Trade Cases
Leibowitz: Supreme Court Denies Hearing on Section 232—What’s to Come
Written by Lewis Leibowitz
June 23, 2020
Trade attorney and Steel Market Update contributor Lewis Leibowitz offers the following update on events in Washington:
On Monday, the Supreme Court announced its decision not to take the case of American Institute for International Steel (AIIS) v. United States, a case challenging the constitutionality of Section 232 of the Trade Expansion Act of 1962, as amended. This effectively ends the challenge on that ground to Section 232. Other challenges are still around and are likely to result in court decisions this year and next.
AIIS argued that the statute delegated legislative authority to the president to decide whether to impose tariffs and other trade restrictions without limitation, or, as lawyers say, without “intelligible principles.” This was always a steep hill to climb, for two reasons—first, the last time the Supreme Court struck down a statute because it delegated too much power to the president was in 1935, when it struck down the National Industrial Recovery Act, the signature New Deal legislation.
Second, the Supreme Court already had decided in a 1976 case that Section 232 as it then existed was constitutional because there were “intelligible principles” limiting the president’s authority. Both the Court of International Trade and its appellate court, the Federal Circuit, ruled that the 1976 Supreme Court case was binding precedent that no lower court could ignore. If the doctrine was going to succeed, the Supreme Court itself would have to overrule that old case. On Monday, we found out that the Court was not going to do that.
Section 232 is far from out of the woods. There are bills in Congress to constrict the president’s authority under Section 232 to impose tariffs and other restrictions in the name of eliminating a threat “to impair the national security.” Perhaps more immediate and more likely are several court cases that challenge the president’s actions on steel and aluminum. More cases are likely to follow, if the secretary of Commerce and the president further restrict imports in pending cases on autos and auto parts, transformers and components, mobile cranes and vanadium. There will also undoubtedly be litigation if the president reimposes aluminum tariffs on Canada, as he has recently threatened.
The courts have not been kind to the current administration’s signature initiatives and steel and aluminum may also fall victim. Recently, the Supreme Court, in setting aside the elimination of the DACA program, made new and expansive law on judicial review of executive decisions.
Litigation is always uncertain, of course, and no predictions regarding the outcome of any case will be made here. But for those who follow these cases, there are straws in the wind.
The Law Office of Lewis E. Leibowitz
1400 16th Street, N.W.
Suite 350
Washington, D.C. 20036
Phone: (202) 776-1142
Fax: (202) 861-2924
Cell: (202) 250-1551
Lewis Leibowitz
Read more from Lewis LeibowitzLatest in Trade Cases
Ternium chief say Mexico tariffs ‘irrational’
Vedoya said the proposed tariffs are "an irrational measure that would harm both their own industry and ours."
Price on Trade: Trump tariffs are no negotiating tool – and could come at lightning speed
We focused on trade actions the second Trump administration might take in a prior column. Since then, we have learned more about the individuals who will be leading these efforts. Recent nominations reinforce the president-elect’s statements that tariffs will feature prominently in the second administration and that trade actions will be unveiled at lightning speed.
Leibowitz on Trade: More tariffs on steel, aluminum could cost consumers a lot
Transition to a new administration is always uncertain. This one is more uncertain than most.
U.S. Steel says OCTG duty adjustment is too low
A newly adjusted anti-dumping duty on imports of oil country tubular goods (OCTG) from Argentina is too low, according to U.S. Steel. This past week, the Department of Commerce released the preliminary results of annual AD duty order reviews on OCTG from both Argentina and Mexico. It is reviewing imports during the one-year period that […]
Canada sees Chinese steel, ali imports falling ~50% on tariffs
The Canadian government estimates steel and aluminum imports from China will decrease by nearly 50% due to newly implemented tariffs.