Solar Panel Exporters Challenge CAFC's Use of 'Maple Leaf' Standard, Ask for Full Court Rehearing

Solar panel exporters, led by the Solar Energy Industries Association, urged the U.S. Court of Appeals for the Federal Circuit to rehear their case on President Donald Trump's decision to revoke a Section 201 tariff exclusion on bifacial solar panels (Solar Energy Industries Association v. U.S., Fed. Cir. # 22-1392).

In a Jan. 11 petition for rehearing en banc, SEIA said the full court should review the case "to decide whether to change or overrule" the doctrine of deference afforded to the president established by the U.S. Supreme Court in Maple Leaf Fish Co. v. U.S. Under this "breathtakingly deferential standard," courts can cast aside presidential action "only if it involves a 'clear misconstruction of the governing statute,'" the brief noted.

A Federal Circuit three-judge panel invoked Maple Leaf in sustaining Trump's revocation of the tariff exclusion. In so doing, the judges "abdicated [their] constitutional role" and gave the president "primacy in interpreting statutes." Nothing in Supreme Court or Federal Circuit precedent allows the courts to do this, yet the Maple Leaf standard requires deference to the president's interpretation of "his own delegated authority in areas of vast economic and political importance," SEIA argued.

The panel ruled in November that Trump didn't clearly misconstrue the statute when revoking the bifacial solar panel tariff exclusion (see 2311130031). Judges Alan Lourie, Richard Taranto and Leonard Stark said the statute under which Trump made the revocation -- Section 2254(b)(1)(B) of the Trade Act of 1930 -- allows for trade-restricting modifications and not only trade-liberalizing ones.

SEIA argued that the provision allowed only trade-liberalizing modifications, allowing for safeguards to be "reduced, modified, or terminated." The Court of International Trade initially said the revocation didn't qualify as a tariff modification (see 2111160032), though the appellate court said the government's interpretation of the statute to allow for trade-restricting modifications wasn't a clear misconstruction of the law. The Federal Circuit noted its review is "very limited" because it's set in the context of foreign affairs.

In its petition for rehearing, SEIA criticized the Maple Leaf standard invoked by the appellate court, arguing it is clearly the judiciary's role, and not the executive's, to "say what the law is." While the Supreme Court defers to presidential fact finding and decisions in "appropriate circumstances," it "has never embraced a rule of deference to presidential statutory constructions when (as here) the case solely concerns adherence to statutory mandates and limits."

The exporters cited four decisions in which the Supreme Court deferred to presidential discretion but not to presidential "statutory interpretations." In each case, the high court didn't "suggest that its review was confined to whether the President had 'clear[ly] misconstru[ed]' the relevant statutes," the brief noted.

The Maple Leaf standard also cuts against Federal Circuit precedent, including the appellate court's Transpacific Steel v. U.S. decision, in which the court sustained the president's ability to expand Section 232 duties beyond procedural deadlines, SEIA said. In that case, the Federal Circuit "reviewed the challenged action against the statute’s 'text and context, including purpose and history,' without deferring to the President’s statutory interpretation," the brief said.

The "extreme deference" shown to the president in this case also "raises significant and recurring questions regarding the separation of powers," SEIA argued. Citing the Supreme Court's recent decision championing the "major questions" doctrine, the exporters said that while Congress can delegate authority to the executive, that authority is still subject to the conditions set by Congress. The question of whether the president has overstepped those limits must be answered by the courts, even in cases where deference to the president is warranted, the brief argued.

"Yet the Panel eschewed these well-established principles and abdicated the judicial role by allowing the Maple Leaf standard -- which was created by this Court, does not require genuine statutory ambiguity, and is not based on any delegation of interpretive responsibility to the President -- to drive its analysis," the exporters said. As a result, the case is "an ideal vehicle" for reconsidering Maple Leaf since the deferential standard "was so obviously outcome-determinative" and led to the court "uncritically deferring to the President's internally inconsistent interpretation of the statute."