Trade Cases

AIIS Seeks Supreme Court Ruling on Section 232

March 26, 2020

The American Institute for International Steel is asking the Supreme Court to hear its challenge to the constitutionality of Section 232 following the loss of two appeals in the lower courts.

“We are heartened that the Court of International Trade recognized that Section 232, in the court’s words, ‘seem[s] to invite the President to regulate commerce by way of means reserved for Congress,’” said AIIS President Richard Chriss. “Unfortunately, the court also found that a 1976 Supreme Court decision foreclosed closer review of the merits of our constitutional claim by the CIT itself. But we remain convinced that, as one of the judges wrote today in a separate opinion, ‘it is difficult to escape the conclusion that the statute has permitted the transfer of power to the President in violation of the separation of powers.’ We are appealing immediately in order to continue making that argument.”

The Court of International Trade rejected the AIIS appeal last month citing a precedent set by the 1976 Algonquin case regarding restrictions on imports of oil. In that case, the court found that the president has discretion in setting import adjustments to protect national security and that the determination to do so “is not qualified by any language or standard.”

AIIS believes that Algonquin should not serve as a binding precedent in its challenge of the Section 232 statute.

Says AIIS in its petition, “Because of the broad language in Algonquin, only this Court can decide whether Section 232 violates the nondelegation doctrine. Moreover, although Algonquin dealt with delegation only under Section 232, unless this Court intervenes, that opinion — as well as lower court opinions like those in this case — will be used by the Executive Branch to argue that delegation challenges to other statutes are similarly foreclosed.”

The absence of “substantive boundaries,” the petition continues, “presents the question: if Section 232 does not violate the nondelegation doctrine, is there any legislative authority that cannot be delegated by Congress to the President?”

In a Supreme Court decision in Gundy v. United States, regarding delegation of authority to the attorney general, the court “unanimously reaffirmed the importance of limits in delegation,” said AIIS. Although the delegation of authority in the Gundy case was not found to violate nondelegation doctrine, the importance of separation of powers was noted by Justice Neil Gorsuch in a dissenting opinion.

“If the separation of powers means anything, it must mean that Congress cannot give the executive branch a blank check to write a code of conduct governing private conduct for a half-million people,” said Gorsuch who was joined by Chief Justice John Roberts and Justice Clarence Thomas.