Trade court to review constitutionality of steel tariffs

Date: Tuesday, September 25, 2018
Source: American Shipper

The U.S. Court of International Trade in a rare move gave the go-ahead this week to set up a three-judge panel to hear the American Institute for International Steel’s motion that questions the constitutionality of the White House’s imposition of Section 232 tariffs on steel imports.
   The three judges assigned to the panel are Claire R.Kelly, Jennifer Choe-Groves and Gary S. Katzmann.
   AIIS and two of its member companies — Waller, Texas-based Sim-Tex and Kurt Orban Partners of Burlingame, Calif. — filed a motion for summary judgment in late June with the court in an effort to stop the enforcement of tariffs currently being collected by Customs and Border Protection on U.S. steel imports. In that motion, the association challenged the constitutionality of the tariffs’ imposition by President Donald Trump.
   “Section 232 of the Trade Expansion Act allows the president nearly unfettered discretion to impose tariffs and create other trade barriers if he simply decides that imports threaten to impair U.S. national security,” said AIIS President Richard Chriss in a statement at the time of the motion’s filing in late June. “At the same time, the law allows tremendous latitude to the president in determining what constitutes a threat. The United States Constitution provides important checks on the president’s power, and the Section 232 trade provision stands in clear violation of that balance.”
   Alan Morrison, a professor at George Washington University Law School and lead counsel to the plaintiffs, explained that Congress should retract the authority permitted to the president under Section 232. 
   “Congress is required to retain those policy choices under our Constitution, a notion supported by the principles of separation of powers that animate it,” Morrison said.
   In a questions-and-answers sheet to its members explaining the purpose for filing the motion to the Court of International Trade, AIIS stated, “Our complaint is not directed at the president but at the statute and the failure of Congress in 1962 to provide an intelligible principle to guide the use of tariffs and quotas under Section 232.” The plaintiff named in the case is Customs and Border Protection.
   AIIS’ motion said the question of constitutionality related to Section 232 is most apparent in how the president decides which steel-exporting countries receive the 25 percent tariffs and others do not.
  AIIS is optimistic that with the motion to be decided by the Court of International Trade’s three-judge panel, the trade group could possibly take its appeal directly to the Supreme Court rather than going through the more time-consuming Federal Circuit.
  The Justice Department, which is representing CBP in this case, stated in its response to the motion for the three-judge panel that the “plaintiffs have a steep uphill climb to show that their constitutional challenge is ‘not insubstantial.’”

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