Leibowitz on Trade: Supreme Court Declines Case Challenging Section 232—For Now

The Court’s refusal to push the process is hardly a surprise. While the Supreme Court has the authority to take a case prior to normal appellate review, it very rarely does so. U.S. v. Nixon, the famous “Nixon tapes” case, is one that comes to mind. But that was indeed extraordinary. 

The denial of the petition by itself only means that the case will take longer to reach the Supreme Court. None of the Justices explained the Court’s decision—that is customary. Therefore, the denial is not a comment on the merits of the case. Moreover, the decision in the Gundy case, which I mentioned a couple of days ago, clearly suggests that the issue of unconstitutional “delegation” of legislative power is a very current issue with the Court. 

It is probably fruitless to speculate on anything but the timing of the case. For those who were hoping for the steel tariffs to go away soon, those hopes are likely to be frustrated by this case. The Court of Appeals decision will take the better part of a year to reach a conclusion. If the Court of Appeals concludes that binding Supreme Court precedent controls the constitutional issue, the Supreme Court will get another crack at the case. And, if the Court of Appeals finds that the 1976 case of Algonquin is not controlling precedent, the government surely will appeal that decision to the Supreme Court. By the time the high court decides the case, the 2020 election is likely to be over. 

In the meantime, it will be worth following the litigation over 232. No telling what might happen. 

Lewis Leibowitz

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