485 U. S. 176
March 7, 1988
An old tariff act prohibited the importation of any goods bearing U.S.-owned trademarks without prior authorization. Trademark owners were worried that Customs Service regulations which implemented this law recognized more exceptions to the general rule than were warranted by the statute. The trademark owners sued to get the liberal regulations thrown out, but the threshold question was jurisdiction. Under another law, the Supreme Court could not hear any case involving “embargoes.”
The Court ruled 5-3 that it could hear the case (Kennedy did not participate). Brennan said that the tariff law was not an ’embargo’, but a mere ‘importation prohibition.’ An embargo, he said, was a flat government ban grounded in general trade policy. In contrast, the law at issue allowed private trademark owners to have full say over whether or not goods could come in. Because the ball was in the court of the private owners, and not the government, it was not an embargo. Brennan thought that legislative history backed him up on this distinction. He also rejected another statutory jurisdictional argument, on the grounds that it only applied if Customs had denied importation of goods rather than allowed it.
Scalia, joined by Rehnquist and O’Connor, dissented. To summarize with the words of Potter Stewart, the dissent essentially said that we all know an embargo when we see it, and that the law was plainly an embargo on unauthorized goods with U.S. trademarks. He felt the majority was really splitting hairs. Scalia probably gets the better of Brennan here, but I hate jurisdictional nitpicking so much that I frankly don’t care. In any event, the Court delayed a determination of the merits of the case until later on in the term, so stay tuned.