US Says No CAFC Rehearing in Solar Panel Tariff Case, Standard Statutory Construction Tools Used

The U.S. told the U.S. Court of Appeals for the Federal Circuit on Feb. 21 that solar companies and industry groups led by the Solar Energy Industries Association failed to show that an en banc rehearing was needed for a decision upholding President Donald Trump's revocation of a tariff exclusion for bifacial solar panels (Solar Energy Industries Association v. United States, Fed. Cir. # 22-1392).

Filing a response only after being prompted by the court (see 2401220027), the government contested SEIA's claim that the court improperly relied on a standard of presidential deference established by the Supreme Court in Maple Leaf Fish Co. v. U.S. This standard says courts may not cast aside presidential action, save for clear misconstructions of the law.

The U.S. argued that the court did not just "rubber-stamp" Trump's action and instead relied on the "traditional tools of statutory construction," including "dictionary definitions, Congress' use of the term 'modification' in other portions of the Trade Act, the structure and purpose of the safeguard statute, and legislative history." Even so, Maple Leaf's standard "simply reflects" the principle that if the "authorizing statute is capacious enough to include the President's actions, the Court will sustain the action."

In international trade issues, an element of foreign affairs, "congressional authorizations of presidential power should be given a broad construction" and not be limited by "anxious judicial blinders," the U.S. said, quoting Federal Circuit precedent. This court "has never suggested that traditional tools of statutory construction do not apply" or that the court can abdicate its role of saying what the law is, as SEIA suggests, the brief claimed.

A three-judge panel in the present case ruled in November that Trump didn't clearly misconstrue the statute when revoking the tariff exclusion (see 2311130031). The court said that the statute under which the president made the revocation -- Section 2254(b)(1)(B) of the Trade Act of 1930 -- allows for trade-restricting modifications and not just trade-liberalizing ones. SEIA filed for rehearing, claiming that the decision freed the court of its obligation to say what the law is and that cuts against the court's own precedent, under which it reviewed presidential trade action against the statute's "text and context, including purpose and history" (see 2401120034).

SEIA cited Transpacific Steel v. U.S., which dealt with presidential action under Section 232, as an example of this discretion. In response, the U.S. said that in both Transpacific and the decision under review, the court looked at "dictionary definitions, statutory structure, historical usage, and 'the broad remedial purpose' of the safeguard statute."

In its brief, SEIA also said that the panel "abdicated its role" in finding the meaning of the statute's phrase "on such basis," claiming that the president couldn't act since the petition he received from the domestic industry did not request relief "on such basis" that the domestic industry had made a positive adjustment to the safeguard. The court found that this phrase refers to either the industry's petition or to the president's own finding that the domestic industry had made a positive adjustment.

SEIA said that the panel felt "compelled to side with the President" due to Maple Leaf's limited deferential review standard. The government said in response that the panel did not just defer to Trump's reading of the statute, but instead "used standard tools of construction to initially assess the statutory meaning of the phrase 'on such basis.'"

SEIA also claimed that Congress can limit the president's delegated authority, but the U.S. said this claim "fails on many levels." Most "fundamentally," Congress can elevate "very large grants of its power over foreign commerce to the president," who also has his own constitutional power, the brief said. While this doesn't preclude judicial review, once the panel found that the president's actions conformed to a "permissible construction of the statute, the Panel correctly declined to 'interpose'" and "second-guess the" president's authority to make trade-restrictive modifications, the U.S. argued.

The U.S. said the case is a "poor vehicle for en banc consideration" since there are "alternative bases to sustain" the president's decision, including the fact that tariff exclusion revocation was a "trade-neutral" action and that any alleged procedural deficiencies in the domestic industry's petition would not invalidate presidential action.