Tuesday, May 20, 2014

Supreme Court Takes No Action on Customs Cases

A couple interesting customs matters were presented to the Supreme Court this term. Unfortunately, the Court declined to hear either.

The first was the Deckers case about the meaning of the tariff term "slip on" as applied to footwear. The reason this was potential Supreme Court fodder was that the Court of International Trade and the Court of Appeals for the Federal Circuit gave weight to a definition of the term set out in a Customs and Border Protection document. That document was not a regulation and had not been vetted by public notice and comment. Deckers argued that the courts gave too much deference to this document and opened up the possibility that all CBP internal documentation will be subject to excessive judicial deference.


The second was a pair of cases involving the question of whether Congress violates the Equal Protection Clause of the U.S. Constitution when it assigns rates of duty to merchandise based on the gender or age of the intended user. The Court of International Trade and the Federal Circuit both held that despite clear gender-specific and age-specific language in the HTSUS, the possible discrimination was not "facial." As a result, the plaintiffs were required to show discriminatory intent, which they were unable to do. This effectively puts an end to the valiant effort of some customs lawyers to eliminate apparently discriminatory tariff rates.

The details of these cases are in prior posts, to which I have linked above.

If you doubt my journalistic ability to report these events, the Supreme Court order is here.

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