Here is a report on recent news and commentary related to the Federal Circuit and its cases. Today we highlight:
- an article commenting on how “[f]acts . . . matter and should play an important, even dominant, role” in President Trump’s tariffs case;
- an article arguing “the economic effects of the Supreme Court’s decision about the reach of the IEEPA may prove marginal at most” and, by contrast, “[i]t will be the legal precedent and the Court’s rationale that will matter most to the overall trajectory of presidential power”;
- an article suggesting that, “[i]f the president believes that global tariffs are in the national interest, he should take his case to Congress”; and
- a blog post suggesting U.S. Patent and Trademark Office Director John Squires “appears to be using institutional silence as a policy instrument to strengthen patent rights by avoiding substantive review.”
James Wallar authored an article for the Council on Foreign Relations commenting on how “[f]acts . . . matter and should play an important, even dominant, role” in President Trump’s tariffs case. Wallar suggests “facts were missing in the dissenting opinion” at the Federal Circuit. According to Wallar, moreover, “[e]vidence presented to the Supreme Court should demonstrate that the administration’s alleged facts do not support the preconditions for invoking IEEPA.” For more information on the case, check out the case page in Trump v. V.O.S. Selections, Inc.
Peter Shane and Robert Litan wrote an article for Brookings about President Trump’s tariffs case, arguing “the economic effects of the Supreme Court’s decision about the reach of the IEEPA may prove marginal at most” and, by contrast, “[i]t will be the legal precedent and the Court’s rationale that will matter most to the overall trajectory of presidential power.” In particular, Shane and Litan suggest “it would be a mistake to assume that the tariffs implemented under the authority of the IEEPA would not soon reappear” even if the Supreme Court strikes down the tariffs, because the President “likely has authority under three other provisions of U.S. trade law to eventually reinstate the IEEPA tariffs in full.” Again, for more information on this case, check out the relevant case page.
Elizabeth Goitein authored an article for the Brennan Center for Justice suggesting that, “[i]f the president believes that global tariffs are in the national interest, he should take his case to Congress.” Goitein points out that, “[o]ver time, Congress has delegated parts of that authority to the executive through various laws that expressly authorize the imposition of tariffs under specific conditions, often with time limits or a ceiling on the amount of the tariffs.” Goitein indicates “[l]awmakers can decide whether to adopt his plan via the regular legislative process, with democratic debate and accountability to their constituents.” Again, for more information on this case, check out the relevant case page.
Dennis Crouch penned a blog post for PatentlyO suggesting U.S. Patent and Trademark Office Director John Squires “appears to be using institutional silence as a policy instrument to strengthen patent rights by avoiding substantive review.” According to Crouch, “John Squires has now issued 34 decisions on IPR institution since assuming personal control of the institution process in October 2025, with all 34 petitions denied.” Crouch says “[t]hese summary orders provide no reasoning or analysis, listing only the denied IPR numbers and stating that ‘institution of inter partes review is denied.’” Crouch indicates “[t]he current practice of issuing summary notices without explanation represents a significant departure from the PTAB’s historical practice of reasoned institution decisions and from the general requirements of APA decisionmaking.” According to Crouch, “[i]n addition to the lack of guidance from practitioners, the lack of transparency creates a shadow over the system suggesting the potential for unreasoned decisionmaking.”