Importer Files Constitutional Challenge of Importer-Specific Section 232 Exclusion Process

A steel and aluminum importer filed a lawsuit April 21 challenging the importer-specific exclusion process for Section 232 tariffs on steel and aluminum products as unconstitutional. Thyssenkrupp says the exclusions, which, unlike Section 301 exclusions, are only granted to the importer that requested them, violate the “Uniformity Clause” of the Constitution.

In laying out part of Congress’ power of the purse, the Constitution at Article I, Section 8, says that: “The Congress shall have power to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the United States; but all duties, imposts and excises shall be uniform throughout the United States.” The Supreme Court has said that a tax or duty is uniform when it operates with the same force and effect in every place where the subject of it is found, the complaint says.

“Because the Commerce Department has failed to make exclusions from Section 232 duties uniformly available to all importers of the same merchandise, the duties imposed by the President and as administered by the Commerce Department do not have the same force and effect in every place where the subject of the tariff is found and, therefore, violate the Uniformity Clause,” Thyssenkrupp said.

And as with several other Section 232 challenges that have been filed since the tariffs took effect in 2018, Thyssenkrupp also challenges the underlying statute as an unconstitutional delegation of authority from Congress to the president.

Thyssenkrupp asks that the Court of International Trade declare “the current requestor-specific exclusion process unconstitutional,” and seeks refunds on any Section 232 tariffs it paid on goods for which other importers have been granted an exclusion. It also asks for an injunction stopping CBP from collecting Section 232 duties on any tariff provisions for which any importer has been granted an exclusion. Finally, Thyssenkrupp asks that the court declare Section 232 unconstitutional in general.

Email ITTNews@warren-news.com for a copy of the complaint.