Steel Importers Take Section 232 Tariff Challenge to Supreme Court
A group of steel importers will take their challenge of Section 232 tariffs on iron and steel products to the Supreme Court, according to a petition for certiorari dated April 15. The American Institute for International Steel and two of its members argue in the filing that their recently filed U.S. Court of Appeals for the Federal Circuit appeal would be a waste given that the case would likely end up before the Supreme Court anyway. They also say the ongoing harm to the steel industry and the potential for new Section 232 tariffs on cars and auto parts mean a final decision is needed as soon as possible.
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AIIS makes its case on two grounds. First, it says the Supreme Court’s 1976 decision in Algonquin, which the Court of International Trade had ruled was binding precedent that held Section 232 was constitutional (see 1903250032), was actually more limited. That ruling actually only found the president’s decision to impose licensing fees under Section 232 was constitutional, not that the whole law was, the AIIS says. Second, as in its case before the trade court, AIIS makes the argument that the delegation of powers by Congress of Section 232 authority is an unconstitutional violation of the separation of powers principle and checks and balances established by the U.S. Constitution.
Contrary to some speculation, the petition does not argue the Supreme Court should take the case because of a legal provision that allows direct appeals of cases decided by three-judge district court panels (see 1809200040). That provision applies when the case is required by Congress to be heard by three judges, which isn’t the case here. Instead, AIIS seeks a Supreme Court hearing “in advance of judgment” under a separate legal provision.
That “extraordinary step” is warranted because having a second three-judge panel at the Federal Circuit “hear the same case is a waste of judicial resources, especially because the decision of the CIT as to the scope of the ruling in Algonquin can only be authoritatively determined by this Court,” AIIS said. Allowing Section 232 to stand would also mean “Congress will be permitted to assign the President the unchecked power to make any laws regarding taxation and regulation of foreign commerce, as he sees fit, in violation of the fundamental principle of separation of powers,” AIIS said.
Finally, the matter is urgent because of the ongoing injury to industry, as well as President Donald Trump’s pending decision on whether to set Section 232 tariffs on automobiles and auto parts. “It is therefore essential for everyone -- the President, Congress, and every person whose livelihood is dependent on imports of these products -- to know whether section 232 is constitutional,” the petition said.
Should the Supreme Court find Section 232 unconstitutional, AIIS members who pay the 25 percent tariff may be able to obtain refunds of those payments, the petition said. However, “they will not be able to recover their lost profits from reduced sales or lower profit margins and their workers will not be able to recover lost wages resulting from reduced hours of work. Moreover, many AIIS members do not themselves purchase imported steel, but their businesses are involved in various phases of the transportation of imported steel,” AIIS said.
AIIS hopes the Supreme Court will decide whether to hear the case in June before it takes its summer recess, said its head lawyer, George Washington University law professor Alan Morrison. He declined to comment on what would happen if the Supreme Court doesn’t take the case.
Email ITTNews@warren-news.com for a copy of the petition.