The Trump administration on Tuesday asked the U.S. Supreme Court to shut down a challenge to the Cold War-era law the president has used to set tariffs based on national security, arguing the high court has already given its blessing to the statute and there’s no need to revisit it.
A steel importers’ group looking to erase the 25% levy that President Donald Trump imposed in 2018 petitioned the high court to intervene last month, asserting that the law in question — Section 232 of the Trade Expansion Act of 1962 — violates the Constitution because it improperly gives away congressional authority over trade to the executive branch.
The case is a test of the Constitution’s so-called nondelegation clause, a wonky area of legal interpretation that hasn’t been successfully argued since the 1930s. The government has been quick to point out that not only are nondelegation challenges rarely successful, but the high court has also already rejected such a challenge with regard to Section 232 in a 1976 case called Federal Energy Administration v. Algonquin.
The American Institute for International Steel unsuccessfully attempted to differentiate its case from the Algonquin case before a special three-judge panel at the U.S. Court of International Trade, which held that Algonquin does apply even as it raised questions about Trump’s use of the law.
But the government held firm to its argument in Tuesday’s brief, saying the courts have repeatedly given the executive branch wide latitude in making policy decisions in the name of national security, and that the high court did just that when it decided Algonquin.
“The line between a permissible grant of discretion to the executive and an impermissible delegation of legislative power ‘must be fixed according to common sense and the inherent necessities of the governmental coordination,’” the government wrote. “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.’”
Supreme Court precedent dating to 1928 stipulates that Congress is allowed to delegate some of its responsibilities to the White House, but that it must give the executive branch an “intelligible principle” to guide its decision making.
The institute claims that Section 232 has no such principle, noting the law sets no firm criteria for what constitutes a national security threat and places no limits on the restrictions that the president may put in place for those imports.
The government sharply countered that assertion Tuesday, noting that Section 232 first requires an investigation to determine whether a security threat exists and lists a number of factors — including the nation’s overall economic health — that the president must consider before taking action.
Several pages of the government’s brief also urged the justices to reject the institute’s petition because the industry group is looking to leapfrog the appeals level and proceed straight from the CIT to the high court.
But George Washington University law professor Alan Morrison, who is spearheading the institute’s legal team, said the CIT’s opinion made clear that with Algonquin looming as the main obstacle, the Supreme Court alone has the ability to resolve the case, and that arguing before the Federal Circuit will only delay the inevitable.
“To have it percolate before three more Article III judges who are going to be faced with the same dilemma of Algonquin … on a matter that only the Supreme Court can answer doesn’t make any sense,” Morrison told Law360, adding that he will make a filing next week attempting to get the case into the court’s final conference scheduled for June 20.
The American Institute for International Steel and importers Sim-Tex and Orban are represented by Alan Morrison of the George Washington University School of Law, Donald B. Cameron and R. Will Planert of Morris Manning & Martin LLP and Gary N. Horlick of the Law Offices of Gary N. Horlick.
The government is represented by U.S. Solicitor General Noel Francisco, Assistant Attorney General Joseph H. Hunt, and U.S. Department of Justice attorneys Jeanne E. Davidson and Tara K. Hogan.
The case is American Institute for International Steel Inc. et al. v. U.S. et al., case number 18-1317, in the Supreme Court of the United States.
