Lawyers Representing Domestic Steelmakers and Steel Importers Argue Constitutionality of Section 232 Action

A lawyer representing the American Institute for International Steel recapped the arguments he made when announcing a June 2018 lawsuit over the constitutionality of Section 232 of the 1962 Trade Expansion Act (see 1806270036), while a lawyer representing the American Iron and Steel Institute said that while the importers may disagree with the policy of worldwide tariffs, that doesn't make it unconstitutional.

Joshua Turner, who filed an amicus brief in the Court of International Trade case, said on a panel at Georgetown Law March 7 that "it would require specifically overturning a past Supreme Court decision for this to come out in favor of Professor [Alan] Morrison." Turner acknowledged that since the Supreme Court agreed to hear another case that addresses the unlawful delegation principal -- that is, whether Congress abdicated its duty to write laws when it gave the executive branch broad powers -- it is possible that the high court is looking to reverse itself, and maybe even do a radical rethink of that delegation principal.

Alan Morrison, a George Washington University constitutional law professor, said that Turner made it sound like the questions are open and shut. "If this was such an easy case, the CIT probably wouldn't have convened a three-judge panel … [and] we probably would have had a decision by now," he said.

Courts have said it is too much delegation when the president's ability to act is unbounded. But Turner said the statute says the president's actions under Section 232 do have a limit -- what he does, whether tariffs or quotas, has to adjust the imports that are threatening national security. "That is actually a meaningful limitation," he said.

Turner also argued that the question of judicial reviewability isn't so critical because Congress can rewrite the law -- and as he noted, they're working to do that. Morrison retorted that Turner's "argument is that Congress could always fix it -- it isn’t going to do anything about the $3 billion in unconstitutional tariffs that have been collected in the meantime."