Following up on this post, the Court of Appeals for the Federal Circuit has upheld the decision of the Court of International Trade rejecting a claim that imposing different tariffs on men's and women's gloves violates the Equal Protection Clause. Lawrence Friedman of the Customs Law Blog explains the key substantive issues (and also the procedural issues, which I have not quoted here):
The Court of International Trade held that Totes' complaint failed to allege facts that state a claim for which it is entitled to relief. In other words, it did not provide the facts necessary to show illegal discrimination.The Federal Circuit's analysis was a little different than the CIT's, but it got to the same place. The Federal Circuit started from the premise that disparate impact alone can, in some cases, establish a violation of the equal protection clause. But, according to the Court, in the tariff context (as distinct from jury selection, employment, and housing), more is necessary. The plaintiff has to show an intent to discriminate. The first reason for this is that the tariff system is not really focused on the buyer. Rather, it is an effort to strike a balance based on product type, country of origin, and other economic and policy factors. The difference in duties between men's and women's gloves, therefore, is likely because they are different products affected by different economic conditions. Without evidence of an intent to discriminate against men, the Federal Circuit was unwilling to assume a discriminatory purpose.The second reason the Federal Circuit took this approach is that the Supreme Court has long held that Congress has broad authority to craft taxes to raise revenue. Taxing often includes the power to differentiate between group. I guess that is why there are multiple income tax rates.Because of these concerns, the Court held that the tariff differential is not facially discriminatory. In the absence of facial discrimination, a plaintiff needs to discriminatory intent, not just disparate impact. Totes did not plead any evidence of discriminatory intent. Consequently, the Federal Circuit affirmed the dismissal for failure to state a claim.There is an interesting concurring opinion in this case. The concurrence states that there is no reason to treat equal protection cases arising under the tariff laws different from any other equal protection case. Rather, the concurrence focuses on the fact that Totes' argument is based entirely on the presence of a facially discriminatory tariff. Totes, apparently, did make a disparate impact argument. But, according to the concurrence, because the tariff is not facially discriminatory because it is directed at products, not people and is borne by importers not persons of gender (to coin a stupid phrase). Consequently, traditional equal protection law requires a showing of discriminatory intent. That showing is missing, so according to the concurrence, the case should be dismissed.
Here's the decision. I found the following statement from the concurrence interesting:
Much like tuxedos and evening gowns are different products, men's and women's gloves are different products. The happenstance that the English language does not have separate names for these particular products, thus requiring reference to the gender of the intended wearer, does not transform the distinction into facial discrimination.
Is the difference between men's and women's gloves comparable to that between tuxedoes and evening gowns?
More here from Eugene Volokh:
I’m inclined to say that the different treatment is facially discriminatory — even though the distinction is based on the sex of the likely wearers of the gloves, and not necessarily based on the sex of the buyers of the gloves — and not just something that has a disparate impact. But I’m not entirely sure of this, and would love to hear your thoughts, especially if you know a good deal about the constitutional law of sex discrimination.
