international macroeconomics matters and should hesitate

to question whether it was reasonable for the President to rely on official BEA

government statistics rather than a calculation of his own that may have been

acceptable to the majority but would have had no official status. The Proclamation

instead relies on advice the President’s advisors provided after studying “different

methods of evaluating balance-of-payments deficits.” Proclamation ¶ 6. That advice

was that the balance-of-payments deficit is large and serious “under any of these

methods.” Id. The Proclamation states that the advisors considered different methods

of measuring our country’s “balance-of-payments position[] under any reasonable

understanding of the term in the context of section 122,” which Congress enacted more

than a half century ago. Id. The current account is mentioned as only one of the

methods considered. Given the limitations on our judicial role, we are not in a position

to presume that the advisors did not also consider whether the balance-of-payments

deficit would be large and serious according to the basic balance method.

Court Nos. 26-01472 & 26-01606 Page 24

In summary, we should not conclude that the absence from the Proclamation of a

basic balance measurement of the payments balance, in particular, is a ground upon

which to invalidate the Proclamation. Instead, the Proclamation relies on BEA statistics

to support the President’s finding that the balance-of-payments deficit is, by any

reasonable measure within the meaning of Section 122, large and serious. See id. ¶¶ 6, 7,

9, 10, 13. We do not have the expertise to reach the conclusion the majority reaches, and

the limits of our judicial role strongly caution against it. See George S. Bush & Co., 310

U.S. at 379-80. For this reason as well, I disagree with the majority’s position, Majority

Op. at 45-46, that the President acted ultra vires because he did not identify a balance-of-

payments deficit determined according to basic balance or one of the other two

measurements listed in Table 3 of the Senate Report.

IV.

I turn now to the two summary judgment motions pending before us. As

I explain below, I would have denied both summary judgment motions and hel

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