Trade Cases

Supreme Court Declines to Hear AIIS Tariff Challenge

June 25, 2019

The Supreme Court on Monday rebuffed a challenge to the president’s use of Section 232 tariffs, declining to review a March CIT ruling.

In June 2018, the American Institute of International Steel and two of its member companies challenged the constitutionality of Section 232 of the Trade Expansion Act of 1962, charging the act provides the president too much discretionary control over tariffs and “violates the doctrine of separation of powers and checks and balances that the Constitution protects.”

In March, a three-judge panel of the U.S. Court of International Trade determined that the use by President Trump of Section 232 to impose aluminum and steel tariffs was legal. In their decision, however, the judges noted that Section 232 “seem[s] to invite the President to regulate commerce by way of means reserved for Congress.”

AIIS requested a three-judge panel due to a critical need for a resolution of the tariffs and to allow the decision to be appealed directly to the U.S. Supreme Court, bypassing the U.S. Court of Appeals.

The decision by the Supreme Court not to hear the case means the CIT decision will stand while the petitioners now take their challenge to the U.S. Court of Appeals for the Federal Circuit.

AIIS acknowledge that it is rare for the Supreme Court to agree to hear a case before a ruling by the Court of Appeals.

“We continue to believe that we have a strong legal case that Section 232 is unconstitutional,” said AIIS President Richard Chriss. “Once the Federal Circuit has spoken, we expect that the losing party will ask the Supreme Court to review that decision.”

Challenges to Section 232 Continue in Congress

Lawmakers are jumping into the fight to regain control over trade policy, working to pass legislation that would limit the president’s use of Section 232. Senators Pat Toomey (R-PA) and Rob Portman (R-OH) have both introduced bills that would limit presidential trade authority.

Sen. Chuck Grassley (R-IA) plans to introduce a compromise bill that would be ready in the next few weeks. In a call to reporters earlier this month, Grassley acknowledged that “Congress has delegated too much authority to the president of the United States.

“There’s absolutely no constitutional crisis that this president or any other president has created,” he said. “The constitutional crisis comes from the elected representatives of the people over the last 80 years making a dictator out of the presidency…let’s say making a kingship out of the presidency of the United States.”

Grassley added that any such legislation would not be looked at favorably by the president and will need a strong vote on the floor of the Senate to pass.