Commerce Asks Court to Dismiss FedEx EAR Constitutional Challenge

The Commerce Department asked a federal court to dismiss a lawsuit filed by FedEx that said Commerce’s export controls are unconstitutional and impossible to comply with, according to a motion filed Sept. 10. Commerce raised several issues with FedEx’s suit (see 1906250030), saying the company did not “allege a plausible violation” of the Export Control Reform Act, and argued that FedEx failed to provide evidence for many of its points. “Even if these standards were judicially enforceable, FedEx’s allegations are conclusory,” Commerce said.

Commerce also said FedEx’s allegations were politically and policy driven and fell outside the court’s jurisdiction, such as allegations that Commerce’s export controls are unpredictable. The agency also said FedEx failed to show there is “no rational relationship between [the regulation] and some legitimate governmental purpose,” which is necessary to file a “substantive due process claim.” Commerce dismissed a FedEx argument that it is “arbitrary and irrational” to force a shipping company as large as FedEx to comply with the Export Administration Regulations. Commerce said it is tasked with the goal of promoting export compliance and insisted that all shipping companies comply with export controls.

“Requiring forwarding agents like FedEx to adhere to the EAR promotes compliance with the EAR generally, and therefore reduces the extent to which sensitive and dangerous items reach potential bad actors,” Commerce said. “It is inevitable that some exporters, intentionally or not, will attempt to ship items prohibited by the EAR, and requiring intermediaries to comply with the regulations makes it less likely that such attempts will be successful.”

Commerce said it “makes no difference” that FedEx said it is being forced to “adjust its business operations” to comply with export controls, saying government regulations are not arbitrary. “Courts must uphold challenged regulations even if they are ‘to some extent both underinclusive and overinclusive,’” Commerce argued. “As long as the regulations advance a legitimate government interest, as the EAR clearly do here, it is immaterial if they might ‘work to the disadvantage of a particular group.’”

Commerce said FedEx’s lawsuit should be viewed as a “policy complaint,” adding that FedEx’s desire to be exempt from the EAR does not create a constitutional violation on behalf of Commerce. If FedEx were exempt from the EAR, Commerce argued, it would create national security risks, which is a decision “for the Executive Branch, not Article III courts.”

Commerce also pointed to a series of other FedEx allegations that fall under policy complaints and cannot be ruled on by a court, including FedEx’s allegation that forcing FedEx to comply with the EAR is not “necessary” to protect U.S. national security, the records said. These allegations would force the court to rule on national security and foreign policy, Commerce said.

Email ITTNews@warren-news.com for a copy of the motion.