US Defends Presidential Power Under Section 232 National Security Statute at Supreme Court
The Supreme Court should deny a bid to review the president's authority under the Section 232 national security tariff provision, the U.S. said in a Feb. 17 reply brief. Arguing that greater deference and flexibility are accorded the president in a national security context, the Department of Justice told the nation's highest court that the president lawfully adjusted tariff action under Section 232 beyond procedural timelines. The Supreme Court also previously ruled that Section 232 isn't an improper delegation of authority and the petitioners haven't shown this decision to be wrongly decided, the brief said (Transpacific Steel LLC, et al. v. United States, U.S. #21-721).
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The case being appealed, Transpacific Steel v. U.S., concerns President Donald Trump's August 2018 tariff hike on Turkish steel, from 25% to 50%. The Court of International Trade ruled against the increase, finding that it came after the relevant deadline. Under 19 USC 1862, the president must decide whether to impose tariffs 90 days from a Commerce Department report on the need for such restrictions, then must implement the tariffs within 15 days (see 2007140046).
A three-judge panel at the Federal Circuit overturned the CIT decision, finding that as long as the tariffs continue their original purpose as laid out in the Commerce report, the president has the authority to hike tariffs (see 2107130059). The majority said that this was the case with Trump's Turkish tariff hike. Three companies -- Transpacific Steel, Borsuan Mannesmann and The Jordan International Company -- then appealed this decision to the Supreme Court in November 2021 (see 2111150061).
The petition argues that the clear statutory deadlines preclude presidential action beyond these limits and that any subsequent tariff action after this 105-day deadline requires a new report from the Commerce Secretary. DOJ said that the power to take regulatory action typically comes with the power to amend it. "It would have been especially odd in the present statutory context for Congress to foreclose the President from responding to changed circumstances or new information. Section 232 deals with foreign policy and national security, settings in which flexibility to address changed circumstances and new information is especially vital," the brief said.
The U.S. also told the Supreme Court that even if the president misses this 105-day deadline, their ability to take action under that provision doesn't simply disappear. In fact, Supreme Court precedent established that "duties are better carried out late than never," the U.S. said. This sentiment has been echoed in other litigation over presidential authority under Section 232 (see 2201040024).
The petitioners also argued that Section 232 is a violation of the non-delegation doctrine, as Congress sent too much of its power to the executive. A key case on Section 232 decided by the Supreme Court, Federal Energy Administration v. Algonquin SNG, said that the tariff statute sets an "intelligible principle," thus complying with the Constitution, DOJ said. Also, the 105-day deadline was imposed after the Algonquin decision, so if the conditions were enough then, to not find improper delegation, they should be enough now, DOJ said. The petitioners also haven't shown this case to be wrongly decided, the brief argued.
The context of national security necessitates greater deference to the president, DOJ said. "If there is any area in which common sense and the inherent necessities of governmental coordination support a grant of discretion to the President, it is the area in which Section 232 operates: 'national security,'" the brief said. "It would be 'unreasonable and impracticable to compel Congress to prescribe detailed rules,' beyond those set out in Section 232, to constrain the President’s power to adjust imports that threaten to impair the national security."