Supreme Court and National Security — Are Trade Actions Immune from Review?


The U.S. Court of Appeals for the Federal Circuit concluded recently that §232 of the Trade Expansion Act of 1962 does not offend the non-delegation doctrine. Thus, upholding President Trump’ steel tariffs. But the story on §232 and the non-delegation doctrine is not over.

Shortly after the Federal Circuit issued its decision the American Institute for International Steel announced that it would seek review by the Supreme Court.

Although several members of the court have expressed an interest in revisiting the non-delegation doctrine, the Supreme Court has often avoided resolving issues involving national security. But not always by any means. Just think about cases involving the rights of Guantanamo detainees. We’ll see.

The Federal Circuit Court relied on an old case (Algonquin 1976) to uphold President Trump’s actions. From a different era. And was very narrow as to both the executive action examined and international consequences.

By the way, WTO cases are pending also involving President Trump’s steel tariffs and national security. Those actions created a diplomatic crisis involving international commerce not existing in the earlier 1970’s case.

Opinion of the Federal Circuit —

About Stuart Malawer

Distinguished Service Professor of Law & International Trade at George Mason University (Schar School of Public Policy).
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