Cato Institute Urges CAFC to Ignore 'Maple Leaf' Standard in Suit on Revocation of Tariff Exclusion

Libertarian think tank Cato Institute asked the U.S. Court of Appeals for the Federal Circuit for leave to file an amicus brief in support of a group of solar panel exporters' bid to have the court revisit its ruling sustaining President Donald Trump's revocation of a tariff exclusion on bifacial solar panels (Solar Energy Industries Association v. United States, Fed. Cir. # 22-1392).

In the proposed amicus brief, Cato argued against the standard of deference afforded to the executive established by the Supreme Court in Maple Leaf Fish Co. v. U.S., in which the government's interpretation of a statute is found to be correct save for a "clear misconstruction" of the statute. The think tank argued that the Maple Leaf standard "undermines" the independence of judicial review -- part of the "original design of the Constitution -- and is "out of step with modern administrative law doctrines."

A three-judge panel at the Federal Circuit in November ruled that Trump didn't clearly misconstrue the statute when revoking the bifacial solar panel tariff exclusion (see 2311130031). Judges Alan Lourie, Richard Taranto and Leonard Stark said the statute under which Trump made the revocation -- Section 2254(b)(1)(B) of the Trade Act of 1930 -- allows for trade-restricting modifications and not only trade-liberalizing ones.

Solar panel exporters, led by the Solar Energy Industries Association, asked for a rehearing based on the claim that the Maple Leaf standard is unconstitutional and saw the judges abdicate their "constitutional role" (see 2401120034). Cato emphasized this point in its proposed amicus brief, telling the appellate court that the Constitution "requires courts to exercise independent judgment when saying what the law is."

The brief emphasized the framers of the Constitution's view regarding judicial review, which it said was that judicial review is the means by which "the judiciary checks the other branches." For this review to work, however, "the judiciary must be independent," and "American courts have historically exercised independent, non-deferential judgment" in support of this "constitutional design," Cato said.

Deference to the executive was only afforded by 19th century courts "for interpretations that were longstanding and contemporaneous with a statute's enactment" and only because these interpretation "provided good evidence of the statute's meaning." Cato said this was not "true legal deference, but merely treating good evidence of statutory meaning as persuasive." The think tank mentioned the Chevron deferential standard as well, currently under review by the Supreme Court (see 2401180060), in claiming that since Chevron, the court has "returned to consistently deciding the meaning of statutes without deference to executive interpretations."

Cato additionally argued that the foreign affairs exception found in Maple Leaf "is not justified by precedent and should be overruled." The think tank walked the Federal Circuit through a handful of high court opinions in an attempt to show that none of them codifies showing deference to the executive in foreign affairs cases. For instance, Cato cited the 2022 Supreme Court decision in Biden v. Texas, in which the court considered the "foreign affairs consequences" of a statutory interpretation which would have "limited the executive."

The court only considered these consequences "as additional support for its holding after first rigorously analyzing the statutory text to determine the objective statutory meaning," Cato said. The court also noted that the "significant burden on diplomatic relations that the rejected statutory interpretation would have imposed was evidence that Congress did not intend that interpretation." The think tank found that to be an example of the "absurdity canon" as opposed to the deferential one.