By  on September 21, 2007

WASHINGTON — The Bush administration has responded to charges that the U.S. tariff schedule has a gender bias by claiming the issue has no place in the judicial system.

Nine months after Totes-Isotoner Corp. charged that it is discriminatory to apply different tariff rates to imports of women's gloves versus those of men's, the Bush administration filed a motion to dismiss the case late Tuesday.

The lawsuit is being used as a test case and will determine if a slate of similar actions representing 51 plaintiffs, from Nordstrom and Prada to Tommy Hilfiger and Target, will go forward, said Michael Cone, a Neville Peterson attorney working on the case for Totes-Isotoner. The administration argued the courts have no say over the matter since trade policy is the Constitutional responsibility of the legislative and executive branches.

"Judicial intervention could undermine policies, strategies and negotiations of the United States in reaching international trade agreements, potentially causing embarrassment from multifarious pronouncements upon trade matters, expressing a lack of respect for Congress and the President and the need to adhere to the political decisions made," argued the motion submitted by Assistant Attorney General Peter Keisler.

The motion, which said variability in the duties were, in part, the result of complex multinational trade negotiations, also challenged the company's standing to bring the case.

Cone said the company will continue the fight.

"Even though the Constitution does delegate the powers to engage in international commerce to the political branches...they can't behave in ways that violate other areas of the Constitution," said Cone. "The Constitution doesn't get thrown out because we're talking to other countries."

The motion, which was filed in the New York-based U.S. Court of International Trade, marks the end of the opening salvo and Totes-Isotoner is scheduled to rebut on Oct. 24, said Cone, who provided WWD with a copy of the government's motion.

The government has the chance to reply again and oral arguments could be held this year. Once a decision is rendered, it could be appealed and eventually find its way to the U.S. Supreme Court. Should Totes-Isotoner win, the Court of International Trade would then consider the merits of the case.

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