Federal Circuit Judge Probes Unfettered Section 232 Power During Oral Arguments

U.S. Court of Appeals for the Federal Circuit Judge Jimmie Reyna asked probing questions on the ability of the president to implement or alter Section 232 national security tariffs with few impediments, during oral argument on March 18. The judge questioned Department of Justice counsel Tara Hogan about the government's defense of tariff alterations President Donald Trump made in 2018 and said that the way the government interpreted the law on tariff modifications would not be applicable in his line of business.

Reyna's comments arose in a case appealing a July 2020 Court of International Trade opinion that found Trump violated certain procedural requirements of Section 232 tariff modifications when he increased the tariffs on Turkey from 25% to 50% (see 2007140030). Trump imposed the initial round of Section 232 tariffs on March 8, 2018, following a report from the commerce secretary on the effects of imported steel on national security. Five months later, Trump raised the tariff rate for steel from Turkey to 50%. CIT found this move violated a 1988 amendment to Section 232 placing stronger time limits and that Trump “acted without a proper report and recommendation by the [commerce] Secretary on the national security threat posed by imports of steel products from Turkey.”

During oral argument for the appeal, Reyna said that the government's interpretation of the law giving the president the ability to perpetually modify Section 232 tariffs was outdated following the 1988 amendments. “The statute was passed to eliminate the type of discretion that you’re saying the president has,” Reyna said to Hogan. “'To take such action and for such time as the president deems necessary,' that’s what you’re arguing, but that’s not what the law says anymore, that was changed. Congress changed that.”

Hogan said that while the 1988 amendment changed some language relating to the president's discretion over when he can modify the tariffs, the effect was the same. “We believe that the nature and duration language is change in terminology without a difference,” she explained. “That for such action and for such time is now the functional equivalent now is the president’s determination to identify the nature and duration of the action.” Reyna said, as a judge, it would be hard for him to say a change in terminology in the law makes no difference in effect.