SCOTUS' EPA Decision Could Benefit Section 301 Case, Trade Lawyer Says
The Supreme Court's key ruling that called into question federal agencies' authority to regulate major sectors of the economy if not explicitly delegated by Congress could positively impact plaintiffs in the massive case against the Section 301 China tariffs, Christopher Kane, partner at Simon Gluck, said in a LinkedIn post. Kane said he thought that the Office of the U.S. Trade Representative overstepped its statutorily delegated authority by not engaging in the mandated deliberations before imposing the tariffs. Since the tariffs rise to the level of affecting a major segment of the U.S. economy, the West Virginia v. EPA decision would reverse the USTR's actions, Kane said.
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The decision in the West Virginia v. EPA case was noted for embracing the "major questions doctrine," which says that federal agencies need the green light from Congress to tackle issues related to a "fundamental sector of the economy." While some trade lawyers have expressed skepticism over the claim that trade matters rise to the level of a major question (see 2207060068), Kane said that he believes the Section 301 duties do since they "affect foreign trade, labor, and domestic businesses, ALL of which are fundamental segments of the U.S. economy."
Kane said that he believes USTR acted beyond its authority on a major question regardng the economy by not engaging in the statutoril mandated deliberations and in its process of excluding products retroactively to the date of implementation. On the latter point, the post said that this action constituted a "non-legislative expansion of the Protest statute," thereby vindicating the plaintiffs in cases contesting the retroactive refund of Section 301 duties as well.