Katyal to Argue Supreme Court Trump Tariff Case After Coin Toss

Small businesses are turning to prominent litigator Neal Katyal to argue at the Supreme Court that the bulk of President Donald Trump’s tariffs are unlawful after a coin toss landed in his favor.

The court is due to hear arguments on Nov. 5 in what is set to be a pivotal test of Trump’s authority, with a decision affecting trillions of dollars in international commerce.

A group of small companies who challenged Trump’s tariffs in two separate lawsuits agreed Katyal would handle the case after the court last week announced one advocate would argue on behalf of the private parties.

“After a few days of discussion between the parties, Neal Katyal of Milbank was appointed to this role after a coin flip,” said Rick Woldenberg, the CEO of Learning Resources Inc., an Illinois-based firm that sells educational products.

“We are honored to be represented by Neal at this important moment in the case,” Woldenberg said, “and are putting all our energy into preparing for the hearing” on Nov. 5.

Katyal, now a partner at the law firm Milbank, served as an acting solicitor general during the Obama administration and has argued more than 50 cases at the Supreme Court, many of them on behalf of business interests. He didn’t immediately respond to a request for comment.

Katyal joined Milbank in February, just months before the firm reached a deal with Trump to spend $100 million on initiatives backed by the firm and the president.

He got involved in the legal fight over Trump’s tariffs in June as a US appeals court considered a challenge from five small businesses led by wine and liquor distributor V.O.S. Selections Inc.

The Supreme Court will also consider separate lawsuits brought by Democratic-led states and Learning Resources, which is represented by Pratik Shah, the head of Akin Gump’s Supreme Court practice and the other top contender to argue the case.

Trump argues his taxes on imports, many of which include the April 2 “Liberation Day” tariffs, are authorized under the 1977 International Emergency Economic Powers Act, which gives the president power to address emergencies tied to national security and foreign policy.

That law says a president can “regulate” the “importation” of property, whose meaning is fiercely disputed by the government and the parties who sued.

Katyal and other lawyers representing V.O.S. Selections have also argued Trump’s tariffs represent a “breathtaking assertion of power” that would generally include an “unequivocal grant of authority from Congress to support it.”

“Yet the statute the President invokes, the International Emergency Economic Powers Act (IEEPA), never mentions tariffs, and in 50 years no other President has used it for that purpose,” Katyal said in an Oct. 20 brief.

It wasn’t immediately clear whether Solicitor General John Sauer or one of his deputies would make arguments on behalf of the government. Sauer has yet to appear before the court during the term that started in October.

The private parties and the Democratic-led states will each get an allotted 20 minutes to appear before the justices, but argument time typically stretches well beyond that limit in big cases.