Larry has a great blog on U.S. Customs Law (I urge you all to read it religiously if you are more legally oriented in the industry and significantly interacting with U.S. Customs), and his most recent post sums up the demise of a good attempt to work around the HTSUS classification tables by bringing claims of constitutionally violative discrimination.
Issue:
Customs Law: Equal Protection Claims Dismissed
Nitty-Gritty
After reading the opinion (also linked in Larry's post), I have to say that this appears, probably to everyone else also prepping for the bar, that the legal theory under which the case was brought is a stretch... mostly because the HTSUS sounds exactly like the basic hypo they give in Barbri or Kaplan PMBR to show acts (laws, regulations, etc.) serving a public good or welfare purpose that are not overtly discriminatory which nevertheless effect a certain group more than another group usually win the Equal Protections' arguments.
Take-Away
The HTSUS is what it is (all 3546 pages of it), and frankly I would fathom companies have a better chance arguing EP discrimination of the law or executive agreement made to allow the classification for that part of the HTSUS rather than the HTSUS itself (i.e. you have a better shot at proving NAFTA discriminates than the HTSUS, and even the NAFTA argument is probably not a good one either). I would also think arguing that your particular product fits under a more favourable classification should be the first attempt, rather than venture into the ethereal realm of "constitutional law settling business transactions", but they may have already tried that.
Issue:
Customs Law: Equal Protection Claims Dismissed
Nitty-Gritty
After reading the opinion (also linked in Larry's post), I have to say that this appears, probably to everyone else also prepping for the bar, that the legal theory under which the case was brought is a stretch... mostly because the HTSUS sounds exactly like the basic hypo they give in Barbri or Kaplan PMBR to show acts (laws, regulations, etc.) serving a public good or welfare purpose that are not overtly discriminatory which nevertheless effect a certain group more than another group usually win the Equal Protections' arguments.
Take-Away
The HTSUS is what it is (all 3546 pages of it), and frankly I would fathom companies have a better chance arguing EP discrimination of the law or executive agreement made to allow the classification for that part of the HTSUS rather than the HTSUS itself (i.e. you have a better shot at proving NAFTA discriminates than the HTSUS, and even the NAFTA argument is probably not a good one either). I would also think arguing that your particular product fits under a more favourable classification should be the first attempt, rather than venture into the ethereal realm of "constitutional law settling business transactions", but they may have already tried that.
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