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Thompson Hine LLP, a full-service business law firm with approximately 400 lawyers in 11 offices, was ranked number 1 in the category “Most innovative North American law firms: New working models” by The Financial Times and was 1 of 7 firms shortlisted for The American Lawyer’s inaugural Legal Services Innovation Award. The firm has been recognized by the National Law Journal as a Legal Technology Trailblazer and featured by Bloomberg for its innovative service delivery models, which drive accuracy and predictability. The firm’s commitment to innovation is embodied in Thompson Hine SmartPaTHTM – a smarter way to work – predictable, efficient and aligned with client goals. For more information, please visit ThompsonHine.com and ThompsonHine.com/SmartPaTH.

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PrimeSource Building Products, Inc., a U.S. importer of various steel derivative products, filed an <a href="https://www.trumpandtrade.com/wp-content/uploads/sites/783/2020/02/PrimeSource-Building-Products-CIT-Section-232-Amended-Complaint-Feb-11-2020.pdf" target="_blank" rel="noopener noreferrer">amended complaint</a> in the U.S. Court of International Trade (CIT) on February 4, 2020, arguing that President Donald Trump&rsquo;s Proclamation No. 9980 is unlawful and unconstitutional. This proclamation expanded the implementation of steel and aluminum tariffs under Section 232 of the Trade Expansion Act of 1962 and directed the Secretary of Commerce to adjust these tariffs to also apply to certain steel and aluminum derivatives beginning on February 8, 2020 (see <a href="https://www.trumpandtrade.com/2020/01/president-trump-initiates-new-section-232-tariffs-on-imports-of-derivative-steel-and-aluminum-products/">Trump and Trade Update of January 28, 2020</a>). The PrimeSource case is one of many challenges to the Section 232 tariffs on steel derivatives, at least two of which, New Supplies and Trinity Steel, have filed motions with the consent of DOJ, to stay their cases pending the outcome of the PrimeSource case.
The PrimeSource complaint argues that the new tariffs violate the Section 232 procedural requirements and its right to due process under the Constitution because: (1)&nbsp;no opportunity for comment was provided in response to the Commerce secretary&rsquo;s determination the duties should be imposed; and (2) duties were implemented by the president beyond the prescribed Section 232 time frames. A summary of the complaint and related initial proceedings was provided in an earlier <a href="https://www.trumpandtrade.com/2020/02/u-s-importer-files-complaint-challenging-section-232-tariffs-on-steel-and-aluminum-derivative-products-parties-agree-to-injunctive-order-on-importers-goods-only/">Trump and Trade update on February 14, 2020</a>.
On March 20, 2020, the U.S. Department of Justice (DOJ) filed a <a href="https://www.thompsonhinesmartrade.com/wp-content/uploads/sites/783/2020/03/PrimeSource-Building-Products-CIT-Motion-to-Dismiss-March-20-2020.pdf" target="_blank" rel="noopener noreferrer">motion to dismiss</a> the complaint, arguing that the new tariffs did not violate the Section 232 procedural requirements or PrimeSource&rsquo;s right to due process because: (1) the secretary of Commerce&rsquo;s provision of facts and recommendations to the president are not subject to judicial review; and (2) the prescribed time frame to &ldquo;implement&rdquo; action within 15 days &ldquo;does not foreclose the President&rsquo;s authority to modify the action selected, as the President determines is necessary to protect national security.&rdquo;
These various court challenges to the Section 232 tariffs on steel derivatives have already resulted in a <a href="https://www.trumpandtrade.com/wp-content/uploads/sites/783/2020/02/PrimeSource-Building-Products-CIT-Injunctive-Order-Feb-13-2020.pdf" target="_blank" rel="noopener noreferrer">court order</a> blocking collection of the tariffs while the cases proceed. On March 20, the DOJ filed a <a href="https://www.thompsonhinesmartrade.com/wp-content/uploads/sites/783/2020/03/Oman-Fasteners-CIT-Motion-to-Dismiss-March-20-2020.pdf" target="_blank" rel="noopener noreferrer">motion to dismiss</a> in the now-consolidated Oman Fasteners, LLC and Huttig Building Products, Inc. case, similarly arguing that the president can modify Section 232 tariffs at any time to protect national security.
The cases previously referenced are PrimeSource Building Products Inc. v. United States et al., case number 1:20-cv-00032; Oman Fasteners, LLC v. United States, case number 1:20-cv-00037; Huttig Building Products, Inc. et al. v. United States et al., case number 1:20-cv-00045; Trinity Steel Private Ltd. v. United States et al., case number 1:20-cv-00047; and New Supplies Co., Inc et al. v. United States, case number 1:20-cv-00048, all before the U.S. Court of International Trade.

core/freeform

SmarTrade

Senior Legislative and Regulatory Policy Advisor

Scott E. Diamond

DOJ Argues President Can Modify Section 232 Tariffs at Any Time to Protect National Security