WE the Gloves of these United States

WE the Gloves of these United States …?

On July 3, the day before Independence Day, when we’re supposed to try to remember just how we Americans came to be enjoying the sun, the beer and family and friends in peaceful and relatively prosperity, the US Court of International Trade, the federal court specialist in Customs and international trade law, issued an excellent lesson in our very own Constitution. The CIT dismissed Totes-Isotoner v United States for failure to state a claim for which relief could be granted. In this case, Totes claimed that the Customs’ duty rates assessed on men’s gloves, which are 2% higher than the duty rates for women’s gloves violate the Equal Protection clause of the Constitution. With the tolerance and gentleness of a doting parent for a child, the Court dismissed Totes’ case without prejudice, meaning that if they can come up with better facts, they can have another try.

But, I, for one, don’t think that’s going to happen. The CIT did not, as one law firm claims, dismiss this case on a mere technicality. See Sandler, Travis & Rosenberg newsletter. (I would argue that dismissal of a case for failure to state a claim is never just a technicality.) Rather, the Court went to considerable lengths to explain what to me has been obvious from the moment I heard about this lawsuit: THE CONSTITUTION PROTECTS PEOPLE, NOT THINGS. For a Customs duty or any other tax for that matter to be unconstitutionally discriminatory it must discriminate against an identifiable class of people. That we pay a higher import tax on men’s gloves does not mean necessarily that the tax discriminates against men.

Judge Pogue, who wrote the rare three-judge panel’s decision, pithily cited an excellent example of an unconstitutional discriminatory tax: “A tax on yarmulkes is a tax on Jews.” Totes at page 15, quoting Bray v. Alexandria Women’s Health Clinic, 506 U.S. 263, 270 (1993). To me, that one example says it all. For a Customs duty to be unconstitutionally discriminatory, a group or class of persons against whom that particular duty discriminates must be identified and the injury they suffer as a result of that duty proven.

My colleagues’ in the Customs bar confusion is, perhaps, understandable. Customs law is almost entirely about things. Most of the legal issues revolve around those things: what are they?, what are they worth?, where did they come from?, how were they made?, what are they used for?, etc. Even when the issue involves people it usually is what the person did or didn’t do with the thing. The most dramatic action Customs can take is to seize and forfeit (take away) goods. Legally, Customs’ action is against the thing (see in rem), not the person who did something wrong with the thing.

“But”, my colleagues will say, “what about US Shoe, in which the Supreme Court found the Harbor Maintenance Tax to be unconstitutional?” “Yes”, I would respond, “what about US Shoe? That case proves my point. In US Shoe”, I would continue (a bit pedantically), “the Supreme Court found the HMT to be unconstitutional because it taxed exports. Like the yarmulke tax, the HMT was unconstitutional because it taxed exporters (albeit in violation of the Export Clause, not the Equal Protection clause), producers of goods manufactured in the United States, which the Founding Fathers wanted to promote.”

It’s most important to remember that the Declaration of Independence and the Constitution were about people and how we want to live our lives and be treated by others. Their opening words show that: “When in the course of human events …” and “We the People ….” The CIT was just being nice in dismissing the case without prejudice; there’s really no Constitutional issue here. There never was and there never will be. If I’m wrong, send me a pair of men’s Totes gloves, duty paid COD and I’ll eat them.