Amicus Brief Backs Full Court Rehearing of Section 232 Case at Federal Circuit

Five steel companies filed an amicus brief at the U.S. Court of Appeals for the Federal Circuit in support of a full court rehearing in a critical case on presidential power regarding the Section 232 steel and aluminum tariffs. The brief, filed Sept. 7 by Oman Fasteners, Huttig Building Products, Koki Holdings America, J. Conrad and Metropolitan Staple, was accepted by the appellate court Sept. 9. The five companies tap into the dissenting opinion at the Federal Circuit along with the Court of International Trade's original ruling to make the case that the appellate court erred in finding that the president could hike the Section 232 duties on Turkish goods well beyond procedural time limits (Transpacific Steel LLC, et al. v. United States, Fed. Cir. #20-2157).

In July, the Federal Circuit said that the president can impose greater Section 232 national security tariffs beyond the 105-day time frame for action set out in the statute so long as this action is part of a “plan of action” carried out over a period of time following any time limits (see 2107130059). Transpacific Steel, the lead plaintiff in the case, had challenged President Donald Trump's decision to raise the Section 232 duties on Turkish steel from 25% to 50% beyond the 105-day limit kicked off by the commerce secretary's report to the president on the need for the tariffs. Transpacific then filed for a full court rehearing of the case, which saw one judge, Judge Jimmie Reyna, issue a strong dissent (see 2108250022).

Backing this contention, the five amici curiae argue that the majority in the Federal Circuit decision circumvented the plain text of Section 232. “Congress instructed the President to act swiftly and comprehensively, not dole out incremental action at times of his choosing,” the brief said. “The majority circumvents this unambiguous instruction by conceptualizing a 'compound command' whereby the President’s 'violation of the temporal obligation imposed by' Congress 'does not necessarily negate' his authority to act.

“This grammatical exercise misses the mark,” the brief continued. “The majority reasons that '[m]ost people would understand the directive ‘return the car by 11 p.m.’ to require the return of the car even after 11 p.m.,' but overlooks that Section 232 ensures that the President tenders the entire car by the time it will be needed, rather than three wheels today and perhaps the trunk next Tuesday.”

In 1988, Congress amended Section 232 to impose the time limits under scrutiny today. While the legislative history reveals that the purpose of the time limits was to tackle inaction, it also shows that strict time limits on presidential action was the best way to achieve Congress' intended results, the brief said. “The legislative history elucidates what should already be clear from the plain text: Congress concluded that the best way to ensure the President acts quickly is to place meaningful temporal limits on the authority to act.”