US steel suppliers, importers ask Supreme Court to review Trump national security metal tariff order

16 Apr 2019 12:35 pm by Kat Lucero

A group of US steel suppliers and importers is seeking to bypass an appeal and take its constitutional challenge to the Trump administration’s national security metal tariff order directly to the nation’s highest court.

The American Institute for International Steel, or AIIS, Sim-Tex and Kurt Orban Partners, in an unusual move, filed a petition last night, asking the Supreme Court to review their lawsuit challenging President Donald Trump’s use of national security authority under Section 232 of the Trade Expansion Act of 1962 to impose tariffs on steel and aluminum imports last year.

The plaintiffs saw their suit rejected by a US Court of International Trade panel in March and are now seeking to move the appeal directly to the high court, rather than following the typical route of first going through the Court of Appeals for the Federal Circuit.

The new request attempts to bypass that “unnecessary and ultimately inconclusive step,” the petition said, so the Supreme Court can directly weigh in on the constitutionality of Section 232 as it relates to the administration’s metal tariff orders. The petition said such a move would be “an extraordinary step, warranted in only the most exceptional of circumstances.”

The steel producers and importers filed suit in US trade court in June 2018, arguing Congress gave the executive branch too much power under Section 232 nearly six decades ago. They said this was a violation of the US Constitution’s separation of powers or delegation doctrine, because the law lacked an “intelligible principle” or guidance to help the president's decision-making.

Without such guidance in Section 232, the plaintiffs said the law has allowed Trump to impose the metal tariffs that, the plaintiffs said, have disrupted the global manufacturing supply chain and the international trade system — given that the president has also used Section 232 to potentially impose new tariffs on car and car part imports.

A CIT three-judge panel heard — unusual for the single-jurist trade court — and rejected plaintiffs’ arguments in late March. In two separate but similar opinions, the judges said they are bound by the Supreme Court's 1976 decision in Federal Energy Administration v. Algonquin SNG, which held the White House does have broad discretion to invoke the Section 232 national security authority — thus upholding the administration’s metal tariff orders.

The steel producers and importers are asking the Supreme Court to review two main issues: Whether the CIT erred in ruling the 1976 decision limits the trade court’s decision-making powers; and whether Section 232 lacks any intelligible principle and, therefore, violates the Constitution’s separation of powers principle.

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