Five Republican Senators Push SCOTUS to Take Up Key Section 232 Case

Five Republican Senators filed an amicus brief on Dec. 15 with the U.S. Supreme Court, urging it to take up a case over the limits of the president's authority under the Section 232 national security tariff statute. The brief, signed by Sens. Pat Toomey, R-Pa.; Mike Crapo, R-Idaho; Bill Cassidy, R-La.; Mike Lee, R-Utah; and Ben Sasse, R-Neb., argues against a U.S. Court of Appeals for the Federal Circuit opinion spurning time limits imposed in the statute. The time limits are crucial to ensuring that "Congress makes the major policy decisions regarding the regulation of foreign commerce," the lawmakers said.

The Federal Circuit decision came in a case, Transpacific Steel v. U.S., over President Donald Trump's August 2018 tariff hike on Turkish steel, from 25% to 50%, allegedly in violation of procedural time limits set out in the Section 232 statute. Section 232 says that the president can only impose such duties within 105 days of receiving a report from the Commerce Department that discusses the prospect of applying these tariffs. A three-judge CAFC panel overturned a Court of International Trade decision that originally found the rate hike to be improper because it came after the 105-day deadline (see 2007140046). The panel said that the president could defy the time limits if the duties were part of the report's original plan of action. Following a failed bid at a full court rehearing at the Federal Circuit (see 2109270019), the plaintiffs petitioned the Supreme Court to take the case (see 2111150061).

"Section 232 ‘national security’ tariffs are already often misused for matters with little to no national security relevance," Toomey said in a news release. "The executive branch has now effectively claimed nearly unlimited authority to adjust tariffs on an ongoing basis and based on a single, outdated Section 232 report. Not only is this action constitutionally suspect and in direct contravention of Congress’s intent in authoring the statute, but it also causes unnecessary economic harms to American workers. I strongly urge the Supreme Court to hear this case and to reconsider this misguided ruling by the Federal Circuit.”

The senators' brief centers its case around the constitutionality of the president's Section 232 actions and how the Federal Circuit's opinion violates the constitutional requirements of the Section 232 provision. By ignoring the express procedural limits established by Congress, the appellate court has neutered Congress' ability to "perform its role in our system of separated powers," the lawmakers said. Such "procedural limits thus must be enforced both as part of the courts’ duty to enforce the laws as Congress has written them and to ensure that Section 232 complies with this Court’s interpretation of the nondelegation doctrine, which prohibits Congress from transferring to a coordinate branch of government power vested in Congress," they said.

The senators also argue that the statute's time limits are needed to ensure that Congress is making the key decisions regarding the regulation of foreign commerce. "Time limits offer a bright-line rule that ties the President’s decision to the underlying justification in the Secretary’s report, and provides courts with a clear basis on which to determine the lawfulness of the action, even on challenging questions of national security," the brief said. "All [that] remains is for courts to do so."