President's Authority Over Section 232 Tariffs Supported by Supreme Court Precedent, Constitution, DOJ Says

President Donald Trump's authority to impose Section 232 tariffs on steel and aluminum is backed by constitutional provisions giving the president independent oversight of national security and foreign affairs, the Justice Department said in a Sept. 14 filing with the Court of International Trade. The filing was in response to a legal challenge from the American Institute for International Steel and two companies (see 1807200023) seeking a summary judgment to stop the tariffs. The Supreme Court also has previously ruled on the issue, DOJ said.

As part of another challenge to the Section 232 tariffs (see 1805080029), CIT itself recently acknowledged that "the Supreme Court has already determined that Section 232 is a constitutional delegation of authority." Specifically, in a 1975 ruling on a presidentially imposed license fee scheme and "one of only a handful of trade cases to be considered by the Supreme Court during the past half century, the Court held that Congress’s instructions in Section 232 provide an intelligible principle sufficient to defeat a nondelegation challenge," DOJ said. Arguments from the AIIS "to minimize the Supreme Court’s holding" are a mischaracterization of the decisions, it said.

The specific issue of whether Section 232 marks an unconstitutional delegation "was squarely raised in the lower court proceedings," the government said. "Contrary to plaintiffs’ suggestion, that the Supreme Court devoted more attention to the statutory question only demonstrates how weak the Court perceived the constitutional challenge to be." Claims that the analysis has changed because it's since become clear that the actions aren't subject to Administrative Procedure Act judicial review are also not persuasive, DOJ said. "Limitations on reviewability of the substance of Presidential policy decisions have neither changed nor provide any basis for an enhanced nondelegation doctrine that would tie the President’s hands more than others."

The AIIS argument that Section 232 delegation improperly grants limitless authority to the president is "demonstrably incorrect," DOJ said. There is codified guidance that "governs both how to adjust imports and whether to adjust imports," it said. There's also "no constitutional impediment to the President taking further actions or modifying prior acts to ensure that imports of articles are not threatening to impair the national security." The steel group also seemed to ignore the president's "power in the realms of foreign affairs and national security, which co-exist with the authority delegated by Congress in Section 232."

DOJ also objected to an Aug. 16 CIT filing by AIIS that referenced Trump's decision to increase duties on steel from Turkey (see 1808210037). "We are unaware of any Rule of this Court that authorizes such a pleading, nor did the plaintiffs ask for our consent or seek leave from the Court," it said.

Email ITTNews@warren-news.com for a copy of DOJ's filing.