CAFC Invites US to Respond to Petition for Rehearing in Suit on Revocation of Safeguard Exclusion

The U.S. Court of Appeals for the Federal Circuit on Jan. 19 invited the U.S. to respond to a petition from solar panel exporters, led by the Solar Energy Industries Association, to reconsider the case on President Donald Trump's decision to revoke a Section 201 tariff exclusion on bifacial solar panels. The court asked for a response by Feb. 2 (Solar Energy Industries Association v. U.S., Fed. Cir. # 22-1392).

In their petition, the exporters 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 standard, the courts can set aside presidential action "only if it involves a 'clear misconstruction of the governing statute,'" the brief said (see 2401120034).

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.