Domestically, businesses have had the opportunity to file tariff exclusion requests with the U.S. Department of Commerce, as they attempt to prove that certain products they import are not made in the appropriate quantity or quality here in the U.S.
But what about a domestic legal challenge to the steel tariff by virtue of a challenge of the statute that made the trade measure possible?
That, of course, would be Section 232 of the Trade Expansion Act of 1962, an infrequently used but powerful presidential tool that has dominated headlines since the Section 232 investigation was launched in April 2017.
In a press briefing Wednesday morning, the American Institute for International Steel (AIIS) — along with member companies Sim-Tex, LP, of Waller, Texas, and Kurt Orban Partners, LLC, of Burlingame, California — announced it filed a legal challenge to the Section 232 statute. In the motion filed with the United States Court of International Trade, the plaintiffs argue the statute is unconstitutional.
According to the AIIS, Section 232 “violates the doctrine of separation of powers and the system of checks and balances that the Constitution protects: there is no provision for judicial review of the President’s decisions in how he responds to the perceived threat to national security from imported steel.”
“In addition to the totally open-ended choice of how to counter any threat that imports may present, Section 232 allows the President to consider virtually any effect on the U.S. economy as part of ‘national security,’” AIIS President Richard Chriss said.
The suit, however, lays the blame on Congress’ shoulders.
“Unlike most cases brought against actions of the Trump administration, it is Congress—through its delegation of unfettered discretion to the President in this statute—and not the President that is the violator of the Constitution,” said Alan Morrison, lead counsel for the plaintiffs, in the prepared statement. “The President simply took advantage of the opportunity to impose his views on international trade on the American people, with nothing in the law to stop him.”
The American Iron and Steel Institute (AISI) responded to the announcement, defending the constitutionality of the Section 232 statute and dismissing the AIIS challenge.
“We believe this case is without merit and we are confident the court will reject this challenge to the constitutionality of the Section 232 statute,” said Thomas J. Gibson, president and CEO of AISI, in a prepared statement. “Congress acted within its constitutional authority when it authorized the president to take action to adjust imports when the Secretary of Commerce has determined that such imports threaten to impair the national security.”
The plaintiffs have asked for a three-judge panel to consider the motion.
“Plaintiffs believe that if the case is decided by a three judge court, there is a direct appeal to the Supreme Court, without having to go to the Federal Circuit, which is the normal review court for the Court of International Trade,” the AIIS release states. “That route would provide a speedier means of resolving this case, which is in the interest of all concerned.”
Check back here for updates as the legal challenge develops.