Section 232 Case 'Ideal Vehicle' to Review Maple Leaf Deference Doctrine, Exporter Tells High Court
The president's authority to modify Section 232 tariffs doesn't allow the president to "transform" tariffs years after setting the duties "by newly restricting wholly distinct categories of derivative goods without any study and without any plausible connection to U.S. national security," exporter Oman Fasteners told the U.S. Supreme Court (Oman Fasteners v. U.S., Sup. Ct. # 23-432).
Sign up for a free preview to unlock the rest of this article
Export Compliance Daily combines U.S. export control news, foreign border import regulation and policy developments into a single daily information service that reliably informs its trade professional readers about important current issues affecting their operations.
In its reply in support of its petition for writ of certiorari, the company added that the case is an "ideal vehicle for reviewing" the constitutionally suspect "deference doctrine" shown to the president established under Maple Leaf Fish Co. v. U.S.
Oman Fasteners' petition marks the sixth time a party has tried to get the high court to review Section 232 actions taken under former President Donald Trump. Most recently, the court turned down the chance to review the same action challenged by Oman Fasteners: Trump's expansion of Section 232 duties to cover steel and aluminum "derivative" products that were set in violation of procedural time limits (see 2310300020).
Oman Fasteners said in its opening brief that the U.S. Court of Appeals for the Federal Circuit illegally granted the president a form of deference when it said it could strike the action down only if there were a "clear misconstruction of the governing statute" under Maple Leaf. In response, the government said this claim "misreads" the Federal Circuit's opinion. The president is not an agency subject to the Administrative Procedure Act, so his actions are not subject to judicial review under that statute, the government said (see 2311280030).
Oman Fasteners responded that it is "irrelevant" that the president is not an agency for APA purposes, invoking the court's impending review of the Chevron doctrine, another deference standard. "The government seems to assume (or perhaps wish) that if this Court overturns Chevron, it will do so only because Chevron is consistent with the APA," Oman Fasteners said, noting Chevron is being challenged "primarily on constitutional grounds."
The Maple Leaf deference standard "is even more constitutionally suspect" because it "defers to statutory terms adopted to constrain the Executive," whereas Chevron "at least extends deference to statutory terms that Congress has tasked the Executive Branch with implementing," the brief said. Additionally, Chevron comes after courts first exhaust all traditional construction tools, while in Maple Leaf "the squinting comes first," with the court looking for reasons to sustain the executive action, Oman Fasteners argued.
Oman Fasteners' Supreme Court appeal is an "ideal vehicle for reviewing that deference doctrine," the brief said, adding that the U.S. doesn't dispute that the standard confers the president with a "nearly boundless delegation of Congress's constitutionally assigned foreign-commerce authority." Should the court find in Chevron that courts "should apply the most natural meaning of statutory text without deference to the Executive branch agencies charged with implementing the provisions," it follows that the federal circuit shouldn't defer under Maple Leaf, the exporter said.