Petition for Writ of Certiorari — Learning Resources, Inc., et al., Petitioners v. Donald J. Trump, President of the United States, et al.

APPENDIX

APPENDIX TO

PETITION FOR A WRIT OF CERTIORARI

BEFORE JUDGMENT

TABLE OF CONTENTS

Order Denying Defendants’ Motion to Transfer

Venue; Granting Plaintiffs’ Motion for a

Preliminary Injunction of the U.S. District

Court for the District of Columbia (May 29,

2025) ........................................................................... 1a

Memorandum Opinion Denying Defendants’

Motion to Transfer Venue; Granting Plaintiffs’

Motion for a Preliminary Injunction of the U.S.

District Court for the District of Columbia (May

29, 2025) ..................................................................... 3a

Order Granting Defendants’ Motion to Stay of

the U.S. District Court for the District of

Columbia (June 3, 2025) ......................................... 44a

50 U.S.C. § 1701 ...................................................... 46a

50 U.S.C. § 1702 ...................................................... 47a

Declaration of Richard Woldenberg in Support

of Plaintiffs’ Motion for a Preliminary

Injunction filed in the U.S. District Court for

the District of Columbia (April 24, 2025) ............... 52a

Transcript of Motion Hearing Held Before the

Honorable Rudolph Contreras United States

District Judge (May 27, 2025) ................................. 73a

1a

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

:

LEARNING

:

RESOURCES, INC., et :

al.,

:

:

Plaintiffs,

: Civil Action:

25-1248 (RC)

No.:

:

Re Document

v.

:

8, 9

Nos.:

DONALD J. TRUMP, et :

al.,

:

Defendants.

:

ORDER

DENYING DEFENDANTS’ MOTION TO TRANSFER

VENUE; GRANTING PLAINTIFFS’ MOTION FOR A

PRELIMINARY INJUNCTION

For the reasons stated in the Court’s

Memorandum

Opinion

separately

and

contemporaneously issued, Defendants’ motion to

transfer (ECF No. 8) is DENIED; and Plaintiffs’

motion for a preliminary injunction (ECF No. 9) is

GRANTED. It is hereby:

DECLARED that the tariffs deriving from

Executive Order 14,195, Imposing Duties To Address

the Synthetic Opioid Supply Chain in the People’s

Republic of China; Executive Order 14,228, Further

2a

Amendment to Duties Addressing the Synthetic Opioid

Supply Chain in the People’s Republic of China;

Executive Order 14,257, Regulating Imports with a

Reciprocal Tariff to Rectify Trade Practices that

Contribute to Large and Persistent Annual United

States Trade Deficits; Executive Order 14,259,

Amendment to Reciprocal Tariffs and Updated Duties

as Applied to Low-Value Imports from the People’s

Republic of China; and Executive Order 14,266,

Modifying the Reciprocal Tariff Rates to Reflect

Trading Parter Retaliation and Alignment, are

unlawful; and it is

FUTHER

[sic]

DECLARED that the

International Economic Emergency Economic Powers

Act does not authorize the President to impose the

tariffs set forth in the above-listed orders; and it is

ORDERED that Defendants are preliminarily

enjoined from collecting any tariff deriving from the

above-listed orders from Plaintiffs Learning

Resources, Inc., and hand2mind, Inc., and it is

FURTHER ORDERED that the preliminary

injunction ordered herein shall be STAYED for

fourteen days so that the parties may seek review in

the Court of Appeals.

SO ORDERED.

This is an immediately appealable order under 28

U.S.C. § 1292(a)(1).

Dated: May 29, 2025

RUDOLPH CONTRERAS

United

States

District

Judge

3a

UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF COLUMBIA

:

LEARNING

:

RESOURCES, INC., et :

al.,

:

:

Plaintiffs,

: Civil Action:

25-1248 (RC)

No.:

:

Re Document

v.

:

8, 9

Nos.:

DONALD J. TRUMP, et :

al.,

:

Defendants.

:

MEMORANDUM OPINION

DENYING DEFENDANTS’ MOTION TO TRANSFER

VENUE; GRANTING PLAINTIFFS’ MOTION FOR A

PRELIMINARY INJUNCTION

I. INTRODUCTION

Learning Resources, Inc. and hand2mind, Inc.

(“Plaintiffs”) are small businesses that develop

educational toys and products for children. They

manufacture most of their products in China, Taiwan,

Korea, Vietnam, Thailand, and India. After President

Donald Trump invoked the International Emergency

Economic Powers Act (“IEEPA”), 50 U.S.C. § 1701 et

seq., to impose sweeping tariffs on imports from those

countries and others, the businesses initiated this

4a

lawsuit against President Trump and other

government officials and agencies (collectively,

“Defendants”). They claim that (1) IEEPA does not

authorize the President to impose tariffs; (2) even if it

does, it does not authorize the challenged tariffs; (3)

the agency actions implementing the tariffs violate the

Administrative Procedure Act, 5 U.S.C. § 701 et seq.;

and (4) to the extent that IEPPA can be interpreted to

permit the President to impose the challenged tariffs,

it violates the nondelegation doctrine.

Defendants have moved to transfer this action to

the United States Court of International Trade,

arguing that that court has exclusive jurisdiction

under 28 U.S.C. §§ 1581(i) and 1337(c). Plaintiffs

disagree. They have also moved for a preliminary

injunction.

This case is not about tariffs qua tariffs. It is

about whether IEEPA enables the President to

unilaterally impose, revoke, pause, reinstate, and

adjust tariffs to reorder the global economy. The Court

agrees with Plaintiffs that it does not. For the reasons

discussed below, the Court denies Defendants’ motion

to transfer and grants Plaintiffs’ motion for a

preliminary injunction.

II. BACKGROUND

Six months after the United States entered World

War I, Congress passed the Trading with the Enemy

Act of 1917 (“TWEA”), which gave the President a

broad range of powers over international trade in

times of war and, as amended in 1933, national

emergencies. Pub. L. No. 65-91, 40 Stat. 411 (1917),

codified as amended at 50 U.S.C. § 1 et seq.; Regan v.

5a

Wald, 468 U.S. 222, 226 n.2 (1984). The statute had

“clear procedures for enhancing the authority of a

President when an emergency arose,” but no

analogous procedures for withdrawing or winding

down that power. Regan, 468 U.S. at 245 (Blackmun,

J., dissenting). So, over time, TWEA came to operate

as a “one-way ratchet to enhance greatly the

President’s discretionary authority over foreign

policy.” Id.

In 1977, Congress responded by limiting TWEA’s

application “solely to times of war.” Id. at 227

(majority opinion); see also 50 U.S.C. § 4302. It also

passed the International Emergency Economic Powers

Act, Pub. L. No. 95-223, 91 Stat. 1626 et seq. (1977), to

“counter the perceived abuse of emergency controls by

presidents to . . . interfere with international trade in

non-emergency, peacetime situations.” Sacks v. Off. of

Foreign Assets Control, 466 F.3d 764, 766 (9th Cir.

2006). IEEPA regulates the President’s “exercise of

emergency economic powers in response to peacetime

crises.” Regan, 468 U.S. at 227-28 (majority opinion).

It established “a new set of authorities for use in time

of national emergency which are both more limited in

scope than those of [TWEA] and subject to various

procedural limitations.”

H.R. Rep. No. 95-459,

“Trading With the Enemy Act Reform Legislation,” at

2 (1977).

Section 1701 of IEEPA provides that President

can use the statute “to deal with any unusual and

extraordinary threat, which has its source in whole or

substantial part outside the United States, to the

national security, foreign policy, or economy of the

United States,” if he declares a national emergency

6a

“with respect to such threat” pursuant to the National

Emergencies Act, 50 U.S.C. §§ 1601-51. 50 U.S.C.

§ 1701(a). The President’s IEEPA powers “may not be

exercised for any other purpose.” Id. § 1701(b).

When Section 1701’s conditions are met, Section

1702(a)(1) establishes that the President may, “by

means of instructions, licenses, or otherwise”:

(A) investigate, regulate, or prohibit—

i.

any transactions in foreign exchange,

ii. transfers of credit or payments between,

by, through, or to any banking institution, to

the extent that such transfers or payments

involve any interest of any foreign country or

a national thereof,

iii. the importing or exporting of currency or

securities,

by any person, or with respect to any property,

subject to the jurisdiction of the United States;

(B) investigate, block during the pendency of an

investigation, regulate, direct and compel,

nullify, void, prevent or prohibit, any

acquisition, holding, withholding, use,

transfer,

withdrawal,

transportation,

importation or exportation of, or dealing in, or

exercising any right, power, or privilege with

respect to, or transactions involving, any

property in which any foreign country or a

national thereof has any interest by any

person, or with respect to any property,

subject to the jurisdiction of the United States;

and[]

7a

(C) when the United States is engaged in armed

hostilities or has been attacked by a foreign

country or foreign nationals, [take additional

actions].

Id. § 1702(a)(1).

Beginning in February 2025, President Trump

issued a series of executive orders invoking IEEPA to

unilaterally impose tariffs on many foreign goods. The

executive orders used three other statutory provisions

to implement the tariffs: the National Emergencies

Act; Section 604 of the Trade Act of 1974, which

authorizes the President to edit the Harmonized Tariff

Schedule of the United States (“HTSUS”); and 3

U.S.C. § 301, which enables the President to delegate

functions to subordinates. Five of President Trump’s

executive orders are challenged in this lawsuit

(collectively, the “Challenged Orders”).

The February 1 China Order. On February 1, the

President issued an executive order imposing 10

percent ad valorem tariffs on Chinese goods. Exec.

Order No. 14,195, Imposing Duties to Address the

Synthetic Opioid Supply Chain in the People’s

Republic of China, 90 Fed. Reg. 9121 (Feb. 1, 2025)

(“February 1 China Order”). The order was predicated

on the influx of synthetic opioids into the United

States through China, which exports fentanyl and

“related precursor chemicals” to the U.S. Id. The

order “expand[s] the scope of the national emergency”

at the U.S.-Mexico border1 to “cover the failure of the

1 See Proclamation No. 10,886, Declaring a National

Emergency at the Southern Border of the United States, 90 Fed.

Reg. 8327 (Jan. 20, 2025); Exec. Order No. 14,157, Designating

8a

[Chinese] government to arrest, seize, detain, or

otherwise intercept chemical precursor suppliers,

money launderers, other [transnational criminal

organizations], criminals at large, and drugs.” Id. § 1,

90 Fed. Reg. at 9122. In issuing the order, President

Trump invoked “section 1702(a)(1)(B) of IEEPA.” Id.

§ 2, 90 Fed. Reg. at 9122.

The March 3 China Amendment. Around one

month later, President Trump raised the China tariffs

to 20 percent based on his determination that China

had “not taken adequate steps to alleviate the illicit

drug crisis through cooperative enforcement actions.”

Exec. Order No. 14,228, Further Amendment to Duties

Addressing the Synthetic Opioid Supply Chain in the

People’s Republic of China, 90 Fed. Reg. 11463 (Mar.

3, 2025) (“March 3 China Amendment”). Then he

ordered the elimination of duty-free de minimis

treatment for goods subject to the tariffs, contradicting

a statutory program permitting duty exemptions for

imported goods valued at less than $800. Exec. Order

No. 14,256, Further Amendment to Duties Addressing

the Synthetic Opioid Supply Chain in the People’s

Republic of China as Applied to Low-Value Imports, 90

Fed. Reg. 14899 (Apr. 2, 2025). The Department of

Homeland Security (“DHS”) and Customs and Border

Patrol (“CBP”) implemented the President’s China

orders by modifying the HTSUS. See Implementation

of Additional Duties on Products of the People’s

Republic of China Pursuant to the President’s

February 1, 2025 Executive Order Imposing Duties To

Cartels and Other Organizations as Foreign Terrorist

Organizations and Specially Designated Global Terrorists, 90 Fed.

Reg. 8439 (Jan. 20, 2025).

9a

Address the Synthetic Opioid Supply Chain in the

People’s Republic of China, 90 Fed. Reg. 9038-01 (Feb.

5, 2025) (implementing 10 percent tariff from

February 1 China order); Further Amended Notice of

Implementation of Additional Duties on Products of

the People’s Republic of China Pursuant to the

President’s Executive Order 14195, Imposing Duties to

Address the Synthetic Opioid Supply Chain in the

People’s Republic of China, 90 Fed. Reg. 11426-01

(Mar. 6, 2025) (implementing 20 percent tariff from

March 3 China Amendment).

Universal and Reciprocal Tariff Order. On April

2, President Trump announced sweeping tariffs on

virtually every U.S. trading partner.2 Exec. Order No.

14,257, Regulating Imports with a Reciprocal Tariff to

Rectify Trade Practices that Contribute to Large and

Persistent Annual United States Goods Trade Deficits,

90 Fed. Reg. 15,041 (Apr. 2, 2025) (the “Universal and

Reciprocal Tariff Order”). These “Liberation Day”

tariffs encompassed a 10 percent universal tariff plus

additional country-specific tariffs ranging from 11 to

50 percent. Id. at 15045, 15049-50. The Universal and

Reciprocal Tariff Order also announced a new national

emergency “arising from conditions reflected in large

2 Exempt

from the tariffs were Canada, Mexico, Russia,

North Korea, Cuba, and Belarus. See Mot. Prelim. Inj. at 10, ECF

No. 9. Separate executive orders had imposed a 25 percent tariff

on goods from Mexico and Canada. See Exec. Order No. 14,194,

Imposing Duties to Address the Situation at Our Southern Border,

90 Fed. Reg. 9117 (Feb. 1, 2025); Exec. Order No. 14,193,

Imposing Duties to Address the Flow of Illicit Drugs Across our

Northern Border, 90 Fed. Reg. 9113 (Feb. 1, 2025). The President

later paused, reinstated, and amended the scope of those orders

in ways not relevant here.

10a

and persistent annual U.S. goods trade deficits” that

“have contributed to the atrophy of domestic

production capacity, especially that of the U.S.

manufacturing and defense-industrial base.” Id. at

15044; see also Defs.’ PI Opp’n at 6 (“On April 2, 2025,

the President declared a national emergency based on

the trade deficit’s effect on the country’s economy and

security.”). To the President, these trade asymmetries

constitute an “unusual and extraordinary threat to the

national security and economy of the United States,”

especially because of “the recent rise in armed conflicts

abroad.” 90 Fed. Reg. at 15041, 15044-45; see also Fact

Sheet: President Donald J. Trump Declares National

Emergency to Increase Our Competitive Edge, Protect

Our Sovereignty, and Strengthen Our National and

Economic Security, The White House (Apr. 2, 2025),

available

at

https://www.whitehouse.gov/factsheets/2025/04/fact-sheet-president-donald-j-trumpdeclares-national-emergency-to-increase-ourcompetitive-edge-protect-our-sovereignty-andstrengthen-our-national-and-economic-security/

[https://perma.cc/UK3L-JDEV]. The 10 percent tariff

went into effect on April 5; the reciprocal tariffs were

originally set to take effect on April 9. Mot. Prelim.

Inj. at 11, ECF No. 9.

April 8 Reciprocal China Amendment & April 9

Reciprocal Modification. But on April 8, President

Trump responded to retaliatory tariffs from China by

raising the reciprocal tariff rate for China from 34

percent to 84 percent. Exec. Order No. 14,259,

Amendment to Reciprocal Tariffs and Updated Duties

as Applied to Low-Value Imports From the People’s

Republic of China, 90 Fed. Reg. 15,509 (Apr. 14, 2025)

11a

(“April 8 Reciprocal China Amendment”). Then, on

April 9, President Trump suspended for 90 days the

reciprocal tariffs listed in the Universal and

Reciprocal Tariff Order for all countries but China.

Exec. Order No. 14,266, Modifying Reciprocal Tariff

Rates to Reflect Trading Partner Retaliation and

Alignment, §§ 2, 3, 90 Fed. Reg. 15625 (Apr. 15, 2025)

(“April 9 Reciprocal Modification”). The April 9

Reciprocal Modification also increased the China

reciprocal tariff rate to 125 percent. Id. At the highest

level, the total tariffs on most Chinese goods reached

a minimum of 145 percent. Ana Swanson & Alan

Rappeport, Tariff Truce With China Demonstrates the

Limits of Trump’s Aggression, N.Y. Times (May 12,

2025),

available

at

https://www.nytimes.com/2025/05/12/business/econo

my/trump-trade-china-tariffs.html

[https://perma.cc/BKS4-NTGJ]. After trade talks in

Geneva, the U.S. lowered the minimum tariffs on

Chinese goods to 30 percent. Id. The ten percent

universal tariffs from the Universal and Reciprocal

Order are still in effect. 90 Fed. Reg. at 15626.

President Trump has stated that the tariffs

originating in the Challenged Orders will raise

“billions of dollars, even trillions of dollars” in revenue.

Mot. Prelim. Inj. at 13 (quoting Bailey Schulz, Trump

is Rolling Out More Tariffs This Month. Where Does

the Tariff Money Go?, USA Today (Apr. 4, 2025),

https://www.usatoday.com/story/money/2025/04/03/tr

ump-tariffs-where-will-money-go/82792578007/

[https://perma.cc/T5DN-73XL]). Treasury Secretary

Scott Bessent estimated that the tariffs will enable the

United States to collect up to $600 billion annually,

12a

paid mainly by U.S. businesses and consumers. Id.

(citing Richard Rubin, Bessent Says Tariff Revenue

Could Reach $600 Billion Annually, Wall St. J. (Apr.

4,

2025),

available

at

https://www.wsj.com/livecoverage/stock-markettariffs-trade-war-04-04-2025/card/bessent-says-tariffrevenue-could-reach-600-billion-annuallyQJfDGCPYDY1C72Ljg1pt

[https://perma.cc/R2RVPNAW]).

No other President has ever purported to impose

tariffs under IEEPA. Joint Br. of Amici Curiae Former

Senator and Governor George F. Allen, et al. (“Law

Professors’ Amicus Br.”) at 7 (citing Christopher A.

Casey et al., Cong. Rsch. Serv., The International

Economic Emergency Powers Act: Origins, Evolution

and Use, R45618 at 27 (2024)), ECF No. 23; Mot.

Prelim. Inj. at 1 (“For five decades and across eight

presidential Administrations, no President had ever

invoked IEEPA to impose a tariff or duty.”). After

President Trump issued the Challenged Orders, small

businesses and other entities brought lawsuits in

federal courts alleging that the tariffs are unlawful.

See, e.g., Emily Ley Paper, Inc. v. Trump, No. 3:25-cv465 (N.D. Fla.) (transferred to the United States Court

of International Trade); Webber v. U.S. Dep’t of

Homeland Security, No. 4:25-cv-26 (D. Mont.) (appeal

pending); California v. Trump, No. 3:25-cv-3372 (N.D.

Cal.); V.O.S. Selections, Inc. v. Trump, No. 25-00066

(Ct. Int’l Trade); Princess Awesome, LLC v. U.S.

Customs & Border Prot., No. 25-00078 (Ct. Int’l

Trade); Oregon v. Trump, No. 25-00077 (Ct. Int’l

Trade); Barnes v. United States, No. 25-0043 (Ct. Int’l

Trade) (dismissed for lack of standing).

13a

Among that group are Plaintiffs. Learning

Resources and hand2mind are family-owned

companies based in Illinois that sell award-winning

toys that help young children develop verbal, counting,

and fine motor skills, and that introduce older children

to science, technology, engineering, and math. 3

Compl. ¶¶ 4, 10, ECF No. 1. They have more than 500

employees and sell their products in over 100

countries. Id. Plaintiffs pay tariffs to the federal

government pursuant to the Challenged Orders

because they import most of their products from China

and other countries subject to IEEPA tariffs. Id. ¶ 24.

According to the companies’ CEO, Richard

Woldenberg, the new China tariff rates “are so high as

to effectively prevent importation.” Decl. of Richard

Woldenberg in Supp. of Pls.’ Mot. for Prelim. Inj.

(“Woldenberg Decl.”) ¶ 6, ECF No. 9-1. The “scale of

the IEEPA tariff burden is unsustainable” for their

businesses, which may be forced to raise prices by 70

percent or more “as a matter of pure survival.” Id.

¶¶ 6, 9. Because Plaintiffs have “no realistic way” to

cover the costs associated with the increased tariffs,

“the tariffs act as an immediate ban on the products

[they] import.” Id. ¶ 15. They estimate that the tariffs

will increase their annual costs over forty-fold. Mot.

Prelim. Inj. at 3.

Plaintiffs brought this lawsuit on April 22 against

President Trump; Kristi Noem, Secretary of DHS; the

Department of Homeland Security; Scott Bessent,

Although distinct legal entities, Plaintiffs are under

common control and share over 100 employees, a single line of

credit, and a single supply chain department. Woldenberg Decl.

¶ 2.

3

14a

Secretary of the Department of the Treasury; the

Department of the Treasury; Howard Lutnick,

Secretary of Commerce; the Department of Commerce;

Pete R. Flores, Acting Commissioner of CBP; Customs

and Border Patrol; Jamieson Greer, U.S. Trade

Representative; and the Office of the U.S. Trade

Representative (collectively, “Defendants”).

See

Compl. Two days later, Defendants filed a motion to

transfer this action to the United States Court of

International Trade (“CIT”). Defs.’ Mot. Transfer, ECF

No. 8; Mem. of Law in Supp. of Defs.’ Mot. Transfer

(“Mot. Transfer”), ECF No. 8, and Plaintiffs filed a

motion for a preliminary injunction. Mot. Prelim. Inj.

The Court of International Trade is an Article III

court that takes its current form from the Customs

Court Act of 1980, Pub. L. 96-417, 94 Stat. 1727 (1980),

and has “unique and specialized expertise in trade

law.” Marmen Inc. v. United States, 134 F.4th 1334,

1338 (Fed. Cir. 2025) (internal quotation omitted).

Congress has given the CIT exclusive jurisdiction over

“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,” as

relevant here, “tariffs, duties, fees, or other taxes on

the importation of merchandise for reasons other than

the raising of revenue.” 28 U.S.C. § 1581(i)(1). District

courts do not have subject-matter jurisdiction over

“any matter within the exclusive jurisdiction of the

Court of International Trade.” 28 U.S.C. § 1337(c).

Plaintiffs oppose the government’s motion to

transfer on the grounds that IEEPA is not a law

providing for tariffs. See Pls.’ Response to Mot.

Transfer (“Pls.’ Transfer Opp’n”), ECF No. 18. The

15a

government filed an opposition to Plaintiffs’

preliminary injunction motion, Mem. of Law in Opp’n

to Pls.’ Mot. for Prelim. Inj. (“Defs.’ PI Opp’n”), ECF

No. 16, and Plaintiffs filed a reply, Pls.’ Reply in Supp.

of Mot. for Prelim. Inj. (“Pls.’ PI Reply”), ECF No. 17.

The government also filed a reply in support of its

motion to transfer. Reply in Supp. of Defs.’ Mot.

Transfer (“Defs.’ Transfer Reply”), ECF No. 21.

Three groups submitted amicus briefs. America

First Legal Foundation (“America First”) filed a brief

in support of Defendants’ motion to transfer. Br. of

Amicus Curiae America First Legal Foundation in

Supp. of Defs.’ Mot. Transfer (“America First Amicus

Br.”), ECF No. 22. A group of law professors, former

politicians, and legal experts filed a brief in support of

Plaintiffs’ motion for a preliminary injunction. Law

Professors’ Amicus Br. And finally, a group of small

businesses affected by the Challenged Orders filed a

brief in opposition to Defendants’ motion to transfer.

Joint Br. of Amici Curiae Emily Ley Paper, Inc., D/B/A

Simplified; Kilo Brava LLC; Kim’s Clothes and

Fashion LLC; and Rokland LLC in Opp’n to Defs.’ Mot.

Transfer (“Small Business Amicus Br.”), ECF No. 24.

Defendants also submitted three notices of

supplemental authority: a hearing transcript from a

similar case before the Court of International Trade,

where a three-judge panel of the CIT heard argument

on a motion for a preliminary injunction and a motion

for summary judgment; a Florida district court’s order

granting the government’s motion to transfer in a

similar case; and a CIT decision dismissing a similar

case, brought by a pro se plaintiff, for lack of standing.

See Notice of Suppl. Authority, ECF Nos. 25, 25-1 (CIT

16a

hearing transcript); Notice of Suppl. Authority, ECF

Nos. 26, 26-1 (decision in the Northern District of

Florida transferring Emily Ley Paper to the CIT);

Notice of Suppl. Authority, ECF Nos. 31, 31-1;

(decision of the CIT dismissing for lack of standing in

Barnes). Plaintiffs filed responses to the two court

opinions. See Response to Notice of Suppl. Authority,

ECF No. 27; Response to Notice of Suppl. Authority,

ECF No. 32. Defendants also submitted as “additional

exhibits” in support of their preliminary injunction

opposition four declarations of U.S. government

officials originally filed in a case pending before the

CIT. Notice of Add’l Exs., ECF No. 34; see also Decls.,

ECF No. 34-1 (declarations of Secretary of State Marco

Rubio (“Decl. of Marco Rubio”), Secretary of Treasury

Scott Bessent (“Decl. of Scott Bessent”); Secretary of

Commerce Howard Lutnick (“Decl. of Howard

Lutnick”); and United States Trade Representative

Jamieson Lee Greer).

The Court held a hearing on the motions to

transfer and for a preliminary injunction on May 27.

Both motions are now ripe for review.

III. LEGAL STANDARDS

A. Motion to Transfer for Lack of Jurisdiction

Federal courts, as courts of limited jurisdiction,

have an obligation to ensure that the actions they

consider are “limited to those subjects encompassed

within a statutory grant of jurisdiction.” Ins. Corp. of

Ireland, Ltd. v. Compagnie Des Bauxites de Guinee,

456 U.S. 694, 701 (1982). A plaintiff bears the burden

of establishing a court’s subject-matter jurisdiction.

Sweigert v. Perez, 334 F. Supp. 3d. 36, 40 (D.D.C.

17a

2018). If a court where an action is filed finds “there

is a want of jurisdiction, the court shall, if it is in the

interest of justice, transfer such action . . . to any other

such court . . . in which the action or appeal could have

been brought at the time it was filed.” 28 U.S.C.

§ 1631; see also Jan’s Helicopter Serv. Inc. v. Fed.

Aviation Admin., 525 F.3d 1299, 1304 (Fed. Cir. 2008).

B. Preliminary Injunction

“A preliminary injunction is ‘an extraordinary

remedy that may only be awarded upon a clear

showing that the [movant] is entitled to such relief.’”

John Doe Co. v. Consumer Fin. Prot. Bureau, 849 F.3d

1129, 1131 (D.C. Cir. 2017) (quoting Winter v. Natural

Res. Def. Council, Inc., 555 U.S. 7, 22 (2008)). “A

plaintiff seeking a preliminary injunction must

establish [1] that he is likely to succeed on the merits,

[2] that he is likely to suffer irreparable harm in the

absence of preliminary relief, [3] that the balance of

equities tips in his favor, and [4] that an injunction is

in the public interest.” Winter, 555 U.S. at 20. “The

last two factors ‘merge when the Government is the

opposing party.’”

Guedes v. Bureau of Alcohol,

Tobacco, Firearms & Explosives, 920 F.3d 1, 10 (D.C.

Cir. 2019) (quoting Nken v. Holder, 556 U.S. 418, 435

(2009)). “Of course, the movant carries the burden of

persua[ding]” the Court that these factors merit

preliminary relief, Fla. EB5 Invs., LLC v. Wolf, 443 F.

Supp. 3d 7, 11 (D.D.C. 2020) (citing Cobell v. Norton,

391 F.3d 251, 258 (D.C. Cir. 2004)), and must do so by

making a “clear showing,” Cobell, 391 F.3d at 258. A

district court must generally consider each of these

factors in deciding whether to issue a preliminary

18a

injunction. See Sherley v. Sebelius, 644 F.3d 388, 39293 (D.C. Cir. 2011).

IV. ANALYSIS

A. Subject-Matter Jurisdiction & Likelihood of

Success on the Merits

At the outset, Plaintiffs must establish that the

Court has subject-matter jurisdiction over their

claims. See Lujan v. Defs. of Wildlife, 504 U.S. 555

(1992). The CIT has exclusive jurisdiction over “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,” in relevant part,

“tariffs, duties, fees, or other taxes on the importation

of merchandise for reasons other than the raising of

revenue.” 28 U.S.C. § 1581(i)(1)(B).

This is undisputably a civil action against

agencies and officers of the United States that “arises

out of” IEEPA. See Kosak v. United States, 465 U.S.

848, 854 (1984) (interpreting “arising out of” to

“include[] a claim resulting from”); Int’l Lab. Rights

Fund v. Bush, 357 F. Supp. 2d 204, 208 (D.D.C. 2004)

(analyzing the CIT’s jurisdiction based on “the

substantive law giving rise to [the plaintiffs’] claims”).

So subject-matter jurisdiction turns on whether

IEEPA is a “law . . . providing for” “tariffs, duties, fees

or other taxes on the importation of merchandise for

reasons other than the raising of revenue.” 28 U.S.C.

§ 1581(i)(1). If the answer is yes, then the Court of

International Trade has exclusive jurisdiction under

28 U.S.C. § 1581(i)(1). If the answer is no, then this

Court has jurisdiction under 28 U.S.C. §§ 1331 and

1346. See also K Mart Corp. v. Cartier, Inc., 485 U.S.

19a

176, 182-83 (1988). The jurisdictional question is

tantamount to the principal merits question: whether

IEEPA authorizes (or “provid[es] for”) tariffs. See Pls.’

Transfer Opp’n at 1.

Defendants argue that this Court must transfer

the case to the CIT because “all of [P]laintiffs’

arguments concern the imposition of tariffs.” E.g.,

Mot. Transfer at 1; see also Defs.’ PI Opp’n at 10-20.

They essentially take the position that all “tariff

cases,” “tariff challenges,” and “tariff matters” must go

to the CIT for that court to determine in the first

instance whether it has jurisdiction.

See Mot.

Transfer at 9-10 (emphases added). That is not how

the CIT’s jurisdictional statute operates. The statute

is categorical: the jurisdictional hook is the nature of

the statute that a case arises out of, not the character

of a plaintiff’s claims. See K Mart Corp., 485 U.S. at

188 (“Congress did not commit to the Court of

International Trade’s exclusive jurisdiction every suit

against the Government challenging customs-related

laws and regulations.”) (emphasis in original); 28

U.S.C. § 1581(i)(1)(B); Miami Free Zone Corp. v.

Foreign Trade Zones Bd., 22 F.3d 1110, 1112 (D.C. Cir.

1994) (holding that “section 1581(i) grants the CIT

exclusive jurisdiction over actions arising from laws

providing for—not ‘designed to deal with’ or ‘relating

to’—revenue from imports”) (emphasis in original). So

the CIT has jurisdiction over this case if, and only if,

IEEPA is a “law of the United States providing for . . .

20a

tariffs.” 4 See 28 U.S.C. § 1581(i)(1)(B); Pls.’ Transfer

Opp’n at 2.

Defendants claim that this Court cannot consider

whether IEEPA provides for tariffs because that

necessarily involves deciding the underlying merits

(or, at this stage of the litigation, whether Plaintiffs

have shown a likelihood of success on the merits). But

“courts always have jurisdiction to determine their

jurisdiction,” Ilan-Gat Eng’rs, Ltd. v. Antigua Int’l

Bank, 659 F.2d 234, 239 (D.C. Cir. 1981), including in

instances where the CIT may ultimately have

exclusive jurisdiction. K Mart Corp., 485 U.S. at 191

(resolving circuit split by rejecting Federal Circuit’s

position that the CIT had exclusive jurisdiction over

certain actions under 28 U.S.C. § 1581(i)). And when

the merits and jurisdiction are intertwined, like here,

a court “can decide all of the merits issues in resolving

a jurisdictional question, or vice versa.” Brownback v.

4 Defendants argue in passing that the CIT has exclusive

jurisdiction over this action under 28 U.S.C. § 1581(i)(1)(D),

which applies to cases arising out of any law of the United States

providing for the “administration and enforcement” of tariffs. See

Mot. Transfer at 9, 11; Defs.’ Transfer Reply at 5. They base this

argument on the fact that the Challenged Orders modified the

HTSUS, which is essentially a list of the applicable tariff rates

for all goods imported into the United States. See Defs.’ Transfer

Reply at 5; 19 U.S.C. § 2483. This case “arises out of” the

substantive law under which the President acted—IEEPA—not

the HTSUS. See Int’l Lab. Rights Fund, 357 F. Supp. 2d at 208.

So 28 U.S.C. § 1581(i)(1)(D) does not independently apply. Cf. K

Mart Corp., 485 U.S. at 190–91 (holding that the CIT’s residual

jurisdictional provision does not apply if the underlying

substantive law is not one “providing for . . . administration and

enforcement” of something that itself falls under the CIT’s

jurisdiction).

21a

King, 592 U.S. 209, 217 (2021) (cleaned up). The Court

will therefore consider both whether it has jurisdiction

and whether Plaintiffs are likely to succeed on the

merits by deciding whether IEEPA is a law providing

for tariffs.

Since the Founding, the Constitution has vested

the “Power to lay and collect Taxes, Duties, Imposts

and Excises” with Congress. U.S. Const. art. I, § 8, cl.

1. The President has no independent discretion to

impose or alter tariffs. See Youngstown Sheet & Tube

Co. v. Sawyer, 343 U.S. 579, 585 (1952). Any

Presidential tariffing authority must be delegated by

Congress. See United States v. Yoshida Int’l, Inc., 526

F.2d 560, 572 (C.C.P.A. 1975) (“[N]o undelegated

power to regulate commerce, or to set tariffs, inheres

in the Presidency.”); Law Professors’ Amicus Br. at 3

(stating that Congress’s power to control taxation is a

“structural safeguard of democratic accountability”).

See generally 19 U.S.C.

Because courts “must enforce plain and

unambiguous statutory language according to its

terms,” the Court looks to IEEPA’s text to determine

whether it is a law providing for tariffs. See Hardt v.

Reliance Standard Life Ins. Co., 560 U.S. 242, 251

(2010); 28 U.S.C. § 1581(i)(1)(B). IEEPA does not use

the words “tariffs” or “duties,” their synonyms, or any

other similar terms like “customs,” “taxes,” or

“imposts.” It provides, as relevant here, that the

President may, in times of declared national

emergency, “investigate, block during the pendency of

an investigation, regulate, direct and compel, nullify,

void, prevent or prohibit” the “importation or

exportation” of “property in which any foreign country

22a

or a national thereof has any interest.” 50 U.S.C.

§ 1702(a)(1)(B). There is no residual clause granting

the President powers beyond those expressly listed.

The only activity in Section 1702(a)(1)(B) that could

plausibly encompass the power to levy tariffs is that to

“regulate . . . importation.” See Defs.’ PI Opp’n at 11

(relying on those words to argue that IEEPA

authorizes the imposition of tariffs).

The Court agrees with Plaintiffs that the power

to regulate is not the power to tax. See Mot. Prelim.

Inj. at 18.

The Constitution recognizes and

perpetuates this distinction. Clause 1 of Article I,

Section 8 provides Congress with the “Power To lay

and collect Taxes, Duties, Imposts and Excises.”

Clause 3 of Article I, Section 8 empowers Congress “To

regulate Commerce with foreign Nations.” If imposing

tariffs and duties were part of the power “[t]o regulate

[c]ommerce with foreign [n]ations,” then Clause 1

would have no independent effect. As Chief Justice

Marshall put it in an early leading case, “the power to

regulate commerce is . . . entirely distinct from the

right to levy taxes and imposts.” Gibbons v. Ogden, 22

U.S. (9 Wheat.) 1, 201 (1824) (Marshall, C.J.). The

Constitution treats the power to regulate and the

power to impose tariffs separately because they are

not substitutes. See id. at 198-99 (describing the

power to tax and the power to regulate as “not . . .

similar in their terms or their nature”).

“Tariff” and “regulate” also take different plain

meanings. To regulate something is to “[c]ontrol by

rule” or “subject to restrictions.” Regulate, The

Concise Oxford Dictionary of Current English 943 (6th

ed. 1976); see also Regulate, New Webster’s Dictionary

23a

of the English Language 1264 (1975) (“to govern by or

subject to certain rules or restrictions”); see also Defs.’

PI Opp’n at 11 (citing similar definitions). Tariffs are,

by contrast, schedules of “duties or customs imposed

by a government on imports or exports.” Tariff,

Random House Dictionary of the English Language

1454 (1973).

To regulate is to establish rules

governing conduct; to tariff is to raise revenue through

taxes on imports or exports. Pls.’ PI Reply at 3. Those

are not the same. 5 Cf. Tom Campbell, Presidential

Authority to Impose Tariffs, 83 La. L. Rev. 595 (2023)

(arguing that “tariffs are economically different from

quantitative import restraints”). If Congress had

intended to delegate to the President the power of

taxing ordinary commerce from any country at any

rate for virtually any reason, it would have had to say

so. See Biden v. Nebraska, 600 U.S. 477, 505-06 (2023)

(requiring a clear statement from Congress when the

interpretation of a provision would have a “question of

‘deep economic and political significance’ that is

central to [the] statutory scheme”) (alteration in

original) (quoting King v. Burwell, 576 U.S. 473, 486

(2015)).

5 Defendants

point out that in McGoldrick v. Gulf Oil

Corporation, 309 U.S. 414, 428 (1940), the Supreme Court

described “[t]he laying of a duty on imports” as both “an exercise

of the taxing power” and “an exercise of the power to regulate

foreign commerce.” Defs.’ PI Opp’n at 15. Both of those powers

belong to Congress, not the President. See U.S. Const. art. I, § 8,

cls. 1, 3. McGoldrick does not stand for the proposition that the

President’s delegated power to “regulate . . . importation”

includes the ability to unilaterally impose tariffs at any rate on

any goods from any country.

24a

The other verbs in Section 1702(a)(1)(B) confirm

that the President’s power to “regulate . . . [the]

importation or exportation” of property does not

encompass the power to tariff. Per the principle of

noscitur a sociis, “a word is given more precise content

by the neighboring words with which it is associated.”

E.g., United States v. Williams, 553 U.S. 285, 294

(2008). Even if regulate may take a broad meaning in

other contexts, see Defs.’ PI Opp’n at 12, the words

immediately surrounding it “cabin the contextual

meaning of that term” here, see Yates v. United States,

574 U.S. 528, 543 (2015). The President’s IEEPA

power to “regulate” is part of a list of verbs otherwise

including “investigate, block during the pendency of

an investigation, . . . direct and compel, nullify, void,

prevent or prohibit.” 50 U.S.C. § 1702(a)(1)(B). Not

one of those words deals with the power to raise

revenue. In the context of the words with which it is

listed, “regulate” is appropriately read to refer to the

President’s power to issue economic sanctions, not to

tariff. See Law Professors’ Amicus Br. at 8, 13; Mot.

Prelim. Inj. at 27.

Nor does IEEPA include language setting limits

on any potential tariff-setting power. Every time

Congress delegated the President the authority to levy

duties or tariffs in Title 19 of the U.S. Code, it

established express procedural, substantive, and

temporal limits on that authority. E.g., 19 U.S.C.

§ 2132. For one example, Section 122 of the Trade Act

of 1974 authorizes the President to impose an “import

surcharge . . . in the form of duties . . . on articles

imported into the United States” to “deal with large

and serious United States balance-of-payments

25a

deficits,” but those tariffs are capped at 15 percent and

can last only 150 days without Congressional

approval. Id. § 2132(a). For another example, Section

338 of the Tariff Act of 1930 grants the President the

authority to “declare new or additional duties” of up to

50 percent on imports from countries that have

imposed

“unreasonable”

charges,

exactions,

regulations, or limitations that are “not equally

enforced upon the like articles of every foreign

country,” or that have “[d]iscriminate[d] in fact

against the commerce of the United States.” 19 U.S.C.

§ 1338(a), (d), (e). Those tariffs cannot take effect for

thirty days. Id. § 1338(d), (e). For yet another

example, Section 301 of the Trade Act of 1974

authorizes an executive officer who serves under the

President to “impose duties or other import

restrictions on the goods of” a foreign country that has

been found, after notice and investigation, to have

committed unfair trade practices or violated trade

agreements with the United States.

19 U.S.C.

§ 2411(c). Unlike IEEPA, each of these statutes

provides specific limitations on when the President

may set or alter tariffs. See also, e.g., 19 U.S.C. § 1862

(authorizing the President to impose tariffs only

against specific products, and only after the Secretary

of Commerce has conducted a predicate investigation

into national security risks); cf. Fed. Energy Admin. v.

Algonquin SNG, Inc., 426 U.S. 548, 559-60, 571 (1976)

(interpreting the statutory phrase “adjust . . . imports”

to give the President the power to impose license fees,

but only after the Secretary of the Treasury

independently determines that an “article is being

imported into the United States in such quantities or

under such circumstances as to threaten to impair the

26a

national security,” and other “clear preconditions to

Presidential action”).

Those comprehensive statutory limitations would

be eviscerated if the President could invoke a virtually

unrestricted tariffing power under IEEPA.6 See Law

Professors’ Amicus Br. at 9 (“If IEEPA meant what the

government says it means, it would enable the

President to impose, revoke, or change tariffs for

essentially any reason he describes as an emergency,

without complying with any of the limitations that

Congress attached to every statute delegating tariff

authority.”), cf. Morton v. Mancari, 417 U.S. 535, 55051 (1974) (discussing the principle that in statutory

interpretation, the specific prevails over the general);

Guidry v. Sheet Metal Workers Nat’l Pension Fund,

493 U.S. 365, 375 (1990) (same). The Court will not

assume that, in enacting IEEPA, Congress repealed by

implication every extant limitation on the President’s

tariffing authority. See Posadas v. Nat’l City Bank,

296 U.S. 497, 503 (1936) (“The cardinal rule is that

repeals by implication are not favored.”). “Congress

has enacted a comprehensive scheme” detailing the

6 Of course the necessary predicate for the exercise of any

authority under IEEPA is the President’s declaration of a

national emergency. 50 U.S.C. § 1701. But the President’s power

to declare a national emergency under the National Emergencies

Act is broad, and Defendants take the position that courts cannot

review presidential declarations of emergencies because they

constitute nonjusticiable political questions. Defs.’ PI Opp’n at 1,

31–36; see also Ctr. for Biological Diversity v. Trump, 453 F. Supp.

3d 11, 31 (D.D.C. 2020) (noting that “no court has ever reviewed

the merits of such a declaration”) (emphasis in original); Yoshida,

526 F.2d at 581 n.32 (“[C]ourts will not review the bona fides of a

declaration of an emergency by the President.”).

27a

conditions where the President may impose tariffs.

See RadLAX Gateway Hotel, LLC v. Amalgamated

Bank, 566 U.S. 639, 645 (2012) (quoting Varity Corp.

v. Howe, 516 U.S. 489, 519 (1996) (Thomas, J.,

dissenting)). “It would be anomalous,” to say the least,

“for Congress to have so painstakingly described the

[President’s] limited authority” on tariffs in other

statutes, “but to have given him, just by implication,”

nearly unlimited tariffing authority in IEEPA. See

Gonzales v. Oregon, 546 U.S. 243, 262 (2006).

Historical practice further indicates that IEEPA

does not encompass the power to levy tariffs. In the

five decades since IEEPA was enacted, no President

until now has ever invoked the statute—or its

predecessor, TWEA—to impose tariffs. See Mot.

Prelim. Inj. at 21, 27; Christopher A. Casey et al.,

Cong. Rsch. Serv., R45618, The International

Emergency Economic Powers Act: Origins, Evolution

and Use, R45618 at 25-26, 58-62 (2024). IEEPA has

been consistently understood by the Executive to

authorize targeted economic sanctions on the person7

or state responsible for the underlying threat to U.S.

national security.

See Loper Bright Enters. v.

Raimondo, 603 U.S. 369, 386 (2024) (“[T]he

longstanding practice of the government . . . can

inform a court’s determination of what the law is.”)

(cleaned up) (quoting NLRB v. Noel Canning, 573 U.S.

7 The Court means “person” in the broad legal sense.

See 1

U.S.C. § 1 (defining “person” to include “corporations, companies,

associations, firms, partnerships, societies, and joint stock

companies, as well as individuals”); see also 50 U.S.C.

§§ 1708(d)(6), 1709(g)(8) (defining “person” as “an individual or

entity”).

28a

513, 525 (2014)); Mot. Prelim. Inj. at 21-27. “This lack

of historical precedent, coupled with the breadth of

authority that the [President] now claims, is a telling

indication that the [tariffs] extend[] beyond the

[President’s] legitimate reach.” See Nat’l Fed’n of

Indep. Bus. v. Dep’t of Lab., Occupational Safety &

Health Admin, 595 U.S. 109, 119 (2022) (per curiam)

(internal quotation marks omitted). Nor have IEEPA

cases traditionally been filed in the CIT. Hundreds of

district court cases cite IEEPA Sections 1701 and

1702, but excluding the cases recently filed

challenging President Trump’s IEEPA tariffs, not one

CIT case cites either provision. See Pls.’ Transfer

Opp’n at 10. This makes sense because the mine run

IEEPA case has nothing to do with the CIT’s “unique

and specialized expertise in trade law.” See, e.g., Holy

Land Found. for Relief & Dev. v. Ashcroft, 333 F.3d

156 (D.C. Cir. 2003) (IEEPA case seeking to vacate

Office of Foreign Asset Controls designations); OKKO

Bus. PE v. Lew, 133 F. Supp. 3d 17 (D.D.C. 2015)

(IEEPA case seeking to unblock a wire transfer);

TikTok Inc. v. Trump, 507 F. Supp. 3d 92 (D.D.C.

2020) (IEEPA case seeking to enjoin ban on social

media application).

General

administrative

practice

also

illustrates—and demands—a distinction between the

power to regulate and the power to tax. When a

statute authorizes an agency to promulgate

regulations on a topic, the agency can implement rules

or restrictions relating to that topic. See, e.g., 42

U.S.C. § 7412 (authorizing the Environmental

Protection Agency to “promulgate regulations

establishing emissions standards”).

The agency

29a

cannot, however, use its standard regulatory powers

to raise revenue by imposing fees, tariffs, or taxes. See

Pls.’ PI Reply at 4-5; cf. Diginet, Inc. v. Western Union

ATS, Inc., 958 F.2d 1388, 1399 (7th Cir. 1992) (“The

legal power to regulate is not necessarily the legal

power to tax.”). Congress speaks clearly when it

delegates to an agency the authority to impose fees on

regulated entities. See 49 U.S.C. § 40117(j) (listing the

powers to tax and to regulate separately); 16 U.S.C.

§ 460bbb-9(a) (same); 2 U.S.C. § 622(8)(B)(i) (same).

The statutory term “regulate,” on its own, is not so

capacious. That is true whether the power to regulate

is delegated to an administrative agency or to the

President.

Defendants’ counterarguments cannot and do no

[sic] overcome IEEPA’s plain meaning. For one thing,

their proposed interpretation of Section 1702(a)(1)(B)

conflicts with the provision’s textual limits. The

President’s IEEPA powers extend only to “any

property in which any foreign country or a national

thereof has any interest.” 50 U.S.C. § 1702(a)(1)(B);

see Real v. Simon, 510 F.2d 557, 562 (5th Cir. 1975).

Tariffs are typically assessed after U.S.-based

importers have taken legal possession of imported

goods. See 19 U.S.C. § 1484(a)(2)(B) (generally

authorizing the “owner or purchaser” of goods to be the

importer of record); U.S. Customs & Border

Protection, Entry Summary and Post Release

Processes

(last

modified

Apr.

10,

2025),

https://www.cbp.gov/trade/programsadministration/entry-summary

[https://perma.cc/4U4F-7U6H] (“Within 10 days of the

release of the cargo, the importer must pay the

30a

estimated duties on their imported goods.”). Property

wholly owned by U.S. nationals falls outside of

IEEPA’s scope. See 50 U.S.C. § 1702(a)(1)(B); see also

Law Professors’ Amicus Br. at 8-9 (describing how all

the “permitted presidential actions” in IEEPA “have

their effects abroad,” while tariffs are “taxes paid by

Americans”).

And as Plaintiffs pointed out at oral argument,

Defendants’ interpretation could render IEEPA

unconstitutional. IEEPA provides that the President

may “regulate . . . importation or exportation.” 50

U.S.C. § 1702(a)(1)(B). The Constitution prohibits

export taxes. See U.S. Const. art. I, § 9, cl. 5 (“No Tax

or Duty shall be laid on Articles exported from any

State.”). If the term “regulate” were construed to

encompass the power to impose tariffs, it would

necessarily empower the President to tariff exports,

too.

The Court cannot interpret a statute as

unconstitutional when any other reasonable

construction is available. See Nat’l Fed’n of Indep.

Bus. v. Sebelius, 567 U.S. 519, 563 (2012).

Defendants’ interpretation would also create a

jurisdictional split between IEEPA actions initiated by

the government, which are not “commenced against

the United States, its agencies, or its officers,” and

would fall under the jurisdiction of the district courts;

and IEEPA actions initiated against the government,

which would go to the CIT. See 28 U.S.C. § 1581(i)(1);

50 U.S.C. § 1705(a)-(c) (establishing civil and criminal

penalties for violations of IEEPA); see, e.g., United

States v. Three Sums Totaling $612,168.23 in Seized

U.S. Currency, 55 F.4th 932, 935-36 (D.C. Cir. 2022)

(IEEPA claim filed by the government in federal

31a

district court). That would totally warp the principles

of consistency and expertise that Defendants invoke to

support their claim that the CIT has exclusive

jurisdiction over this action. See Mot. Transfer at 910.

Defendants lean heavily on United States v.

Yoshida International, Inc. (“Yoshida”), 526 F.2d 560,

a 1975 decision from the Court of Customs and Patent

Appeals, the Federal Circuit’s predecessor, but that

case is not binding on this Court. See Defs.’ PI Opp’n

at 2, 4, 12, 14, 16-19, 23, 26-28, 32, 35; see also Coal. to

Preserve the Integrity of Am. Trademarks v. United

States, 790 F.2d 903, 905-07 (D.C. Cir. 1986), aff’d in

part sub nom. K Mart. Corp., 485 U.S. at 190-91

(rejecting Federal Circuit’s jurisdictional analysis).

Nor does the Court find it persuasive. 8

The facts of Yoshida are as follows. During the

summer of 1971, the United States faced “an economic

crisis” arising out of a balance of payments deficit.

Yoshida, 526 F.2d at 567. President Nixon responded

by issuing a proclamation that, among other things,

imposed a 10 percent surcharge on imported goods.

Id.; see also Proclamation No. 4074, 36 Fed. Reg. 15724

(Aug. 17, 1971). The tariffs were known as the “Nixon

8 Two other district courts have, in cases materially similar

to this one, granted the government’s motion to transfer to the

CIT largely in reliance upon Yoshida. See Webber v. U.S. Dep’t of

Homeland Sec., 2025 WL 1207587 (D. Mont. Apr. 25, 2025);

Emily Ley Paper v. Trump, 2025 WL 1482771 (N.D. Fla. May 20,

2025). This Court respectfully disagrees with their analyses.

And the Court finds it even less persuasive that the CIT, which

is bound by Yoshida, is exercising jurisdiction over lawsuits

raising similar claims.

32a

shock,” see Defs.’ PI Opp’n at 17, and were withdrawn

in less than five months, Law Professors’ Amicus Br.

at 11. A zipper importer, Yoshida International,

challenged the tariffs’ legality in a refund suit.

Yoshida, 526 F.2d at 566. At the time Section 5(b) of

the TWEA allowed the President to, in emergencies,

“regulate . . . [the] importation . . . of . . . any property

in which any foreign country or a national thereof has

any interest.”9 Id. at 570. Although President Nixon

had not invoked TWEA, 10 the Customs Court 11

analyzed whether that statute authorized the tariffs

and concluded that it did not. Yoshida Int’l, Inc. v.

United States (“Yoshida I”), 378 F. Supp. 1155, 1171

(Cust. Ct. 1974), rev’d, Yoshida, 526 F.2d at 576

(C.C.P.A. 1975) (“It cannot be said that the investiture

of a power to ‘regulate’ necessarily includes, per se, the

power to levy duties.”); see also id. at 1172 (“If the

words ‘regulate . . . importation’ were given the

construction contended by the defendant, the

President by the declaration of a national emergency

could determine and fix rates of duty at will, without

regard to statutory rates prescribed by the Congress

9 The same language appears in IEEPA.

10 In issuing Proclamation 4074, President Nixon instead

invoked the Tariff Act of 1930 and the Trade Expansion Act of

1962. 36 Fed. Reg. at 15724; Yoshida, 526 F.2d at 569; H.R. Rep.

No. 95-459, at 5 (1977) (“[TWEA] was not among the statutes

cited in the President’s proclamation as authority for the

surcharge.”); see also Pls.’ PI Reply at 9–10. TWEA was first cited

“later by the Government in response to a suit brought in

Customs Court by Yoshida International”—i.e., in Yoshida. H.R.

Rep. No. 95-459, at 5.

11 The Customs Court is the CIT’s predecessor.

See

Customs Courts Act of 1980, Pub. L. No. 96-417, § 702, 94 Stat.

1727, 1748 (1980).

33a

and without the benefit of standards or guidelines

which must accompany any valid delegation of a

constitutional power by the Congress.” (alteration in

original)).

The Court of Customs and Patent Appeals

reversed based on “the intent of Congress” and “the

broad purposes of the [TWEA].” Yoshida, 526 F.2d at

583; see also id. at 573 (emphasizing that “the primary

implication of an emergency power is that it should be

effective to deal with a national emergency

successfully”). That is no longer how courts approach

statutory interpretation. See Am. Fed. of Gov. Empls.,

Nat’l Council of HUD Locals Council 222, AFL-CIO v.

FLRA, 99 F.4th 585, 590 (D.C. Cir. 2024) (discussing

how purposivism was, by the end of the twentieth

century, “largely rejected in favor of a stricter focus on

a statute’s text” (citing John F. Manning, Textualism

and the Equity of the Statute, 101 Colum. L. Rev. 1, 67 (2001))); Loper Bright, 603 U.S. at 443 n.6 (Gorsuch,

J., concurring) (describing how in 1984 “there were

many judges who abhorred plain meaning and

preferred instead to elevate legislative history and

their own curated accounts of a law’s purposes over

enacted statutory text,” but now courts have “a more

faithful adherence to the written law” (cleaned up)).

The Supreme Court could not be more clear that courts

must focus on a statute’s text. E.g., Jimenez v.

Quarterman, 555 U.S. 113, 118 (2009) (“As with any

question of statutory interpretation, our analysis

begins with the plain language of the statute.”); see

also Lamie v. U.S. Trustee, 540 U.S. 526, 534 (2004)

(“It is well established that ‘when the statute’s

language is plain, the sole function of the courts—at

34a

least where the disposition required by the text is not

absurd—is to enforce it according to its terms.’”

(quoting Hartford Underwriters Ins. Co. v. Union

Planters Bank, N.A., 530 U.S. 1, 6 (2000))). So

Yoshida’s reasoning is not compelling on its own

terms.

And in deciding that case, the Court of Customs

and Patent Appeals acknowledged that “nothing in the

TWEA or in its history . . . specifically either

authorizes or prohibits the imposition of a surcharge,”

and that “Congress did not specify that the President

could use a surcharge in a national emergency.”

Yoshida, 526 F.2d at 572-73, 576. Yoshida also

expressly rejected the premise that the TWEA enabled

the President to “impos[e] whatever tariff rates he

deems desirable,” id. at 578, which is the power

President Trump has claimed in issuing the

Challenged

Orders.

Yoshida

is

further

distinguishable because the tariffs at issue there

applied only to goods already subject to tariff

reductions, and at rates that did not exceed the

original statutory maximum set out by Congress. See

Law Professors’ Amicus Br. at 12 n.2.

As Plaintiffs point out, other events confirm that

Congress did not intend for the language “regulate . . .

importation” to delegate the authority to impose

tariffs. See Pls.’ PI Reply at 11-12. Just before

enacting IEEPA, Congress passed Section 122 of the

Trade Act of 1974. Pub. L. No. 93-618, 88 Stat. 1978

(1975). That statute specifically authorized the tariffs

President Nixon had imposed in Proclamation 4074 by

providing that the President may impose an “import

surcharge . . . in the form of duties . . . on articles

35a

imported into the United States” to “deal with large

and serious United States balance-of-payments

deficits.”

19 U.S.C. § 2132(a); see also id.

§ 2411(c)(1)(B). Section 122 would have been pointless

if Congress understood TWEA (and later, IEEPA) to

allow that same tariffing authority. And in reaching

its holding, the Yoshida court expressly relied on the

fact that there was then no specific statute “‘providing

procedures’ for dealing with a national emergency

involving a balance of payments problem such as that

which existed in 1971.” Yoshida, 526 F.2d at 578; see

also id. at 582 n.33 (expressly declining to determine

what effect “the specific grant of the surcharge

authority spelled out in the Trade Act of 1974” had on

the President’s TWEA powers in 1971). That is no

longer true.

Finally, the President’s IEEPA powers were

designed to be “more limited in scope than those of

[TWEA].” H.R. Rep. No. 95-459, at 2 (1977). The

Court disagrees with Defendants that, by adopting the

TWEA’s language in IEEPA, Congress endorsed

Yoshida’s holding. See Pls.’ PI Reply at 13 (arguing

that courts only assume Congress adopts an earlier

judicial construction of a phrase where there is

“settled precedent” on the interpretation of a statute,

and that conflicting lower court decisions do not

constitute settled precedent (quoting United States v.

Collazo, 984 F.3d 1308, 1328 (9th Cir. 2021))). Contra

Defs.’ PI Opp’n at 4, 12, 14. Yoshida is not a reason

for this Court to reject IEEPA’s plain meaning.

***

Two conclusions follow from the Court’s analysis.

First, because IEEPA is not a “law . . . providing for

36a

tariffs,” this Court, not the CIT, has jurisdiction over

this lawsuit. 12 The statutory phrase “regulate . . .

importation,” as used in IEEPA, does not encompass

the power to tariff. The plain meaning of “regulate” is

not “to tax.” And historical practice, as well as

Congress’s actions in response to the “Nixon shock”

tariffs, confirm that the statute is not so capacious.

Second, because IEEPA does not authorize the

President to impose tariffs, the tariffs that derive from

the Challenged Orders are ultra vires. Plaintiffs have

therefore shown that they are likely to succeed on the

merits of their claim that the President, in issuing the

Challenged Orders, acted ultra vires, and that the

agency defendants, in implementing them, violated

the Administrative Procedure Act. The Court does not

reach Plaintiffs’ alternative arguments that IEEPA

does not authorize these specific tariffs or that, if it

12 Although Defendants do not raise this argument, Amicus

America First takes the position that the CIT has exclusive

jurisdiction over all IEEPA actions because it is a law “providing

for . . . embargoes . . . for reasons other than protections of the

public health or safety.” See America First Amicus Br.; 28 U.S.C.

§ 1581(i)(1)(C). That would be a sea change in IEEPA practice,

as district courts have exercised jurisdiction over hundreds of

IEEPA cases brought against the government. See Pls.’ Transfer

Opp’n at 10. Such a jurisdictional shift would also run counter to

the CIT’s role as a “specialized court of limited jurisdiction.” See

Horizon Lines, LLC. v. United States, 414 F. Supp. 2d 46, 52

(D.D.C. 2006). Further, Presidents have used IEEPA to respond

to threats to public health and safety. For example, the February

1 China Order challenged in this case expressly imposed IEEPA

sanctions to address the illegal flow of fentanyl into the U.S. 90

Fed. Reg. at 9121. If IEEPA provides for embargoes, those

embargoes could be to protect the public health or safety. That

brings IEEPA outside the scope of Section 1581(i)(1)(C), so

America First’s jurisdictional argument fails.

37a

does authorize these

nondelegation doctrine.

tariffs,

it

violates

the

B. Irreparable Harm

Plaintiffs have established that they will likely

suffer irreparable harm absent a preliminary

injunction because the tariffs originating in the

Challenged Orders pose an existential threat to their

businesses. See, e.g., Woldenberg Decl. ¶ 28; Mot.

Prelim. Inj. at 41; see also League of Women Voters of

U.S. v. Newby, 838 F.3d 1, 8-9 (D.C. Cir. 2016)

(reiterating that “a preliminary injunction requires

only a likelihood of irreparable injury”). They cannot

offset the highest IEEPA tariffs without raising prices

70 percent or more “as a matter of pure survival,”

Woldenberg Decl. ¶ 9; their customers have already

canceled over $1 million in orders, id. ¶ 10; and they

face an immediate 40 or 50 percent decline in sales,

year-over-year, id. ¶ 11. The companies “cannot

possibly absorb the costs of the increased tariffs”

without “changing [their] pricing radically.” Id. ¶¶ 6,

14. But they cannot pass price increases onto their

customers without selling substantially fewer

products. Id. ¶¶ 16, 18. Plaintiffs are not “massive

entities that can withstand such losses in their core

business[es].” See Everglades Harvesting & Hauling,

Inc. v. Scalia, 427 F. Supp. 3d 101, 116 (D.D.C. 2019).

Nor can they reduce the quality of their products to

support lower prices:

reducing quality is

“unthinkable” for “premium brands” like Plaintiffs,

and is practically unworkable because it would require

them to “change the design and/or production of more

than 2,000 products at once.” Id. ¶ 15.

38a

Without an injunction, Plaintiffs may have to

refinance loans on unfavorable terms; significantly

scale back operations and product offerings; close

facilities; lay off employees; or possibly sell their

businesses. Mot. Prelim. Inj. at 41. Granted, financial

losses typically do not constitute irreparable harm.

E.g., Wisc. Gas Co. v. FERC, 758 F.2d 669, 674 (D.C.

Cir. 1985). But that is not the case when “the loss

threatens the very existence of the movant’s business.”

Id.

The government argues that Plaintiffs’ harms are

speculative and conclusory. See Defs.’ PI Opp’n at 3739. The Court disagrees. See Pls.’ PI Reply at 20-21

(detailing, to the extent possible, the specific costs that

Plaintiffs have incurred because of the Challenged

Orders). How could Plaintiffs possibly describe the

exact costs they will face from paying tariffs that the

President imposes, pauses, adjusts, and reimposes at

will? See Woldenberg Decl. ¶¶ 7-8 (describing the

“ever-changing situation with the IEEPA tariffs” and

“considerable uncertainty about future economic

conditions and trade rules”). The instability and

unpredictability of the changing tariff rates cause

“massive disruptions in [their] supply chain, business

relations, and business operations.” Id. ¶ 8; see Tex.

Children’s Hosp. v. Burwell, 76 F. Supp. 3d 224, 242

(D.D.C. 2014). Without preliminary relief, Plaintiffs

will be subjected to ongoing “supply chain chaos, an

incredibly burdensome and constantly shifting tariff

landscape, and a very high price to be paid for

incorrect logistical judgments.” Woldenberg Decl.

¶ 10. And because their financial recovery is limited

to the value of any tariffs they wrongly pay, see 19

39a

U.S.C. § 1505(a)-(b), Plaintiffs will not be able to

recover lost profits, lost customers, or the “additional

cost[s]” of finding “replacement[s]” for high-tariff

imports. See Vaqueria Tres Monjitas, Inc. v. Irizarry,

587 F.3d 464, 485 (1st Cir. 2009) (“[T]he inability to

supply a full line of products may irreparably harm a

merchant by shifting purchasers to other suppliers.”);

Nalco Co. v. EPA, 786 F. Supp. 2d 177, 188 (D.D.C.

2011) (holding that agency action that would make it

“difficult for [the plaintiff] to attract new customers” is

“at least some degree of irreparable injury”).

As Plaintiffs stated at oral argument, to the

extent the tariffs cause them not to import goods in the

first instance, they cannot recover the value of the

resulting lost sales, business opportunities, market

share, or customer goodwill. See Mot. Prelim. Inj. at

38-39. In this context, those harms qualify as

irreparable. See, e.g., Patriot, Inc. v. U.S. Dep’t of

Housing & Urban Dev., 963 F. Supp. 1, 5 (D.D.C. 1997)

(“damage to [a company’s] business reputation” can be

“irreparable harm”); Nalco Co., 786 F. Supp. 2d at 188

(finding irreparable harm where petitioner would

“suffer the loss of ‘[l]ong-standing clients . . . [that may

be] unwilling, or unable, to do business’” with them

absent an injunction (alterations in original) (quoting

Feinerman v. Bernardi, 558 F. Supp. 2d 36, 50-51

(D.D.C. 2008))). Contra Defs.’ PI Opp’n at 38 (stating,

without support, that Plaintiffs’ “loss of business

opportunities and goodwill” could be “indirectly”

redressed through refunds). The Court is therefore

satisfied

that

Plaintiffs

have

demonstrated

irreparable harm.

40a

C. Balance of Equities & Public Interest

Finally, the Court considers whether the balance

of equities and the public interest favor a preliminary

injunction. When the government is the party to be

enjoined, these two factors merge. See Nken, 556 U.S.

at 435. The Supreme Court has instructed that “[a]n

injunction is a matter of equitable discretion; it does

not follow from success on the merits as a matter of

course.” Winter, 555 U.S. at 32. “In exercising their

sound discretion, courts of equity should pay

particular regard for the public consequences in

employing the extraordinary remedy of an injunction.”

Weinberger v. Romero-Barcelo, 456 U.S. 305, 312

(1982) (citing R.R. Comm’n v. Pullman Co., 312 U.S.

496, 500 (1941)).

Without a preliminary injunction, Plaintiffs will

sustain significant and unrecoverable losses. They

take the position that if the Court grants their motion,

the government will face a pause of the IEEPA tariffs

only as directed to two small businesses whose imports

are relatively inconsequential to the national

economy. See Mot. Prelim. Inj. at 43 (requesting that

the Court “enjoin the agency Defendants and their

agents, employees, and all persons acting under their

direction and control, from taking any action to collect

tariffs from Plaintiffs under the Challenged Orders”)

(emphasis added). And “[t]he public interest is served

when the legislation that Congress has enacted,” like

IEEPA, “is complied with.” American Rivers v. U.S.

Army Corps of Eng’rs, 271 F. Supp. 2d 230, 262 (D.D.C.

2003); see also League of Women Voters, 838 F.3d at 12

(holding that is there generally no public interest in

unlawful agency action).

41a

On the government’s side, four Cabinet officials

submitted declarations outlining the “catastrophic

harm to American foreign policy and national security

that would ensue from granting the relief requested in

[P]laintiffs’ motion.” Notice of Add’l Exs. at 1; see also

Decl. of Howard Luntick ¶ 19 (“All told, an

invalidation of President Trump’s ability to use IEEPA

would dismantle a cornerstone of President Trump’s

national security architecture, irreparably harm the

government’s ability to respond to evolving foreign

threats, . . . jeopardize vital trade agreements, collapse

ongoing negotiations, allow for Chinese aggression

during a period of strategic competition, leave the

American people exposed to predatory economic

practices by foreign actors, and threaten national

security.”). Secretary of State Marco Rubio stated that

an order enjoining the tariffs “would cause significant

and irreparable harm to U.S. foreign policy and

national security” because negotiations with trading

partners are “in a delicate state.” Decl. of Marco Rubio

¶¶ 3, 9. “These negotiations could address the urgent

threats of mass migration at our northern and

southern borders, the flow of fentanyl into our country,

and the erosion of our domestic production capacity,”

id. ¶ 8, and constitute “one of the country’s top foreign

policy priorities.” Id. ¶ 10. According to Secretary

Rubio, “much of U.S. global diplomacy has been

focused on these negotiations.” Id. ¶ 10; see also Decl.

of Scott Bessent ¶ 9. Every ongoing negotiation is

“premised on the ability of the President to impose

tariffs under IEEPA.” Decl. of Marco Rubio ¶ 11.

The Cabinet officials claim that were a court to

enjoin the tariffs announced in the Challenged Orders,

42a

U.S. trading partners could retaliate against the

tariffs.; the U.S. would be embarrassed on the global

stage; and the U.S.’s manufacturing position may be

so weakened that the country may “not be able to

produce the weapons and other resources necessary to

defend itself.” Id. ¶¶ 12-14. These consequences go to

“critical” foreign policy and national security interests.

Id. ¶ 16; see also Decl. of Howard Lutnick ¶¶ 4-4

(describing that the national emergencies underlying

the Challenged Orders “threaten[] the lives of [U.S.]

citizens”). The Court agrees with Defendants that the

public has a compelling interest in the “President’s

conduct of foreign affairs and efforts to protect

national security.” See Defs.’ PI Opp’n at 41; see also

Winter, 555 U.S. at 24.

But on May 28, a three-judge panel of the CIT

issued an order permanently enjoining the IEEPA

tariffs. See Opinion, V.O.S. Selections, Inc. v. Trump,

No. 25-00066, at 48-49 (Ct. Int’l Trade May 28, 2025).

The consequences described by the government

officials in their declarations will flow, if at all, from

that court’s sweeping order. Under the circumstances,

enjoining the application of the Challenged Orders to

two family-owned toy companies will have virtually no

effect on the government. Contra Defs.’ PI Opp’n at

41-42 (arguing that “[P]laintiffs’ proposed injunction

would be an enormous intrusion on the President’s

conduct of foreign affairs and efforts to protect

national security under IEEPA and the Constitution”).

It will, however, protect those companies from

irreparable injury should the CIT order be stayed or

reversed. The Court concludes that the balance of

equities and the public interest therefore favor

43a

Plaintiffs. Besides, “[i]t is emphatically the province

and duty of the judicial department to say what the

law is.” Marbury v. Madison, 5 U.S. 137, 177 (1803)

(Marshall, C.J.). The President cannot act unlawfully

and then use the effects of having that action declared

unlawful as a putative shield from judicial review.

V. CONCLUSION

Because IEEPA is not a law providing for tariffs

and because Plaintiffs have satisfied the preliminary

injunction factors, Defendants’ motion to transfer

venue is DENIED; and Plaintiffs’ motion for a

preliminary injunction is GRANTED. The Court will

stay operation of the preliminary injunction for 14

days. An order consistent with this Memorandum

Opinion is separately and contemporaneously issued.

Dated: May 29, 2025

RUDOLPH CONTRERAS

United

States

District

Judge

44a

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

:

LEARNING

:

RESOURCES, INC., et :

al.,

:

:

Plaintiffs,

: Civil Action:

25-1248 (RC)

No.:

:

Re Document

v.

:

8, 9

Nos.:

DONALD J. TRUMP, et :

al.,

:

Defendants.

:

ORDER

GRANTING DEFENDANTS’ MOTION TO STAY

Upon consideration of Defendants’ motion to stay

(ECF No. 41) enforcement of the Court’s order entered

May 29, 2025 preliminarily enjoining the United

States from collecting tariffs from Plaintiffs pursuant

to Executive Orders 14,195; 14,228; 14,257; 14,259;

and 14,266 (ECF No. 35); it is hereby

ORDERED that Defendants’ motion is

GRANTED. In issuing the preliminary injunction, the

Court specifically referenced the related permanent

injunction granted by the Court of International

Trade. See Mem. Op. Denying Defs.’ Mot. Transfer

Venue; Granting Pls.’ Mot. for Prelim. Inj. at 32-33,

45a

ECF No. 37. The Court acknowledged the national

security and foreign policy concerns raised by

Defendants but determined that those consequences

would flow, if at all, from the CIT’s more sweeping

order. Id. That order has now been stayed by the

Court of Appeals for the Federal Circuit. A stay in this

action is therefore appropriate to protect the

President’s ability to identify and respond to threats

to the U.S. economy and national security; and it is

FURTHER ORDERED that the effects of this

Court’s order granting Plaintiffs’ motion for a

preliminary injunction (ECF No. 35) and the

accompanying memorandum opinion (ECF No. 37) are

hereby stayed pending disposition of the pending

appeal before the United States Court of Appeals for

the District of Columbia Circuit.

SO ORDERED.

Dated: June 3, 2025

RUDOLPH CONTRERAS

United

States

District

Judge

46a

United States Code Annotated

Title 50. War and National Defense

Chapter 35. International Emergency Economic

Powers

§ 1701. Unusual and extraordinary threat;

declaration of national emergency; exercise of

Presidential Authority

(a) Any authority granted to the President by section

1702 of this title may be exercised to deal with any

unusual and extraordinary threat, which has its

source in whole or substantial part outside the United

States, to the national security, foreign policy, or

economy of the United States, if the President declares

a national emergency with respect to such threat.

(b) The authorities granted to the President by section

1702 of this title may only be exercised to deal with an

unusual and extraordinary threat with respect to

which a national emergency has been declared for

purposes of this chapter and may not be exercised for

any other purpose. Any exercise of such authorities to

deal with any new threat shall be based on a new

declaration of national emergency which must be with

respect to such threat.

47a

United States Code Annotated

Title 50. War and National Defense

Chapter 35. International Emergency Economic

Powers

§ 1702. Presidential authorities

(a) In general

(1) At the times and to the extent specified in section

1701 of this title, the President may, under such

regulations as he may prescribe, by means of

instructions, licenses, or otherwise—

(A) investigate, regulate, or prohibit-(i) any transactions in foreign exchange,

(ii) transfers of credit or payments between, by,

through, or to any banking institution, to the

extent that such transfers or payments involve

any interest of any foreign country or a national

thereof,

(iii) the importing or exporting of currency or

securities,

by any person, or with respect to any property,

subject to the jurisdiction of the United States;

(B) investigate, block during the pendency of an

investigation, regulate, direct and compel, nullify,

void, prevent or prohibit, any acquisition, holding,

withholding,

use,

transfer,

withdrawal,

transportation, importation or exportation of, or

dealing in, or exercising any right, power, or privilege

with respect to, or transactions involving, any

property in which any foreign country or a national

48a

thereof has any interest by any person, or with respect

to any property, subject to the jurisdiction of the

United States; and. 1

(C) when the United States is engaged in armed

hostilities or has been attacked by a foreign country or

foreign nationals, confiscate any property, subject to

the jurisdiction of the United States, of any foreign

person, foreign organization, or foreign country that

he determines has planned, authorized, aided, or

engaged in such hostilities or attacks against the

United States; and all right, title, and interest in any

property so confiscated shall vest, when, as, and upon

the terms directed by the President, in such agency or

person as the President may designate from time to

time, and upon such terms and conditions as the

President may prescribe, such interest or property

shall be held, used, administered, liquidated, sold, or

otherwise dealt with in the interest of and for the

benefit of the United States, and such designated

agency or person may perform any and all acts

incident to the accomplishment or furtherance of these

purposes.

(2) In exercising the authorities granted by paragraph

(1), the President may require any person to keep a

full record of, and to furnish under oath, in the form of

reports or otherwise, complete information relative to

any act or transaction referred to in paragraph (1)

either before, during, or after the completion thereof,

or relative to any interest in foreign property, or

relative to any property in which any foreign country

or any national thereof has or has had any interest, or

1 So in original. The period probably should not appear.

49a

as may be otherwise necessary to enforce the

provisions of such paragraph. In any case in which a

report by a person could be required under this

paragraph, the President may require the production

of any books of account, records, contracts, letters,

memoranda, or other papers, in the custody or control

of such person.

(3) Compliance with any regulation, instruction, or

direction issued under this chapter shall to the extent

thereof be a full acquittance and discharge for all

purposes of the obligation of the person making the

same. No person shall be held liable in any court for

or with respect to anything done or omitted in good

faith in connection with the administration of, or

pursuant to and in reliance on, this chapter, or any

regulation, instruction, or direction issued under this

chapter.

(b) Exceptions to grant of authority

The authority granted to the President by this section

does not include the authority to regulate or prohibit,

directly or indirectly-(1) any postal, telegraphic, telephonic, or other

personal communication, which does not involve a

transfer of anything of value;

(2) donations, by persons subject to the jurisdiction

of the United States, of articles, such as food,

clothing, and medicine, intended to be used to

relieve human suffering, except to the extent that

the President determines that such donations (A)

would seriously impair his ability to deal with any

national emergency declared under section 1701 of

this title, (B) are in response to coercion against the

50a

proposed recipient or donor, or (C) would endanger

Armed Forces of the United States which are

engaged in hostilities or are in a situation where

imminent involvement in hostilities is clearly

indicated by the circumstances; or

(3) the importation from any country, or the

exportation to any country, whether commercial or

otherwise, regardless of format or medium of

transmission, of any information or informational

materials, including but not limited to, publications,

films, posters, phonograph records, photographs,

microfilms, microfiche, tapes, compact disks, CD

ROMs, artworks, and news wire feeds. The exports

exempted from regulation or prohibition by this

paragraph do not include those which are otherwise

controlled for export under section 46043 of this title,

or under section 46053 of this title to the extent that

such controls promote the nonproliferation or

antiterrorism policies of the United States, or with

respect to which acts are prohibited by chapter 37 of

Title 18;

(4) any transactions ordinarily incident to travel to

or from any country, including importation of

accompanied

baggage

for

personal

use,

maintenance within any country including payment

of living expenses and acquisition of goods or

services for personal use, and arrangement or

facilitation of such travel including nonscheduled

air, sea, or land voyages.

(c) Classified information.--In any judicial review

of a determination made under this section, if the

determination was based on classified information (as

defined in section 1(a) of the Classified Information

51a

Procedures Act) such information may be submitted to

the reviewing court ex parte and in camera. This

subsection does not confer or imply any right to

judicial review.

52a

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

LEARNING RESOURCES,

INC. and HAND2MIND, INC.,

Plaintiffs,

v.

DONALD J. TRUMP,

President of the United States,

in his official capacity; KRISTI

NOEM, Secretary of the

Department of Homeland

Security, in her official

capacity; U.S. DEPARTMENT

OF HOMELAND SECURITY;

SCOTT BESSENT, Secretary

of the Treasury, in his official

capacity; U.S. DEPARTMENT

OF THE TREASURY;

HOWARD LUTNICK,

Secretary of Commerce, in his

official capacity; UNITED

STATES DEPARTMENT OF

COMMERCE; PETE R.

FLORES, Acting

Commissioner of Customs &

Border Protection, in his

official capacity; U.S.

CUSTOMS & BORDER

PROTECTION; JAMIESON

GREER, U.S. Trade

Case

No.: 1:25-cv-01248

53a

Representative; and THE

OFFICE OF THE U.S. TRADE

REPRESENTATIVE,

Defendants.

DECLARATION OF RICHARD WOLDENBERG

IN SUPPORT OF PLAINTIFFS’ MOTION FOR A

PRELIMINARY INJUNCTION

I, Richard Woldenberg, declare as follows:

1.

My name is Richard Woldenberg, and I am

the CEO of Learning Resources, Inc. and hand2mind,

Inc. (collectively, “LR/h2m” or the “Companies”). I am

over the age of eighteen, have personal knowledge of

the subject matter, and am competent to testify

concerning the matters in this declaration.

2.

LR/h2m are part of a private, familyowned group of companies which develop, market, and

sell educational products, educational toys, and pet

toys. We market our products under brands such as

LEARNING

RESOURCES,

EDUCATIONAL

INSIGHTS, HAND2MIND and BRIGHTKINS.

Learning Resources and hand2mind are related legal

entities under common ownership, common control,

and common management with various corporate

functions managed as “shared services” for the benefit

of both companies. The Companies share more than

100 employees, including certain senior officers and

managers such as myself, share a single line of credit,

and operate with a common supply chain department.

3.

Our family business is now in its fourth

generation and dates back to a company purchased by

54a

my grandfather more than 100 years ago. LR/h2m is

a world leader in the development of experiential,

hands-on learning materials which are sold in more

than 100 countries. We have more than 500 U.S.

employees and full-time equivalents today. Our

products are developed in the United States, but we

outsource manufacturing to factories in other

countries, including (but not limited to) China,

Taiwan, Korea, Vietnam, Thailand, and India. We also

perform some of our manufacturing and assembly in

the United States. Our companies have offices around

the country: in Vernon Hills, Illinois; Torrance,

California; and Amherst, New York. We also have

employees that work remotely in other states. We ship

from our warehouses in Vernon Hills, Illinois.

4.

I am providing this declaration in support

of Plaintiffs’ motion to preliminarily enjoin and set

aside the implementation and enforcement of recent

Executive Orders that impose additional tariffs under

the International Emergency Economic Powers Act

(IEEPA) on goods imported from China, Taiwan,

Korea, Vietnam, Thailand, India, and other countries

from which we import.

5.

LR/h2m directly imports from these

countries, and both companies pay duties and tariffs

on imports directly. When we import, we purchase

and take title to the products in the foreign country

and thus own the merchandise at the time of

importation. Specifically, we manufacture toys and

other products in China, Taiwan, Korea, Vietnam,

Thailand, India, and other countries that we then

import into the U.S. and sell to brick-and-mortar

retailers, online marketplaces and web merchants,

55a

school suppliers and other resellers, schools, teachers,

and consumers. We also export our products to

customers in other countries.

6.

The scale of the IEEPA tariff burden is

unsustainable and threatens our ability to continue

those trade streams because we are not able to absorb

the additional tariff costs without changing our

pricing radically. Approximately 60% of the products

we sell or consume as components (by cost) are

manufactured in China, and “made-in-China”

products represent a similar percentage of our

revenue. The new 2025 tariffs are in addition to

Section 301 China tariffs in effect since 2018. With

the additional IEEPA China tariff of 10% effective

February 4, 2025, and 20% effective March 4, 2025,

and additional China universal 10% tariff effective

April 5th which was later replaced with a reciprocal

34% duty, subsequently increased to 84% (items

entered April 9th), and further increased to 125%

(items entered April 10th and onward), we are now

responsible to pay at least 145% duty and tariffs on all

products made in China, with certain products being

assessed total duties and tariffs of 170% or more

taking into account the additional 25% Section 301

China tariff plus general rate of duty, if applicable.

These rates are now so high as to effectively prevent

importation.

7.

The Companies have collectively already

paid over $1 million based on the new 2025 tariff rates,

with both Companies having paid the 10% and 20%

initial IEEPA tariffs on China as well as the initial

universal “reciprocal” tariff of 10%. Those shipments

left port before the increased 125% reciprocal tariff

56a

rate on China took effect. When that rate was

announced with only a few hours advanced notice, we

stopped as many shipments from China as possible to

avoid an unplanned extraordinary expense. However,

on such short notice, we were not able to stop 19

shipments for the benefit of both Learning Resources

and hand2mind arriving between April 24th and May

13th with more than 75% by value expected to be

assessed at the 145% combined tariff rate. We did

authorize one air shipment of a small amount of

product with an entry date of April 20th subject to the

145% combined tariff rate. The Companies are

currently evaluating how to manage the importation

(entry) of these pending shipments, but both

Companies have an intention to import at least some

items subject to the 145% tariff rate from these

shipments. We cannot presently estimate the tariff

cost each Company will actually incur but the total

estimated duties and tariffs on all of the merchandise

in those twenty shipments is greater than $1 million

and each Company expects to pay a portion of that

sum, which constitutes an extraordinary and

unplanned expense. For any merchandise within

these shipments that we decide to re-export in order to

avoid paying duties at a rate of at least 145%, we

expect to incur additional losses for transportation

charges to ship that merchandise away from the

United States and special handling and transaction

fees relating to these shipments.

8.

The tariff rates assessed on the countries

from which we source our products have been

changing frequently in 2025.

Inclusive of the

universal and reciprocal tariffs announced on April

57a

2nd, 8th, 9th and 10th, but before taking into account the

90-day “pause” in the collection of certain tariffs

announced on April 9th, which may affect a small

percentage of our products (but not those from China),

we currently believe that an “apples-apples” estimate

for 2025 duties and tariffs based on our 2025 full-year

budget (unadjusted for on-hand inventory or any

possible economic downturn) would be more than $100

million in cash expenditures, versus 2024 actuals of

$2.3 million in duties and tariffs paid. In other words,

given the ever-changing situation with the IEEPA

tariffs, considerable uncertainty about future

economic conditions and trade rules, and the as-yetunknown decisions we will make to survive under

these rapidly evolving conditions, I currently project

that we would experience an almost 44x year-overyear increase in duties and tariffs using our 2025 plan

as the base case. We currently estimate that more

than 95% of these tariffs would derive from products

made in China now, which is a tacit ban on

manufacturing in China in practical effect.

Additionally,

we

are

incurring

significant

unrecoverable costs and expenses, not to mention time

lost, dealing with ever-changing tariff rates and

massive disruptions in our supply chain, business

relations, and business operations.

9.

There is no way to fully offset the costs of

current tariffs through vendor concessions or expense

reduction—the number is too enormous and many

times our projected annual income. LR/h2m may be

forced to raise prices as much as 70% (or possibly

more) as a matter of pure survival. Some of our

customers with urgent programs requiring imports

58a

that cannot be delayed are already facing price

increases of more than 100%. This level of price

inflation is very destabilizing to our business relations

and frankly is terrifying.

10.

These tariffs will severely and irreparably

harm LR/h2m. Mid-year price increases from tariffs

are expected to cause a market shock and an

immediate and sustained decline in sales. As of April

21st, we have received cancellations and “stop

shipment” instructions for direct import orders

totaling more than $1 million because of the new

tariffs. We have been notified by certain customers

that they will not take any direct import shipments

from China so they can avoid paying the tariffs, which

places all financial risk on our companies. Customers

have also contacted us about their fears of future

shortages and price shocks and asked about our ability

to keep them supplied. We believe some customers

have moved up domestic orders with us to “grab”

inventory while they can. Due to the lag time between

the imposition of the tariffs and the pending gap in

replenishment shipments, we are projecting outages

beginning in a matter of weeks, which are traceable to

a halt in import shipments beginning on April 9th. For

a company built on high service, the prospect of a

looming sharp service decline is very threatening. At

present, there is little we can do to stop the stock

outage catastrophe from happening owing to supply

chain chaos, an incredibly burdensome and constantly

shifting tariff landscape, and a very high price to be

paid for incorrect logistical judgments.

11.

After the first tariffs were announced in

January, we pivoted from planning based on our 2025

59a

budget scenario of sales up 8%, to a scenario with sales

down 25%—and now believe the sales decline may be

as great as 40% or even 50% year-over-year. Following

the substantial tariff increases announced on products

from China between April 2 and April 10, 2025, we

effectively stopped importing nearly all of the roughly

2,400 products that we source from China. We expect

that the IEEPA tariffs on other countries will also

substantially harm our sales because of the same

factors.

12.

This is a shocking turn of events for our

companies, which have been growing faster than the

overall toy industry in the period 2019-2024. In other

words, I believe these tariffs have likely ended our

record of exceptional growth and replaced it with an

expectation of an imminent sharp decline in sales.

13.

To address the financial impact of the

sudden, unbudgeted and massive tariff cost and to

attempt to protect the market for our products, we

have been working to cut our operating expenses by

10% since January and will need to cut those expenses

even further because of the recently announced new

tariffs. Our cost cutting focus has been on cash

expenditures like advertising, CapEx, and hiring. We

have also considered reducing service levels (such as

by increasing delivery times) to lower costs, which

would intentionally degrade our operational

performance and hurt our brand reputation in a

market that expects fast delivery. We are scrambling

to do everything in our power to save jobs. Both

Companies have been named a Top Workplace by the

Chicago Tribune in each of the last five years — losing

our team would be a devastating loss.

60a

14.

Our companies cannot possibly absorb the

costs of these increased tariffs. By way of illustration

using our 2025 business plan, if we cut every expense

in our 2025 budget other than salary (i.e., all expenses,

including electricity, postage, health insurance

benefits and rent), we would still not be able to cover

the $100.2 million projected cost of the tariffs. Vendor

concessions will also be ineffective at making up a

meaningful portion of this loss. If we buy a product

from China for $10, new inventory will now cost not

less than $24.50 with tariffs before the costs of

transport. For the old cost of $10 to be preserved in

new inventory, the vendor would have to cut its price

to $4.08. Our vendors struggle to give us even a 10%

discount and they simply cannot give us a discount of

almost 60%.

15.

We have no realistic way to cover these

costs, which means the tariffs act as an immediate ban

on the products we import. We cannot even risk

putting our Chinese-made products on the water for

fear of paying 145% tariffs on arrival, which means we

are already suffering a major disruption in our

replenishment orders from China that grows more

urgent by the day. Even considering the very limited

positive impact of vendor concessions and expense

reductions, our only options to address this increase in

costs caused by increased tariffs are (a) to pass the

tariff cost to our customers in the form of much higher

prices for our goods or (b) reducing the costs by making

and selling cheaper, lower-quality products. Both

options would cause LR/h2m substantial harm.

Continuing to market goods subject to a 145% tariff is

infeasible because our dealers and consumers will

61a

never pay those prices. We cannot pass along tariffs

at rates like 46% (which was the country-specific

reciprocal tariff announced for Vietnam) or even 25%

(which was the country-specific reciprocal tariff

announced for South Korea) for fear of alienating

dealers and consumers who are ill-prepared for the

coming deluge of massive price increases. Reducing

quality is an unthinkable option for premium brands

like ours and is practically infeasible, as it would

require us to change the design and/or production of

more than 2,000 products at once. That process would

take years and cost millions of dollars out of pocket.

Alternatively, we must consider discontinuing the

import and sale of certain educational products

entirely in the U.S., and we have already been forced

to pause certain orders and shipments. It is completely

unrealistic to avoid the tariffs by shifting our supply

chain for more than 2,000 products, which would also

take years and cost millions of dollars that we cannot

spare. For a company built on a high-service model,

this erosion in our operating standards exposes our

brands to an uncertain future and the prospect of

declining sales and reputation as service levels

worsen.

Passing the tariff costs to our customers will

cause the Companies to lose profits, lose sales,

and damage their reputation.

16.

If LR/h2m attempts to pass along all, or

substantially all, of the cost of the tariffs to its

customers in the form of increased prices, we will sell

substantially fewer goods. This is because, when

LR/h2m materially increases the price of goods it sells,

consumers demand fewer of those goods. Consumers

62a

are price-sensitive and will not accept a massive price

increase on toys and educational products after the

current sustained period of modest inflation in the

United States. School accounts are already showing a

significant reluctance to order for back-to-school

because of funding uncertainty and limited budgets, a

factor certain to be exacerbated by large price

increases. Our dealer partners which resell our

products will be squeezed by a sudden price increase

and are highly likely to resist price changes

notwithstanding our urgent need to recoup these

expenses. I expect that, after massive price increases,

our dealers will drop, adjust, or reduce the product

ranges they offer to preserve their limited capital, thus

shrinking our market and increasing the risk that our

brands will be marginalized. We will also be exposed

to credit losses on receivables from our customers as

their businesses struggle in difficult conditions related

to the tariffs, too.

17.

It is notable that more than 10% of

LR/h2m’s revenue is derived from sales to customers

located outside the U.S., but a substantial volume of

orders is filled from our U.S. warehouses. Inventory

subject to the new tariffs will be completely

uncompetitive in the world market; we cannot bear an

extra tariff expense of 46% or 145% in our cost of goods

when competing against products not subject to those

costs in the international market. Certain tariffs

imposed against China pursuant to IEEPA are not

recoverable through duty drawback procedures, so our

foreign customers will need to pay those costs if we fill

orders with inventory which has entered the U.S.

Consequently, we are planning to avoid using U.S.

63a

inventory

or

U.S.

infrastructure

(logistics,

warehousing, labor) to service export orders, creating

a major loss of profit for the company. Sales to

customers located outside the U.S. will need to be

filled with inventory that never crosses a U.S. border

now. The expense of duplicating our infrastructure

and avoiding use of our efficient automated U.S.

facilities will lead to further losses. Although one of

the Administration’s stated goals was to bring

manufacturing back to the U.S., the tariffs actually

force our companies to avoid bringing certain

inventory into or using distribution facilities in the

U.S. to service our export customers. We believe this

change creates an opening for foreign competitors to

attack our market share and capitalize on a

competitive advantage springing from the new tariffs.

18.

I know that the tariff impact will be severe

because previous price disruptions have harmed the

Companies. Mid-year price changes are rare in our

business because they are received so negatively by

our dealers—they are always a last resort. We have

issued unscheduled price increases only a few times in

the last decade or so, and each time we faced customer

revolts.

We have seen examples of customers

reconfiguring their buys when dealing with limited

budgets. We have some customers who do not accept

price increases easily. We have experienced certain

key customers refusing to trade for weeks or months,

sometimes not replying to our emails or even calling

us back, because of price increases of less than 2%.

Obviously, we would need to increase prices by a much

greater amount than that in order to remain profitable

while incurring tariffs at 145%. Some customers have

64a

dropped products to resist pricing or to address

declining margins or sought substitutions from

competitors. In my experience, toy consumers are

particularly sensitive to price changes and will trim

their buying based on economic conditions and

prospects. While toys may be a “necessity” good, in the

past consumers have migrated to lower price toys

when money is tight as in inflationary periods or

during a recession.

19.

When customers demand fewer goods, it

lowers the Companies’ total profits. Based on my

experience, even if LR/h2m were to receive a

retroactive duty refund from the federal government

for the unlawful tariffs it had to remit, the lost profits

from decreased demand for its imported goods will

exceed that refund, leaving LR/h2m in a substantially

worse financial position than if the challenged tariffs

were never imposed. Given the massive scale of the

increase in duties and tariffs, the Companies may also

face a major cash squeeze. To meet holiday season

demand and to preserve our high-service model, we

must build up our inventory over a period of months

in advance. This creates a situation where we would

incur extraordinarily large duty and tariff expenses on

imports months before we expect to sell the inventory

to recoup those expenses. We pay our bills (such as

import duties and tariffs) by borrowing under our

revolving line of credit, and we repay our line of credit

from receivables collected later from our customers.

The cash-to-cash cycle of our business can be six

months or longer and the huge new tariffs may lead to

far greater peaks in our loan balances. Rising loan

balances will raise our interest costs and could make

65a

obtaining financing much more difficult.

The

Companies’ ability to renegotiate its line of credit

cannot be evaluated because of the unique

circumstances of the new tariffs and the resulting

economic uncertainty.

20.

Separately, if LR/h2m raises prices on

goods to pass along the cost of the challenged tariffs, it

will harm the goodwill and brand reputation that it

has built with its dealers, schools, teachers, and

consumers over decades. Our brands are considered

“premium” brands with a strong reputation for

excellent quality, content, and value pricing. Since our

products are intended as educational tools, we have

always priced our products to be good values and

accessible to all children and all families. Sharply

higher prices would be perceived as a breach of our

brand promise by many consumers. Some customers

may stop purchasing from LR/h2m in favor of

substitutes or alternatives if our prices rise suddenly

or if we stop selling cherished products. Even if the

challenged tariffs are ultimately declared unlawful,

customers who have already left may not return to buy

from the Companies.

21.

Because of the tariffs, we have already had

to cancel shipments and delay production in China. At

present tariff rates, I cannot foresee bringing in more

product from China because the cost is now

prohibitive. Our company depends on Christmas sales

to survive. We do not have enough on-hand inventory

to carry us through the holiday season unscathed and

are already projecting stock outages beginning in a

matter of just weeks. Without the practical ability to

restock our goods made in China this year or instantly

66a

go into production on hundreds or thousands of

products at competitive prices elsewhere, our

Christmas season will likely be significantly impaired

or possibly even ruined, leading to spectacular losses.

Since the Christmas season is a time of celebration for

the American public, it is foreseeable that Christmas

will be ruined for many families and countless

children, too, and of course, we are not alone in having

this problem. Empty store shelves at Christmas time

mean economic disaster for everyone, retailers and

suppliers both, and for our economy.

Off-setting increased costs from the challenged

tariffs by using cheaper alternatives will harm

the Companies’ profits, sales, and brand

reputation, and there is no available domestic

“reshoring” manufacturing option.

22.

To fully offset the increased costs caused

by the tariffs, I have considered whether LR/h2m

could reduce quality, eliminate product features or sell

products with fewer components.

These lessexpensive alternatives, however, would substantially

harm LR/h2m’s reputation because the quality of the

products would disappoint our customers and breach

the brand promise. Lower quality products will result

in fewer sales as well as substantial harm to customer

goodwill and to our corporate reputation.

Our

industry is subject to strict regulation for toy safety, so

in many cases, a downgrade in product quality is not

even an option. In any event, we have no practical

ability to redesign our many products overnight and

relocate production to destinations unknown without

it taking years and costing millions of dollars.

67a

23.

I am absolutely certain that LR/h2m

cannot source or manufacture its products

domestically as a practical matter. Despite strong

market and financial incentives to find local

manufacturing for our products, our resourcing efforts

to date (over several years) have failed to yield even

one qualified and willing U.S. vendor capable of

making our non-print products. There are many

reasons for this: (a) our products are typically made in

short runs (production runs of small quantities or

durations of only a few days), which is too inefficient

for U.S. manufacturers operating in expensive

facilities using scarce, high-priced labor; (b) our

products typically require assembly and complex

packaging, which is very labor-intensive (again, labor

is expensive and in short supply); (c) we require a very

high finish and many of our products require many

different manufacturing functions that are not often

found in the United States; (d) the U.S. market is illequipped to make our thousands of different products

requiring specialized facilities, equipment, and

fixtures; and (e) a geographically concentrated

manufacturing hub does not exist to serve the myriad

needs and inputs required for efficient manufacturing

of our products in the U.S. Despite our years-long

experience with sophisticated operational software

systems and automated material handling equipment

(including warehouse robots), we have searched for

and failed to identify any viable automation or

technology option to solve the cost problem posed by

domestic manufacturing. T here is simply no

manufacturing market anywhere that can replace

China for everyone all at once—at least without years

of advance notice. Consequently, the effects of the

68a

tariffs on global supply chains will devastate small

and medium-sized businesses like ours.

24.

Our Companies have for several years

investigated and invested in frontier manufacturing

markets to reduce our dependence on our Chinese

supply chain. After a lot of effort and roughly $2

million in out-of-pocket costs, we have only been able

to move or resource about 16% of our manufacturing

from China to other countries (principally, India or

Vietnam). The challenges in moving items out of

China are myriad: (a) costs are often higher and labor

is in short supply; (b) factories have limited capacity

and limited manufacturing experience suited to U.S.

market needs; (c) factory quality control is often

unsophisticated; (d) timelines are often unreliable; (e)

critical components may not be available locally or be

of unacceptable quality; (f) production is often slow

and inefficient, including mold making; (g) certain

critical skills may be missing; (h) commitment to

cleanliness or other measures of modern factory

management may be missing or inadequate; (i) ethical

manufacturing standards imposed by our industry

require extra surveillance in frontier markets; and (j)

experience dealing with key retailers like Walmart

and Target may be limited or required certifications

have not been obtained. Training new factories to

meet the needs and expectations of the U.S. market

takes a long time, often years. There is no welldeveloped, high capacity, high caliber manufacturing

hub anywhere standing idle waiting to make our many

products. Moreover, even if we were able to switch our

sourcing to countries other than China, the President

has imposed IEEPA tariffs on almost every other

69a

country. We therefore would not only incur millions of

dollars in expenses to shift our production, but we

would still face millions more in duty and tariff costs

than we experienced previously, even if we could find

alternative suppliers in other countries.

25.

It is also worth noting that the process of

resourcing from China to other markets can have the

effect of destabilizing our Chinese supply chain, which

is very dangerous and threatening to our business. We

must be very methodical and careful in shifting our

production while at the same time preserving the

financial health of our factories. It’s a delicate process.

Triggering a bankruptcy by a key supplier would be

financially devastating to our companies, not to

mention a catastrophic organizational failure as these

factories are often close friends and longtime allies of

our companies.

26.

We are also expecting to face massive

downstream cost increases because of the tariffs. For

instance, we source many low volume Chinese-made

products from domestic suppliers focused on other

markets (such as paper products supply or food service

supply) for use in school science kits. We don’t

consume enough of these components to tool up and

import them directly. We are therefore dependent on

the domestic distributors to manage the tariff costs.

Those items are facing price hikes reflecting the

current 145% tariffs on Chinese goods. Because we

are not the importer for these products, even if the

tariffs are eventually set aside and importers are

provided refunds, we will not be the recipient of

refunds for these products. Our ability to meet

strained school budgets with much more expensive

70a

basic supplies is limited. It is entirely possible that

some basic school supplies will cease to be available on

the U.S. market.

27.

Other anticipated negative consequences

for our Companies directly traceable to the tariffs

include: (a) potential widespread job losses if we are

unable to make a profit with a transformed business

model; (b) an impaired ability to plan and run our

business efficiently in an ever-changing environment

of oscillating tariffs and changing terms for

international trade; (c) a destabilized manufacturing

base may force many suppliers into bankruptcy

leaving us without critical suppliers or essential

manufacturing capacity for a long period of time,

thereby triggering further losses; (d) a synchronized

bankruptcy crisis faced by many factories

simultaneously may cause a “rush for the door” by U.S.

importers, leading to manufacturing gridlock lasting

years because of the limited ability of alternative

markets to absorb the new demand; (e) mounting port

congestion resulting from orders cancelled over tariffs

could lead to a major spike in ocean freight rates as

happened in the pandemic; (f) a combination of these

problems could lead to a chain reaction that cannot be

stopped causing massive economic damage that

cannot be recouped or addressed for many years (such

as synchronized bankruptcies of many factories and

their U.S. importer customers at the same time); (g)

supply chain disruptions could lead to massive

business interruption claims on insurance policies and

widespread defaults under lines of credit issued by

American banks; (h) relief from tariffs may never come

from much-hyped rising domestic manufacturing

71a

(reshoring) if companies fear that the tariff regime

might later be reversed thereby rendering their big

reshoring investments obsolete; (i) capital destruction

from extraordinary expenses and loss of business is

likely permanent and not recoverable; and (j) foreign

markets may reduce access to products or services sold

by American companies, whether made in the U.S. or

not, leading to further business contraction and profit

loss.

The Companies cannot absorb the tariffs

pending the outcome of this litigation and a

subsequent refund action.

28.

It is not an option for LR/h2m to sell

manufactured goods to its customers at the same price

prevailing before the challenged tariffs. If LR/h2m

were to maintain its prices, then it would quickly be

unable to service its bank debt and mortgages and fall

into default. The Companies cannot absorb losses

during the pendency of this litigation and will be

forced to take drastic steps like: sharply raising prices

and sharply reducing spending; refinancing loans on

unfavorable terms; significantly scaling back

operations and product offerings; closing facilities;

laying off employees; or even selling the company after

more than 100 years of family ownership. These are

all enormously harmful to the Companies’ long-term

financial and corporate health—indeed, its very

existence. We are trying to avoid as many of these

measures as possible for as long as possible, but each

day that the tariffs remain in place is causing further

irreparable harm to the Companies and brings us

closer to having to adopt such drastic measures. If

tariffs are kept at current levels without relief, we face

72a

an increasingly grim future, like all other similarly

situated small and medium-sized companies who

depend on foreign manufacturing hubs.

***

29.

If Plaintiffs obtain a preliminary

injunction against collection of the IEEPA tariffs, then

these irreparable harms will not occur.

I, Richard Woldenberg, declare under penalty of

perjury under the laws of the United States that the

foregoing is true and correct to the best of my

knowledge.

Dated: April 24, 2025.

/s/ Richard Woldenberg

Richard Woldenberg

73a

[1](Caption)

[2](In open court; case called)

THE COURT: Good afternoon.

All right. There’s been a lot of paper filed in this

court and others, and I’ve read everything. So don’t

feel you have to repeat everything that’s in the

papers—I’ve read it all—but make the strongest

points you think I need to get reinforced and I’ll rule

as promptly as possible.

So it’s the plaintiffs’ motion. So why don’t you go

first.

MR. SHAH: Thank you, Your Honor.

If I may start, maybe, with a procedural point to

kick things off, the Court has before it, as you know,

two motions: one on jurisdiction and one on the merits

that ultimately rise and fall together on an

overlapping [3] question. That question is whether

IEEPA is a law providing for tariffs. That is a pure

legal question and, as briefing has confirmed here and

in the other cases, there are no material disputes of

fact. Indeed, all have agreed in those parallel CIT

cases to treat the preliminary injunction motions as

summary judgment motions, and this Court can do the

same here to resolve the merits in a final judgment

under Rule 65(a)(2). If this Court agrees that IEEPA

does not authorize the president to levy tariffs,

including the unprecedented revamping of our

nation’s global tariff policy in the challenged executive

orders at issue, then this Court should deny transfer

and grant judgment on that dispositive basis and it

doesn’t have to reach the secondary arguments.

74a

Now, as to

Government asks—

jurisdiction

specifically,

the

THE COURT: Mr. Shah, can you slow down just

a little. I suspect, at some point along the line,

someone else will look at this transcript and I think it

should be as clear as possible.

MR. SHAH: Sure. Of course.

As to jurisdiction, the Government asks this

Court to punt to the CIT, which has never exercised

jurisdiction over an IEEPA case until now, rather than

fulfill its unflagging obligation to determine its own

jurisdiction. In doing so, the Government avoids the

text of CIT’s [4] jurisdictional statute which confers

exclusive jurisdiction over cases, quote, “arising out of

laws providing for tariffs or for the administration and

enforcement of tariffs.” Because this action arises out

of IEEPA—that is the law—jurisdiction here turns on

whether IEEPA provides for tariffs. The answer to

that question is no. The Constitution confers tariffing

power exclusively on Congress, and IEEPA’s statutory

text both on its face and in context doesn’t delegate

that power to the president to wield as he sees fit.

Indeed, every other time Congress has delegated tariff

authority, as the numerous statutes and Title 19 show,

it has done so in more explicit terms with explicit

limitations and explicit safeguards, not using the

generic and distinct term “regulate.” Presumably,

that is why no president had ever invoked IEEPA or

even the preceding TWEA statute to impose tariffs.

The Government relies on President Nixon’s 1971

proclamation, but even he never invoked TWEA.

Instead, he actually invoked two tariff-specific

statutes. Yoshida—the appellate decision in Yoshida,

75a

which was wrong then as to TWEA and is certainly

wrong now as to IEEPA, cannot salvage the

Government’s position.

And if I can take a moment to take a step back,

because I think, essentially, on the statutory text

point, this is going to come down to whether you think

the phrase [5] “regulate imports” in IEEPA

encompasses the tariff power. And I think, to help

answer that question, it’s helpful to start with the

constitutional structure, history, and text which, I

think, will inform and show that the taxing power is a

distinct power such that Congress has to speak with

some measure of clarity before delegating it, and I

think a good place to start is the text of the

Constitution which separates out the power to levy,

impose duties. That’s in Article I, Section 8, Clause 1.

It separates that out from the power to regulate

foreign commerce which is in Article I, Section 8,

Clause 3.

All three branches have taken that

distinction seriously.

Just to start with the Supreme Court in

Gibbons—this is just a few decades after the

framing—Chief Justice Marshall, this is what he

wrote: “We must first determine whether the act of

laying duties or imposts on imports or exports is

considered in the Constitution as a branch of the

taxing power or the power to regulate commerce. We

think it is very clear that it is considered as a branch

of the taxing power.”

“In a separate clause of the enumeration, the

power to regulate commerce is given, as being entirely

distinct from the right to levy taxes and imposts and

as being a new power, not before conferred. The

76a

Constitution, then, considers these powers as

substantive, and distinct [6] from each other, and so

places them in” enumeration in different clauses.

That’s the Supreme Court speaking, again, a few

decades after the framing.

Then we have Congress, the second branch,

coming in. Every single time it has sought to

implement that Article I, Section 8, Clause 1 power to

impose tariffs, it has done through—through specific

languages referencing taxes, duties, customs, tariffs,

and the like. That’s every single statute that does it

in Title 19, including the Trade Act of 1974 which

came shortly after President Nixon’s invocation—not

his invocation—but his proclamation invoking other

tariff statutes. And, as a juxtaposition of that, every

time Congress has done—delegated the tariff

authority, it’s made it explicit. In contrast, when it’s

used the word “regulate” in statutes, and also,

intended to give the taxing power, it has said both

terms. It says “regulate and tax” or “regulate and

impose duties,” and we’ve cited those statutes on

Pages 4 and 5 of our reply brief on the preliminary

injunction motion. To date, the Government has still

not cited a single statute in the history of the United

States Code where “regulate” has—standing alone,

has been construed to levy tariffs except for the outlier

Yoshida decision. So that’s the second branch.

[7] The third branch, the president.

The

president, in the history of this country, under either

TWEA or IEEPA, has never invoked that language to

impose tariffs. It has never done it; right? President

Nixon didn’t do it, and certainly no president since

IEEPA was passed 50 years ago. Eight presidential

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administrations—four from each party—no one has

ever invoked it until now to impose tariffs.

So you have all three branches taking seriously

the Constitution’s distinction between “regulate”

foreign commerce and “impose tariffs and taxes.”

Now, with that backdrop, we can turn to the actual

text of IEEPA. And if we look at IEEPA, Section 1702,

it has a bunch of terms in there; right? It uses a lot of

verbs. The verbs are “prohibit,” “prevent,” “nullify,”

and “void”; right? All of those speak to essentially

cutting off or banning all transactions with a foreign

entity. Under the noscitur canon, typical statutory

construction, you interpret other terms in a phrase

along—in a common way with those terms that I just

mentioned. So when you’re construing “regulate” in

light of “prohibit,” “prevent,” “nullify,” and “void,” none

of which have anything to do with raising revenue or

collecting money, it’s sensible to construe “regulate” in

its literal meaning; that is, to restrict the flow, to

regulate the flow of commerce, to limit it short of a ban

[8] which gives it independent context.

That

definition—that natural construction is actually

consistent with the history. If you look at that first

Yoshida decision which the three-judge customs court

issued, it actually goes through extensive history on

what the term “regulate” means, and throughout the

history of TWEA—and this has continued under

IEEPA—the primary mode of regulation that

presidents have used short of the banning of

transactions is through licensing restrictions; right?

And there’s a whole export administration regulation

that we cite in our brief. And, again, the Yoshida 1

does an extensive look at the history. That is what

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“regulate” means there, restrict the flow of, typically

through licensing. Never before has it ever been used

to mean “taxing” or “tariffing” which, for all the

reasons I talked about before, is completely different

in kind.

The other textual point I would make, Your

Honor—and this one is actually made in the

congressional amicus brief that was filed in the

Oregon CIT case. It wasn’t filed in our case because

briefing had already closed, but it’s on Page 24 of that

brief and it’s at peace with the arguments I’m making.

What it points out is Section 1702 says “regulate

importation or exportation,” but we know from the

Constitution, Article I, Section 9, Clause 5, that it’s

unconstitutional to tariff exports. “Regulate” [9] has

to have the same meaning with respect to importation

or exportation in 1702. So if it can’t mean tariffing

exports because we know the Constitution prohibits

that, it doesn’t make sense to construe the term to

mean tariffing power there. Under the canon of

constitutional avoidance, one would construe it in a

way that gives full effect to the term and not assume

that Congress delegated an unconstitutional power to

the president.

So for all of those textual reasons, consistent with

the constitutional history and all three branches, you

should not interpret lightly “regulate” to encompass

the tariff power. I haven’t even gotten to the major

questions doctrine. I don’t think you need to rely on it.

THE COURT: Tell me, again, where that amicus

brief by a Congress—

MR. SHAH: Yes.

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THE COURT:—that has that argument in it—

MR. SHAH: It—

THE COURT:—exists.

MR. SHAH: Right. It’s on Page 24 of the

congressional members’ amicus brief, and that was

filed in the Oregon case in the CIT docket.

THE COURT: Okay.

MR. SHAH: And, again, so all of that—I haven’t

even mentioned major questions doctrine yet because

I think [10] this can be decided on straightforward

statutory interpretation for all the reasons I’ve said,

but whether you want to view this as a major

questions case or just ordinary statute interpretation,

the Supreme Court—the modern Supreme Court—has

been very clear that it is cautioning courts before you

assume vast delegations of significant Article I

powers. That should be especially true for something

as special as the tariffing and taxing power. The

Government tries to argue, “But, hey, here, we’re in a

foreign affairs/national security context. You should

ignore ‘major questions.’ You should assume Congress

is delegating.” But this is not an Article II power. The

tariffing and taxing power is dedicated Article I power.

If anything, it should be stronger with respect to that

power.

If you adopted the Government’s construction

such that “regulate,” “importation,” and “exportation”

here included the tariff power, that would also tend to

swallow the very carefully reticulated regime that

Congress has done in all those other statutes: 201,

301, 232, 122, 338. All of those statutes that appear in

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Title 19, you wouldn’t—you could set aside all of those

limitations and procedures because the president, in

declaring any national emergency—which the

Government says is non-reviewable—can do any of the

tariff actions it wants.

And, remember, the

Government says on Page 20 of its opposition brief to

[11] the preliminary injunction there are no textual

limits on the rate of tariffs, on the number of countries

to—it can be imposed upon, upon the duration of the

tariffs. No limit. So that also runs into non-delegation

concerns. The major questions doctrine also has a

flavor of non-delegation. So again, all of those things

reinforce what, I think, is the plain-text construction

here of “regulate” in light of all of that constitutional

history.

The last argument I’ll affirmatively make—and,

obviously, I want to answer your questions, Your

Honor—is the Government relies on this notion of

ratification: “Well, Congress passed IEEPA after

Yoshida was decided and it didn’t change the operative

language, and so it must have meant to afford tariff

power.” That is way too thin of a reed to overcome all

of those statutory principles. The Supreme Court has

said over and over again that ratification is about as

weak a reed as you have in interpretation. Most

recently in the BP case at 593 U.S. 230, it says when

you’re not dealing with settled precedent—settled

Supreme Court precedent or at least a uniform settled

body of lower court precedent, you should not assume

that Congress is adopting a lower court interpretation.

That is doubly true here where you have the Trade Act

of 1974—that same Congress passed the Trade Act of

1974 just before IEEPA, and that Trade Act of 1974

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goes directly to the issue in Yoshida. It passed [12]

Section 122 which put caps, limits on the balance-ofpayment-type tariffs that you could do in response to

the situation in Yoshida. And you even have Footnote

33 in the Yoshida opinion that the Government relies

on. Footnote 33 says, “Look, after the tariff”—“after

the Trade Act of 1974, we’re not exactly sure what’s

going on here,” and it says, “We’re not going to opine

on whether the president still has this sort of tariff

authority, given that Congress has parceled it off”;

right? So even Yoshida—the out-of-Circuit, 50-yearold precedent that conflicted with the three-judge

panel opinion that found no tariffing authority—even

if you read that, Footnote 33 suggests that it’s not

going all the way in light of the Trade Act of 1974.

So I think when you look at all of those signals

and you look at the history of how we got here under

IEEPA, how every presidential administration in our

nation’s history has interpreted it, how the founders

have interpreted it, how the Supreme Court, Congress

has, I don’t think there is a way, certainly, under

modern Supreme Court jurisprudence that you should

read the general delegation of regulatory authority to

contain the specific authority to impose tariffs.

THE COURT: All right. In your brief, you asked

that I collapse the merits and the PI standard and rule

on [13] the merits. And you, I believe, said that I can

ignore irreparable harm in that context. I’m not sure

that’s right.

MR. SHAH: Yeah. It—so yeah. Let me amend

that. So on the—I think it largely falls away because

we’re not asking for a nationwide injunction here. So

if you were to rule on the merits and agree with us that

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IEEPA does not authorize tariffs, right, that would—

that’s a pure legal question. That would, obviously,

allow you to enter judgment in our favor on that

ground. T hen the question is, what relief do you have

besides a declaratory judgment? All we’re seeking is

an injunction against the tariffs to be collected against

our client. I’m not aware of any case in the history

where a court has found final judgment that an order

or law is unlawful and not accorded relief to at least

the party bringing it. I think where that—and there

shouldn’t be any question that the irreparable harm

that our client is suffering compared to the

Government’s ability simply not to collect from that

one entity would somehow weigh in the Government’s

favor. So I think you do technically have to consider

the irreparable harm, but it should be about the

easiest balancing that you’ve ever done because it

would be in the final judgment context.

What I take from the declarations that the [14]

Government just submitted this morning from various

cabinet officials is what they say is an adverse ruling

would have adverse impacts. Well, that’s a question of

law that this Court has to decide one way or another.

The fact that you would order them not to collect the

tariffs from my one client isn’t going to cause any great

harm to the government. It’s a pure legal question. So

I think, on that question, you can enter final judgment,

summary judgment, and then simply enjoin the

collection of tariffs against our client. That’s all we’re

asking for, and I think there’s ample basis to do that

here.

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THE COURT:

All right. I know those

declarations were filed this morning. So is there

anything else you wanted to say in response to those?

MR. SHAH: Yeah. I mean, what I would say is—

I mean, you just read them, you know? Ostensibly,

they were filed about the preliminary injunction, but

the declarations are much broader. I mean, here’s

what it says. This is Paragraph 3 from the Rubio

declaration: “A ruling for the plaintiffs in this case

would cause significant and irreparable harm to U.S.

foreign policy and national security.” Well, a ruling in

this case is going to turn on pure legal question of

whether IEEPA provides for tariffs. If it doesn’t

lawfully provide for tariffs, this Court has to hold that.

We—the fact that the president invoked an [15]

unlawful and illegal basis to do it can’t be a shield

against any consequences that flow from an Article III

court declaring it unlawful. In fact, during the CIT

hearing last week, counsel for the Government said

the one issue that the Court can clearly resolve is the

pure question of law of whether IEEPA authorizes

tariffs. They said everything else is off the table. It’s

a political question. I’m only asking you to decide that

one legal issue. So this—

THE COURT: Which I have to do anyway to

determine venue.

MR. SHAH:

That’s right.

To determine

jurisdiction, because it is overlapping, you do have to

do it. And, maybe, I’ll add just one thing on that. I

think the Government’s argument on that is that you

don’t have to decide jurisdiction. You could just send

it to the CIT. That contradicts a mountain of Supreme

Court and D.C. Circuit precedent that says this court

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has to decide its own jurisdiction, and then the

Government falls back on the point that says, “Well,

when it’s arguably within the jurisdiction of a court

with exclusive jurisdiction, then you should punt,” but

we have a Supreme Court case on point, K Mart, which

is a case that both sides discuss. That was exactly

what happened there. The CIT and the Federal

Circuit said, “Exclusive jurisdiction”—that was a

different statute, not IEEPA—said, “Exclusive

jurisdiction [16] in the CIT.” This court and the D.C.

Circuit said, “No, jurisdiction in this court,” and the

Supreme Court granted cert because of the conflict.

That’s how we get Circuit conflicts. Federal Circuit

said, “Exclusive jurisdiction in CIT”; D.C. Circuit said,

“Jurisdiction in this court”; and the Supreme Court

sided in favor of jurisdiction in this court. It said, “We

accept the D.C. Circuit’s finding over the Federal

Circuit’s finding”. There, in fact, was not exclusive

jurisdiction. That was Section 526(a) of a trade act.

Different issue.

But under 1581(i), the same

jurisdictional provision that we’re talking about.

So I think K Mart defeats any notion that this

court should not do its own work and decide its own

jurisdiction. So I think you’re exactly right, Your

Honor. You do have to decide the question of whether

IEEPA authorizes tariffs both for jurisdiction—and I

think that’s the only question you need to decide on

the merits, because if you conclude—hopefully, you

don’t—if you do conclude that it does provide for

tariffs, then, obviously, there’s no jurisdiction and this

case should be dismissed, but if you conclude that it

does not provide for tariffs, well, then that means

there’s both jurisdiction in this court and you can enter

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final judgment on that basis, because nobody here

contends—everyone contends that if [17] IEEPA does

not authorize tariffs, the Government loses.

THE COURT: All right. I think those are all my

questions for now.

MR. SHAH: Thank you, Your Honor.

THE COURT: Mr. Shumate?

MR. SHUMATE: May it please the Court.

The president acted well within his authority

under IEEPA when he imposed these tariffs, but the

Court need not decide that merits question to grant

the Government’s transfer motion. Instead, the Court

should defer to the Court of International Trade which

has exclusive jurisdiction over this case, is actively

considering multiple challenges to the president’s

IEEPA tariffs, and has already denied an importer’s

request for a TRO based on a lack of irreparable harm.

If the Court were to conclude otherwise, granting an

injunction would kneecap the president on the world

stage, cripple his ability to negotiate trade deals, and

imperil the government’s ability to respond to these

and future national emergencies.

As the four

secretaries explain in their declarations, granting any

form of relief against the president’s IEEPA tariffs

would be catastrophic for our national security and

foreign policy.

THE COURT: Even declaratory relief?

MR. SHUMATE: Well, they’ve asked for an [18]

injunction. And, again, I think we’ve been clear in our

notice. We’ve only asked the Court to consider the

declarations for purposes of the balance of the equities.

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Going to irreparable harm, that’s a point I’d like to

address today.

But to avoid these types of catastrophic harms to

the government, I’d like to emphasize three points, if I

may. First, the Court should transfer the case because

the CIT has exclusive jurisdiction. Second, even if you

retain jurisdiction, the Court should deny the PI

motion because the plaintiffs have failed to

demonstrate irreparable harm. And, third, even if the

Court reaches the merits—and the Court need not do

so—IEEPA authorizes these tariffs.

If I may, let me first turn to jurisdiction and

explain why the Court should transfer the case.

Multiple courts, as the Court knows, have already

concluded that the CIT has exclusive jurisdiction to

consider challenges to the president’s IEEPA tariffs.

The CIT has already reached that conclusion in the

Barnes case, the Montana district court in Webber, the

Florida district court in Emily Ley, and the CIT threejudge panel last week stated on the record that they

believe they have jurisdiction and they’re considering

the merits of the tariffs.

Now, plaintiffs have tried to cleverly bait the

Court into reaching the merits by conflating both [19]

jurisdiction and the merits, but you don’t need to

decide the merits to decide your jurisdiction. The D.C.

Circuit’s approach is to defer to the CIT’s assessment

of its own jurisdiction. Cases like SMC [ph], Miami

Free Zone, Furniture Brands [ph], Henry Pollak, even

when there’s a close question about jurisdiction, the

D.C. Circuit and district courts in this Circuit have

said, “We defer to the CIT. They’re the experts.”

Otherwise, it would destroy the entire exclusivity

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regime that Congress set up if multiple district courts

reached their own conclusions on both jurisdiction and

the merits. Instead, the appropriate course is to defer

to the CIT, and there’s no doubt what the CIT will

conclude. The CIT, in Barnes, has already concluded

that they have jurisdiction. The plaintiffs here will not

be without a forum in which to press their arguments.

They can press their arguments in the CIT, as many

other importers are doing.

I think Webber and Barnes are the best example

of how the Court can address the jurisdictional

question without even touching the merits of whether

IEEPA authorizes these tariffs. The CIT, in Barnes,

again, said it has jurisdiction to review the tariffs.

And the Yoshida case is binding precedent in the

Federal Circuit on the CIT. It concluded that the

precise language that the president relied on in IEEPA

from the predecessor statute—the [20] Trading With

the Enemy Act—regulate importation, authorizes

tariffs. On that basis, the president relied on IEEPA.

The CIT has exclusive jurisdiction to determine

whether that statute authorizes the tariffs. I think the

fundamental problem that the plaintiffs have with

their argument is that they are interpreting the

phrase “providing for” to mean “statutorily authorized

by.” That’s not what the statute says. The statute

says “provided by”—or “providing for,” and in K Mart

the Supreme Court says that phrase means “related

to.” And there is no doubt that the IEEPA is a law

relating to tariffs. The president has relied on that

statute to promulgate these tariffs; therefore, IEEPA

provides for these tariffs regardless of whether or not

IEEPA statutorily authorizes the tariffs. That’s a

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question that the CIT can address. The Court need

not address that merits question to conclude that this

is a law related to tariffs and the CIT is the one that

decides whether or not these tariffs are lawful.

Even if you have any doubt about IEEPA, there’s

also the harmonized tariff schedule which comes from

a statute. It’s 20—19 U.S.C. 2483. The IEEPA tariffs

modify the harmonized tariff schedule. That’s a big

thick book that lists all the tariffs that importers have

to pay when they import their goods. At a minimum,

the harmonized tariff schedule is a law providing for

tariffs, and that is [21] something that the CIT panel

focused on at the hearing last week that provides for

their jurisdiction.

And even if you have any doubts about any of

that, we’ve also relied on 1581(i)(A)(1)(D) [sic] which

provides for jurisdiction in the CIT for the

administration

and

enforcement

of

tariffs.

Undoubtedly, this is a matter that involves the

administration and enforcement of tariffs. Again, the

IEEPA tariffs modify the harmonized tariff schedule;

therefore, the CIT has exclusive jurisdiction to

consider whether the tariffs are valid.

And if the Court otherwise were to accept

jurisdiction, I think there are two fundamental

problems. Number one, you could potentially create a

conflict with the CIT on both its jurisdiction on the—

and on the merits which would be contrary to exactly

what both the Constitution sets up, which is a scheme

of uniformity with respect to tariffs and duties, and

Congress’s desire to give the CIT exclusive jurisdiction

over tariff matters. And, second, I think it’s very likely

that the court would be flooded with potentially

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thousands of other importers filing tariff lawsuits in

this court. That’s what happened in the 301 tariff

cases which initially there was one case in the CIT

challenging the 301 tariffs. Eventually, there were

over 4,000 tariff cases. So if the Court accepts

jurisdiction in this case, given that national venue is

[22] proper in this court, I think it’s very likely you

would see a flood of other importers file in this court

for the very reason I think the plaintiffs filed in this

court which is to avoid the controlling precedent in the

Federal Circuit which is the Yoshida precedent.

The second point I’d like to cover, Your Honor, is

the preliminary injunction and lack of irreparable

harm. So even if you—

THE COURT: Before we get to that point—

MR. SHUMATE: Sure.

THE COURT:—what is your position in response

to the plaintiffs’ request that I collapse the merits and

the PI?

MR. SHUMATE: We object to that, Your Honor.

They had moved for a preliminary injunction. They

have to show irreparable harm. Under Rule 65, the

defendants are entitled to notice if the Court’s going to

convert the motion into a final judgment. We haven’t

had that notice. We would have had more time to brief

the case if this were not a PI motion. We would have

developed our arguments further. We may have built

the record out even further. And I would just say even

if the plaintiffs—I commend them for not seeking a

nationwide injunction, but they are still seeking

injunctive relief. Whether at the PI stage or at the

permanent stage, they still have to demonstrate [23]

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irreparable harm, and they can’t make that showing

on this record. If I can make that point, I’d like to

make that point.

So first of all, as I mentioned earlier, the CIT has

already denied a TRO and the three-judge panel in the

CIT has already explained the importer in that case

couldn’t demonstrate irreparable harm. Same here. I

think the fundamental reason why the—none of these

importers can demonstrate irreparable harm is that a

refund remedy will be available at the end of the case

should the plaintiffs ultimately prevail. This is

something the CIT often does. The Federal Circuit has

precedent on whether—when and whether refunds are

available. It’s one of the rare cases where a plaintiff

who prevails in a challenge to government action can

get a monetary award as a remedy. So if these

plaintiffs, you know—if they incur costs due to the

tariffs and they pay import duties as a result of the

IEEPA tariffs, a refund remedy will be available to

them at the end of the case and, as you know, if harm

is able to be remedied by a court at the end of the case,

there is no irreparable harm.

THE COURT: But if the tariffs are so high that

the party can’t import at all, then there’s no tariffs

paid and so there’s no remedy; is that right?

MR. SHUMATE: I don’t think that’s the case

here. [24] I think what the plaintiffs are arguing to try

to get around that, kind of, direct financial injury is to

argue there are other indirect consequences and costs

attributable to the tariffs, but those are, you know,

ordinarily—ordinary economic harms which are

traditionally not cognizable as irreparable harm in the

D.C. Circuit. As you know, the D.C. Circuit has a very

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high standard of irreparable harm.

Typically,

economic harm is not a type of irreparable harm in the

D.C. Circuit.

And just think.

The practical

consequences is if the plaintiffs can complain that

they’re suffering ordinary business harm as a result of

the IEEPA tariffs, then every plaintiff—any importer

or any purchaser could come to this court and ask for

a TRO or an injunction based not just on the fact that

they may have to pay the duties as an importer, but

also as a purchaser. “Oh, my, you know”—“the cost of

goods are going up, you know? Other businesses are

raising costs as a result of the tariffs.” All of that harm

would likely be something that plaintiffs would argue

before you that would be—amount to irreparable harm

which just has never been cognizable in the D.C.

Circuit as irreparable harm.

So I think, fundamentally, any harm that the

plaintiffs suffer as a result of the tariffs by having to

pay them will be compensated to them at the end of

the case, should they prevail. By contrast, granting an

injunction [25] would cause catastrophic harm to the

government, to our national security, and to our

foreign policy, as explained in the four cabinet

secretary declarations. If I could just walk through a

couple brief points in those declarations.

First, they explain that the Government is

currently negotiating trade deals with other countries

to address urgent threats to our national security and

economy. That’s at Paragraphs 8 through 10 of

Secretary Rubio’s declaration. They also explain that

the ongoing trade negotiations with other countries

are premised on the IEEPA tariffs. That’s Paragraph

11 of Secretary Rubio’s declaration.

All four

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declarations explain if those tariffs are enjoined, the

Court would cause diplomatic embarrassment to the

government, the negotiations with trading partners

would collapse, and other countries would retaliate

against our country.

They explain finally that

maintaining the tariffs is necessary to protect the

national security and the economy of the United

States. So—

THE COURT: So what exactly are they saying

will cause that damage? The ability to collect the

tariffs from this small company—or small companies

or invalidating the whole scheme?

MR. SHUMATE: I think any type—we’ve only

submitted these declarations on the balance of the

equities and on the remedy. So the point that we want

the Court to [26] consider is any type of injunctive

relief that enjoins the tariffs, whether it’s nationwide

or as to particular plaintiffs, would cause devastating

harm to our national security and foreign policy

because other countries would interpret that

injunction, even if the Court attempts to narrow it, as

a judgment from a U.S. court that the president cannot

continue to enforce those tariffs. And, as I mentioned

earlier, even that limited relief to these plaintiffs

would likely be a magnet for thousands of other

plaintiffs who also want relief from these tariffs. Not

just importers, but also purchasers.

THE COURT: So if I were to conclude, one, that

I have jurisdiction, but, two, that the IEEPA does not

provide for tariffs and state as much but decide on the

balancing Prongs 3 and 4 that collapse because it’s the

government that the things set forth in the

declarations are troubling enough that the

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government’s interests outweigh the small companies’

interests, would that create the parade of horribles set

forth in the declarations?

MR. SHUMATE: I think it could—potentially

could, because it would still be reported that a U.S.

court has struck down the tariffs. And, again, you—

again, you would have multiple—potentially

thousands of other plaintiffs that flood into this court

and seek the same relief. So you know, the last point

I wanted to make is [27] if—

THE COURT: But if that’s what I conclude,

what, am I supposed to stay mute if I deny the motion

based on the third and fourth prongs but conclude that

they have a substantial likelihood of prevailing on the

merits?

MR. SHUMATE: In that situation, I think you

would deny an injunction because the plaintiffs

haven’t demonstrated either irreparable harm or the

balance of the equities favors the Government. In that

situation, just grant a declaratory judgment and the

Government could appeal in the ordinary course

without having to be faced with potentially emergency

appeals to the Circuit and potentially to the Supreme

Court. So I don’t want to pre-judge what the SG may

decide in any particular case, but it’s really—the

purpose of those declarations is to emphasize the

harms from injunctive relief of any kind.

THE COURT: Okay.

MR. SHUMATE: So the last point I wanted to

cover today was the merits. And, again, you don’t need

to decide the merits for purposes of jurisdiction or for

their PI motion, because you can just deny the PI

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motion for lack of irreparable harm. But to the extent

the Court decides to address the merits—

THE COURT:

I mean, I understand your

argument that the plaintiffs’ harm is somewhat

speculative. But [28] given how much shifting there is

in the policy itself, how are they supposed to provide

proof of harm that’s not speculative to a certain

extent?

MR. SHUMATE: Well, I think the only type of

harm that is certainly impending is harm from having

to pay the import duties, and even that may not be

certainly impending if the duties are rescinded or

modified. I think the amount is questionable. I think

all of that goes to a failure on their part to demonstrate

irreparable harm that warrants the Court’s

immediate relief at the preliminary injunction stage.

I think all of these harms are speculative, particularly

the harms about, kind of, consequences to their

business; about, you know, inability to make decisions

because of the uncertainty of the tariffs. If that were

the standard for irreparable harm, then any business

could come into court seeking a PI or a TRO whenever

any agency issues any type of regulation that affects

any type of business. That’s never been the law in this

Circuit, and it shouldn’t be the law with respect to this

case in particular involving national security and

foreign policy.

So last but not least, to address the merits, again,

the Court doesn’t need to address it, but to the extent

you decide to address the merits, I wanted to

address—make a couple of points. The first is that the

president’s reliance on emergency authority for tariffs

is [29] not novel. Again, President Nixon relied upon

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the Trading With the Enemy Act way back in the

1970s. He relied on the exact same language—

THE COURT: Did he? They argue that he didn’t;

that that was the lawyers later on.

MR. SHUMATE: Well, it was upheld by the

Circuit. T he Circuit held that—the appellate court,

excuse me, held that the Trading With the Enemy Act

upheld—authorized President Nixon to issue those

tariffs in 1971 based on the language in that statute

that said “regulate imports.” The—in response to that

ruling, Congress enacted IEEPA. On the backdrop of

Yoshida—

THE COURT: But did President Nixon, when he

imposed the tariffs, invoke the predecessor to—

Trading With the Enemies Act?

MR. SHUMATE: I don’t recall whether he

specifically invoked that in the presidential

proclamation, but the case was litigated on that basis.

And on that basis, the appellate court upheld

President Nixon’s tariffs, and then subsequent to

Yoshida the Congress enacted IEEPA knowing full

well about Yoshida and what President Nixon had

done in that case and used the same statutory

language, “regulate importation of property,” and that

is the same statute that the president has relied upon

here. That is controlling in the Federal Circuit.

That’s, I think, why—[30] explains why the plaintiffs

have tried to file in this court improperly. And

plaintiffs have also said that every other statute

authorizing tariffs uses the word “tariffs.” That’s not

the case. Section 232 has long been interpreted as

authorizing tariffs. The Supreme Court’s decision on

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that is called Algonquin. 232 says “adjust imports” and

it’s long been interpreted to authorize the agencies in

the executive branch to issue—to—import duties or

tariffs to adjust imports. The same goes here. The

president is using IEEPA as a means to regulate

importation. Yoshida’s controlling in the Federal

Circuit. It should be persuasive precedent here.

THE COURT:

What do you make of this

argument that—I haven’t looked at that congressional

amicus brief in the Oregon case yet. But what do you

make of that argument?

MR. SHUMATE:

So our—I think it’s a

mischaracterization of our argument. Our argument

is not that the word “regulate” authorized tariffs. Our

argument is that the phrase “regulate importation of

property” authorizes tariffs. It’s the same language in

the Trading With the Enemy Act. Now, exportation is

different. “Regulate importation” may have a different

meaning, and under IEEPA—as, I think, you know,

Your Honor; you’ve had IEEPA cases—export controls

might be something that fall [31] within the phrase

“regulate exportation.” It wouldn’t authorize, you

know—import a, you know—tariff duties from, you

know—imports from states, for example—or exports

from states. So I think that’s the response, is that our

argument doesn’t hinge just on the word “regulate,”

but it’s “regulate importation” which Congress knew

had a particularized meaning in light of Yoshida. And

so that is the exact same language that the president

relied on here.

And I think another point to make is, you know,

what is the standard of review by which the Court

should review the statute? And, again, we agree with

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the plaintiffs that the Court can review the threshold

statutory question of whether IEEPA authorizes

tariffs, assuming you have jurisdiction. The plaintiffs

are arguing the major questions doctrine should apply,

but that’s the wrong lens and framework by which to

look at this case. Those cases—all of the Supreme

Court’s cases in that line—that doctrine—that

doctrinal line of cases involve agencies filling gaps in

statutes; right? The old Chevron framework would

apply. Is the agency reasonably interpreting the

statute? Well, the major questions doctrine says,

“Well, when an agency is deciding a really big

question, we expect Congress to speak clearly and

provide the agency with a clear delegation of

authority.” That’s not the right framework here

because Congress expressly delegated [32] authority

to the president in an area of national security and

foreign policy, and in that context the Supreme Court

has been very deferential and so has the Federal

Circuit in cases like Trump v. Hawaii, B-West,

Florsheim, Yoshida, Maple Leaf. These are also trade

and tariff cases, as well. In that context, courts are

extremely deferential to the executive branch in an

area of foreign policy and national security. In fact,

the standard that we’ve argued applies and controls in

the CIT is what’s called the Maple Leaf clear

misconstruction standard. Did the president clearly

misconstrue the statute? Here, he did not, because

there was the Yoshida precedent that clearly

recognized the president’s authority to regulate

importation through tariffs—that’s exactly what the

president did here—and that action was clearly

authorized by IEEPA.

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The plaintiffs have also raised a non-delegation

challenge to the statute, even though no court has ever

found a non-delegation problem with IEEPA. Just a

couple points on that, Your Honor. The statute

contains procedural limits, requires the executive to

consult with Congress, requires reporting—detailed

reporting to Congress about what the president did,

what the emergency is, and there’s also a reporting

obligation subsequent to the initial report. There are

also temporal limits on IEEPA. As you know,

emergency declarations are supposed to last for one

[33] year. They can be extended, but presumptively

they only last one year.

And finally, there’s a number of substantive

limits in IEEPA that constrain the president’s

authority under that statute. First, there has to be an

emergency finding. As Yoshida explains, that is a

political check on the executive. The statute also

articulates a heightened standard and describes what

the type of emergency is that is necessary to trigger

IEEPA. It has to be an unusual and extraordinary

threat. It has to also originate from outside the United

States. And it also has to be a threat to our foreign

policy, national security, or economy. And Congress

also specified the means by which the president is

authorized to address the threat, everything from

investigate to prohibit importation altogether. But

within that delegation, Congress authorized the

president to act broadly and provided broad delegation

to the president to address the means by—to address

the threat—by whatever means he felt is appropriate

to address the threat.

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The last point I’d like to make is just the

president—the Court can’t review the president’s

compliance with IEEPA. Now, we focused today

mainly on what the statute means, but in their

briefing the plaintiffs have also raised arguments

about, “Well, this isn’t an unusual and extraordinary

threat,” or they quibble with the [34] president’s

factual findings to say that this is not something that

was appropriate for the president to do, the means

don’t justify the ends, that sort of argument. I think

all of that is out the window because of the political

question doctrine. Your Honor, you had an opinion,

the Tett [ph] case earlier this year, that, I think,

there’s—there are very similar arguments that the

plaintiffs are making here that you rejected in that

case. These are all political questions. Congress set

up a scheme to review the emergency declarations and

the president’s actions under IEEPA. It’s not for the

Court to review the—whether the president has

complied with IEEPA. That is for Congress to decide.

So in sum, we’d ask the Court to transfer this case

to the Court of International Trade without even

addressing the merits.

THE COURT: All right. Thank you.

All right. Mr. Shah, you get the last word.

MR. SHAH: Thank you, Your Honor. If I could

start with a few points on jurisdiction.

THE COURT: Mm-hmm.

MR. SHAH: The Government still doesn’t have

any response to K Mart. That was a 1581(i) case. CIT

and Federal Circuit said they had exclusive

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jurisdiction in a separate line of cases. This court and

the D.C. Circuit [35] determined it had jurisdiction.

The Supreme Court sided with this court after a

Circuit conflict. That is on point Supreme Court

authority that disavows the Government’s position

that you should simply kick this over to the CIT. The

argument that they made—on Friday, they submitted

the Barnes decision. This is the first decision in the

history of the CIT to ever exercise jurisdiction over an

IEEPA case. If you look at the jurisdictional analysis,

if that’s what the Government has in mind of what the

CIT is doing in its jurisdictional analysis, that is the

poster child for why this Court should not defer and

kick things over to the CIT. It does zero independent

analysis of whether IEEPA, the law under which this

case arises, provides for tariff. Instead, it cites Alcan.

Alcan is a follow-on case to Yoshida and Alcan found

jurisdiction in the CIT. If you look at the pages in

Alcan—and we cite this in our two-page response to

their supplemental filing of Barnes—if you look at

Alcan, it rested jurisdiction on 1581(a). That is not at

issue in this case. That comes in to protest and refund

cases. This is a 1581(i) case. So the case on which the

CIT rested its jurisdiction without doing any

independent analysis of whether IEEPA actually

provides for tariffs doesn’t even apply in this case. So

that, I think, strongly supports us, not the

Government.

The only other argument I heard from the [36]

Government today—which is not in their transfer

motion—is that, maybe, somehow, as one of the judges

raised at the CIT argument, that this case arises out

of the HTSUS. The HTSUS is a tariff schedule. Our

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case doesn’t arise out of the tariff schedule. It arises

out of IEEPA. That is the substantive law under

which the president acted. If there is any doubt about

that, they cite on Page 6 of their transfer reply a case

called International Labor. That’s a D.D.C. case. That

was a 1581(i) case. And what this court said is, in

determining under what law something arises, I look

at the substantive legal theory. And there, it said,

“Oh, because the substantive legal theory in that case

is Section 307 of the trade act, then it arises under that

act, not under the APA or under the tariff schedule or

anything like that.” So this argument—which, again,

that’s not the argument in Barnes that the CIT gives

for jurisdiction; that’s not the argument in the

Montana court that they cite; that’s not the argument

in the Florida case they cite. They are grasping for

straws at a jurisdictional theory to avoid resolving the

question here.

This Court should reject that

invitation.

If I can move on to the preliminary injunction

versus summary judgment, I have not heard any

reason why the Government would be prejudiced by

just deciding this pure question of law as a pure

question of law. They agreed to [37] it in the Court of

International Trade. The briefs are not any different

in the Court of International Trade versus the briefs

they filed here. It’s a pure question of law. It would

be entirely duplicative to enter a preliminary

injunction, then have cross-motions for summary

judgment on the exact same question. We’re not

asking for a likelihood of success. We want success.

We are right on the statutory interpretation question.

This Court should enter final judgment.

102a

When you asked my friend on the other side

about, “Well, what is the harm that the government is

going to suffer from an adverse ruling; that is, an entry

of summary judgment versus also enforcing”—

“stopping collection of duties from this client,” they

have no answer; right? The Rubio declaration that

they submit—and I think I read it to you earlier—it’s

talking about an adverse ruling. They don’t want an

adverse ruling. Well, I don’t want an adverse ruling

either, but it’s the Court’s job to decide the question of

law. If it decides the question of law, it enters final

judgment. I think, at the end, they even conceded you

could enter declaratory judgment. Well, once you

enter declaratory judgment, I think enforcing

application of the collection with respect to our clients,

the balance of harms is not even close at that point.

As you pointed out, the flaw in the Government’s “lack

of [38] irreparable harm” theory is that our clients

cannot continue importing under the tariffs. So there

are no refunds to get at the end of the day. Instead,

what do they have? If they can’t import their tariffs

[sic] under a 145 percent tariff or a 30 percent tariff or

whatever president decides tomorrow to make the

tariffs, well, then there is nothing to collect on refunds.

Instead, all they are accumulating are the lost sales

from products they can’t sale [sic]. That is no

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