Lawrence Friedman explains the CIT's latest decision in a case involving different tariff rates for men's and women's gloves:
Once the Court reached the conclusion that the tariff is not facially discriminatory, the burden on the plaintiff is much higher. Simply showing that the discrimination has a disparate impact will not be enough. Instead, the plaintiff needs to assert facts showing a governmental intent to discriminate. And that, as you might guess, is a problem.
The first fact alleged to show discriminatory intent is that the United States government could have selected any other criteria on which to impose this duty difference. Since it chose gender and age, it must have intended to discriminate. I read that to mean that if the government wanted to burden bigger manly gloves more than dainty lady gloves, it could simply have differentiated between gloves based on size or weight. Since it did not do so, the government must have intended to put the burden on men.
The second argument was based on a governmental report from 1960 indicating that gender based tariff rates were of questionable economic justification. The Court of International Trade rejected that argument as well, holding that the report was not evidence of any Congressional intent behind the current tariff schedule.
Based on this analysis, the Court found that the plaintiffs had failed to assert facts that, if true, would plausibly give rise to an entitlement to relief. That is the standard the Supreme Court has said must be met for a case to move on in federal court. All of which seem logical and incredibly lawyerly.
