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On March 25, 2019, the U.S. Court of International Trade (CIT) denied a challenge to the constitutionality of Section 232 of the Trade Expansion Act of 1962 in a lawsuit brought by the American Institute of International Steel and other steel importers. In a 2-1 <a href="https://www.cit.uscourts.gov/sites/cit/files/19-37.pdf" target="_blank" rel="noopener">decision</a>, the three-judge panel in American Institute for International Steel Inc. et al. v. United States et al., case number 1:18-cv-00152, rejected the plaintiffs&rsquo; claims that Section 232 &ldquo;constitutes an improper delegation of legislative authority in violation of Article I, Section 1 of the U.S. Constitution and the doctrine of separation of powers.&rdquo;
The panel determined that the court is bound by the U.S. Supreme Court&rsquo;s 1976 decision in Federal Energy Administration v. Algonquin SNG Inc., which concluded that Section 232&rsquo;s standards are &ldquo;clearly sufficient to meet any delegation doctrine attack&rdquo; and easily satisfied the intelligible principle standard for the delegation doctrine established by the Supreme Court in its 1928 J.W. Hampton, Jr., &amp; Co. v. United States decision.
The CIT panel acknowledged, however, that &ldquo;the broad guideposts of subsections (c) and (d) of section 232 bestow flexibility on the President and seem to invite the President to regulate commerce by way of means reserved for Congress, leaving very few tools beyond his reach,&rdquo; and added that &ldquo;[o]ne might argue that the statute allows for a gray area where the President could invoke the statute to act in a manner constitutionally reserved for Congress but not objectively outside the President&rsquo;s authority, and the scope of review would preclude the uncovering of such a truth.&rdquo; The panel concluded that &ldquo;such concerns are beyond this court&rsquo;s power to address, given the Supreme Court&rsquo;s decision in Algonquin.&rdquo;
The CIT decision was accompanied by a dubitante opinion issued by Judge Gary S. Katzmann. In his opinion, Katzmann admitted that the court is bound by the Supreme Court&rsquo;s 1976 Algonquin decision. Referencing previous Supreme Court decisions involving a delegation question and laying out the &ldquo;unbridled discretion&rdquo; of the president under Section 232, he noted, however, that &ldquo;[i]f the delegation permitted by Section 232, as now revealed, does not constitute excessive delegation in violation of the Constitution, what would?&rdquo;

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SmarTrade

U.S. Court of International Trade Upholds Constitutionality of the President’s Power to Implement Steel Tariffs under Section 232