To me, the recent skirmish in the Court of International Trade over a newer case, concerning Turkish steel tariffs, indicates that the court is clearly moving to taking a more aggressive view of the legality of the President’s authority under §232. Perhaps, not declaring that provision unconstitutional, but holding the President’s action to a higher standard than previously.
Last week the United States Court of International Trade (CIT) denied the US government’s motion to dismiss a case challenging President Donald Trump’s move to double the tariff imposed on imports from Turkey.
The court seemingly rejected the government’s argument that all the President has to do is to indicate is “a general need” for national security tariffs. The court clearly stated that an “expansive view ” of §232 is mistaken. It also forcefully concluded that the President needs to conform to the procedural requirements of §232.
(The failure to comply with the statutory time period, to act timely after receiving the Commerce Department’s report, concerning Trump’s threatened auto tariffs on the EU, may well prove to be fatal in that matter. But that’s another story.)
Here are a two quotes from the Court of International Trade recent opinion:
“The president’s expansive view of his power under Section 232 [trading regulations] is mistaken… Section 232 requires that the president not merely address a threat to national security; [he] must do all that, in his judgment, will eliminate it.”
“Although the statute grants the president great discretion in deciding what action to take, it [restricts] the president’s power both substantively, by requiring the action to eliminate threats to national security caused by imports, and procedurally, by setting the time in which to act.”
The US government requested that the CIT dismiss the case, arguing that the president proclaimed the increase in tariffs lawful and “a general need.” But the CIT denied the government’s motion and the case will continue to move forward at the court.
Slip Opinion, Transpacific Steel (CIT) (Nov. 15, 2019).
“New Section 232 National Security Case in Court of International Trade — Turkish Tariff Increase.” American Metal Market (Nov. 19, 2019).
Malawer, “Trump, Trade and Federal Courts.” China and WTO Review (Sept. 2019).
Malawer, “Section 232 Litigation in the U.S. Court of International Trade and President Trump’s Trade Policies. “ CHINA & WTO REVIEW (Feb. 2019).