Here is a report on recent news and commentary related to the Federal Circuit and its cases. Today we highlight:
- an article arguing how, in President Trump’s tariffs case, “[t]here is some reason to think the [major question] doctrine may disappear”;
- an article suggesting President Trump’s “universal tariffs are a legally unprecedented use of authority” granted by Congress;
- an article analyzing how “[t]he announcement that U.S. Patent and Trademark Office Director John Squires will now make all decisions on whether to institute America Invents Act patent reviews is expected to reshape litigation”; and
- a blog post highlighting how the National Weather Service Employees Organization and the Patent Office Professional Association “filed a motion for a preliminary injunction” alleging recent Executive Orders “unlawfully threaten employees’ rights to organize and bargain collectively” based on retaliation.
Adam Liptak authored an article for the New York Times arguing how, in President Trump’s tariffs case, “[t]here is some reason to think the [major question] doctrine may disappear.” In his analysis, Liptak points out how, in an earlier, unrelated case, “Justice Brett M. Kavanaugh proposed a distinction that could lay the groundwork for a decision in Mr. Trump’s favor in the tariffs case.” Liptak emphasizes Justice Kavanaugh’s statements that “‘[t]he major questions canon has not been applied by this court in the national security or foreign policy contexts’” and “‘[t]he usual understanding is that Congress intends to give the president substantial authority and flexibility to protect America and the American people.’” For more information on the case, check out the case page in Trump v. V.O.S. Selections, Inc.
Alan Wolff authored an article for the Peterson Institute for International Economics suggesting President Trump’s “universal tariffs are a legally unprecedented use of authority” granted by Congress. Wolff explains how it was long assumed that President Nixon used the Trading with the Enemy Act to declare “a balance of payments emergency” and impose “a 10 percent import surcharge in 1971.” Wolff contends, however, that “this reading of history is wrong: Nixon did not claim emergency authority for the measure under TWEA.” Wolff says, if he is right, “there is no legal precedent for Trump invoking emergency powers under IEEPA to impose his ‘reciprocal tariffs.’” Again, for more information on this case, check out the relevant case page.
Ryan Davis authored an article for Law360 analyzing how “[t]he announcement that U.S. Patent and Trademark Office Director John Squires will now make all decisions on whether to institute America Invents Act patent reviews is expected to reshape litigation.” According to Davis, some attorneys anticipate that “the rate at which petitions are denied could increase substantially with the director in charge, given policies the office has put in place that are seen as favoring patent owners.” As a result, Davis explains, “companies accused of patent infringement may no longer view PTAB challenges as a viable option in many cases.”
Rose Esfandiari penned a blog post for IPWatchdog highlighting how the National Weather Service Employees Organization and the Patent Office Professional Association “filed a motion for a preliminary injunction” alleging recent Executive Orders “unlawfully threaten employees’ rights to organize and bargain collectively” based on retaliation. As Esfandiari explains, “[t]he unions argued in their preliminary injunction motion that President Donald Trump ‘exceeded the discretion granted to him’ under 5 U.S.C. § 7103(b).” Furthermore, Esfandiari notes, the unions also argued “the exclusion of employees from the labor-management relations statute inflicts immediate, irreparable harm.”