Loper Bright and Political Questions

The Court of International Trade recently invalidated President Trump’s tariffs under the International Emergency Economic Powers Act of 1977 (“IEEPA”).  The government argued, among other things, that the court could not consider the case because of the political question doctrine.

One reason that doctrine may apply is due to “a lack of judicially discoverable and manageable standards for resolving” the case.  The court rejected that as a basis not to hear the case by relying on Loper Bright.

The court wrote:

This reliance on the political question doctrine is misplaced. The court can “manage” the
standards for applying 50 U.S.C. § 1701’s “deal with an unusual and extraordinary threat”
language just as it “manages” the standards for any other statutory enactment that constrains
independent executive action.

…

Even when it goes unmentioned, this principle is a common feature of statutory construction. In the trade context, for example, the antidumping statute permits the imposition of duties only where “the Commission determines that . . . an industry in the United States . . . is threatened with material injury.” 19 U.S.C. § 1673. The court does not automatically uphold every material injury determination of the ITC on lack-of-manageable-standards grounds simply because “threatened with material injury” is an imprecise term that sounds in foreign affairs. Instead, the court consults “the traditional tools of statutory construction” to ascertain the term’s meaning and applies that meaning to specific cases. Loper Bright Enters. v. Raimondo, 603 U.S. 369, 403 (2024) . . . As the Supreme Court explained in Zivotofsky, “[r]esolution of Zivotofsky’s claim demands careful examination of the textual, structural, and historical evidence put forward by the parties regarding the nature of the statute and of the passport and recognition powers. This is what courts do. The political question doctrine poses no bar to judicial review of this case.” 566 U.S. at 201.

This is a new and interesting application of Loper Bright in the context of the political question doctrine.  If courts’ core job is determining the legal meaning of terms, that is one fewer reason to find an issue nonjusticiable.