Petition for Writ of Certiorari — PrimeSource Building Products, Inc., Petitioner v. United States, et al.

Supreme Court briefJul 21, 2023

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No. 23-___

IN THE

PRIMESOURCE BUILDING PRODUCTS, INC.,

Petitioner,

UNITED STATES, ET AL.,

Respondents.

On Petition for a Writ of Certiorari to the United

States Court of Appeals for the Federal Circuit

PETITION FOR A WRIT OF CERTIORARI

Jeffrey S. Grimson

Kristin H. Mowry

Jill A. Cramer

Sarah M. Wyss

Bryan P. Cenko

MOWRY & GRIMSON,

PLLC

5335 Wisconsin Ave.,

Suite 810

Washington, DC 20015

Kevin K. Russell

Counsel of Record

GOLDSTEIN, RUSSELL &

WOOFTER LLC

1701 Pennsylvania Ave. NW

Suite 200

Washington, DC 20006

(202) 240-8433

kr@goldsteinrussell.com

QUESTIONS PRESENTED

The Trade Expansion Act of 1968 delegates

Congress’s constitutional power to set import duties

and regulate foreign trade to the President whenever

the President declares that imports “threaten to

impair

the

national

security.”

U.S.C.

§ 1862(c)(1)(A)(ii), (d). The only real constraints on the

delegation are procedural: the President can only act

in response to a public investigation and report by the

Secretary of Commerce, and he must “determine the

nature and duration of the action” he will take

“[w]ithin 90 days after receiving [that] report.” Id.

§ 1862(b), (c)(1)(A), (c)(2), (d). In 2018, President

Trump invoked the Act to impose tariffs on imports of

“steel mill products” (such as steel plate and pipe).

Two years later, he imposed tariffs on certain products

made from steel (e.g., nails) without undertaking any

of the Act’s required procedures.

Applying a

deferential standard of review, the Federal Circuit

found the action lawful. The questions presented are:

1. Whether separation of powers principles

require courts to resolve ambiguity in statutory limits

on delegations of vast legislative power to the

Executive in a way that constrains the delegation or,

as the Federal Circuit holds, courts must uphold the

President’s actions absent “a clear misconstruction of

the governing statute.”

2. Whether, under the proper standard of review,

the Trade Expansion Act of 1968 permitted the

President to impose tariffs on steel derivatives without

complying with the statute’s procedural prerequisites.

PARTIES TO THE PROCEEDING

Petitioner PrimeSource Building Products, Inc.,

was the plaintiff in the Court of International Trade

and appellee in the court of appeals.

Respondents the United States, Joseph R. Biden,

Jr., President of the United States, Gina M. Raimondo,

Secretary of Commerce, Christopher Magnus,

Commissioner of U.S. Customs and Border Protection,

and United States Customs and Border Protection,

Department of Commerce, were defendants in the

Court of International Trade and appellants in the

court of appeals.

Respondents Oman Fasteners, LLC, Huttig

Building Products, Inc., and Huttig, Inc., were

plaintiffs in the Court of International Trade and

appellees in the court of appeals.

CORPORATE DISCLOSURE STATEMENT

Petitioner is owned by PriSo Acquisition

Corporation and no other publicly held company owns

10 percent or more of stock in petitioner.

RELATED PROCEEDINGS

Petitioners’ appeal in the Federal Circuit was

consolidated with Oman Fasteners, LLC, et al v.

United States, et. al, No. 21-2252 (Fed. Cir.).

iii

TABLE OF CONTENTS

QUESTIONS PRESENTED........................................ i

PARTIES TO THE PROCEEDING ........................... ii

CORPORATE DISCLOSURE STATEMENT ............ ii

RELATED PROCEEDINGS ...................................... ii

TABLE OF AUTHORITIES ........................................v

PETITION FOR A WRIT OF CERTIORARI..............1

OPINIONS BELOW ....................................................1

JURISDICTION ..........................................................1

RELEVANT CONSTITUTIONAL AND STATUTORY

PROVISIONS ..............................................................1

INTRODUCTION ........................................................2

STATEMENT OF THE CASE ....................................4

II.

Legal Background................................................ 4

Factual Background ............................................ 7

A. President Trump’s Initial Steel Tariffs ......... 7

B. The President’s Ad-Hoc Alteration Of Tariff

Levels Outside The Statutory Process ........ 11

C. The President’s Imposition Of Tariffs On

Steel Derivatives .......................................... 14

III. Procedural History ............................................ 16

REASONS FOR GRANTING THE PETITION........18

II.

The Court Should Grant Certiorari To Make

Clear That Courts Must Resolve Ambiguity In

Statutes Delegating Vast Legislative Power To

The Executive In Favor Of Restraining The

Delegation. ......................................................... 20

The Federal Circuit Could Not Have Upheld

The President’s Actions Applying Appropriate

Separation Of Powers Principles. ..................... 25

III. This Case Presents An Ideal Vehicle For

Resolving Questions Of Great Doctrinal And

Practical Significance. ....................................... 30

IV. At The Very Least, This Petition Should Be

Held For Loper. .................................................. 34

CONCLUSION ..........................................................35

APPENDIX

Appendix A, Court of Appeals Decision

(Feb 7, 2023) ...................................................... 1a

Appendix B, Court of International Trade Decision

(April 5, 2021) .................................................. 19a

Appendix C, Court of International Trade Decision

(January 27, 2021)........................................... 32a

Appendix D, Order Denying Rehearing En Banc

(June 22, 2023) .............................................. 151a

Appendix E, Statutory Appendix .......................... 154a

Cases

TABLE OF AUTHORITIES

A.L.A. Schecter Poultry Corp. v. United

States, 295 U.S. 495 (1935) .................................... 21

Ala. Assoc. of Realtors v. DHS,

141 S. Ct. 2485 (2021) ............................................ 22

Am. Inst. for Int’l Steel, Inc. v. United States,

806 F. App’x 982 (Fed. Cir.), cert. denied

141 S. Ct. 133 (2020) .......................................... 7, 11

Am. Inst. for Int’l Steel, Inc. v. United States,

376 F. Supp. 3d. 1335 (Ct. Int’l Trade

2019), aff’d, 806 F. App’x 982 (Fed. Cir.

2020) AIIS .................................................. 10, 11, 23

Biden v. Nebraska,

143 S. Ct. 2355 (2023) ........................................ 4, 22

Chevron v. NRDC,

467 U.S. 837 (1984) ................................................ 34

Federal Energy Administration. v. Algonquin

SNG, Inc.,

426 U.S. 548 (1976) ............ 10, 11, 19, 21, 23, 24, 29

Gonzalez v. Oregon,

546 U.S. 243 (2006) ................................................ 22

Gundy v. United States,

139 S. Ct. 2116 (2019) .......................... 22, 23, 25, 33

Loper Bright Enterprises v. Raimondo,

No. 22-451 .............................................................. 34

Maple Leaf Fish Co. v. United States,

762 F.2d 86 (Fed. Cir. 1985) .................. 3, 16, 20, 31

Paul v. United States,

140 S. Ct. 342 (2019) .......................................... 3, 23

Touby v. United States,

500 U.S. 160 (1991) ................................................ 24

Transpacific Steel LLC v. United States,

466 F. Supp. 3d 1246 (CIT 2020)........................... 13

Transpacific Steel LLC v. United States,

4 F.4th 1306 (2021), cert. denied, 142 S. Ct.

1414 (2022) ................... 12, 13, 16, 17, 19, 28, 29, 30

TRW Inc. v. Andrews,

534 U.S. 19 (2001) .................................................. 28

US Airways, Inc. v. McCutchen,

569 U.S. 88 (2013) .................................................. 31

Util. Air Regul. Grp v. EPA,

573 U.S. 302 (2014) ................................................ 22

Wayman v. Southard,

23 U.S. 1 (1825) ...................................................... 22

West Virginia v. EPA,

142 S. Ct. 2587 (2022) ................................ 21, 24, 30

Constitution and Statutes

U.S. Const. art. 1, § 1 .................................................. 1

U.S. Const. art. 1, § 8 .................................. 1, 2, 13, 18

19 U.S.C. § 1862 .......................................................... 1

19 U.S.C. § 1862(b)(2) .................................................. 5

19 U.S.C. § 1862(b)(2)(A) ..................................... 12, 14

19 U.S.C. § 1862(b)(3)(A) ............................................. 5

19 U.S.C. § 1862(c)(1) .................................................. 5

19 U.S.C. § 1862(c)(1)(A) ..................... 2, 4, 5, 6, 19, 25

vii

19 U.S.C. § 1862(c)(1)(A)(ii)................... 2, 9, 18, 22, 27

19 U.S.C. § 1862(c)(1)(B) ........................................... 25

19 U.S.C. § 1862(c)(1)(B)(2) ....................................... 25

19 U.S.C. § 1862(c)(2) ................................................ 25

19 U.S.C. § 1862(c)(3)(A) ..................................... 27, 28

19 U.S.C. § 1862(d) ............................................ 4, 5, 18

19 U.S.C. § 1865(c)(1)(B) ............................................. 6

19 U.S.C. § 1865(c)(2) .................................................. 6

19 U.S.C. § 1865(c)(3)(A) ......................................... 6, 7

28 U.S.C. § 1254(1) ...................................................... 1

28 U.S.C. § 1295(a)(5) ................................................ 20

28 U.S.C. § 1581(i) ..................................................... 20

Pub. L. No. 87-794, 76 Stat. 872 ................................. 2

Regulations

Notice Request for Public Comments and

Public Hearing on Section 232 National

Security Investigation of Imports of Steel,

82 Fed. Reg. 19,205 (Dep’t Com. Apr. 26,

2017) ................................................................. 7, 8, 9

Proclamation No. 9705, 83 Fed. Reg. 11,625

(Mar. 15, 2018) ................................................. 10, 17

Proclamation 9772, 83 Fed. Reg. 40,429

(2018) ...................................................................... 12

Proclamation 9980, 85 Fed. Reg. 5281

(2020) ...................................................... 9, 12, 14, 15

viii

U.S. Dep’t Commerce, Bureau of Indus. &

Sec., The Effects of Imports of Steel on the

National Security, 85 Fed. Reg. 40,202

(2018) .................................................................... 8, 9

Other Authorities

Donald J. Trump (@realDonaldTrump),

TWITTER (Aug. 10, 2018, 5:47 A.M.),

http://twitter.com/realdonaldtrump/status/

1027899286586109955 .......................................... 12

Megan Hogan & Yilin Wang, To fight

inflation, cutting tariffs on China is only

the start, Peterson Institute for

International Economics (June 3, 2022),

https://www.piie.com/ blogs/realtimeeconomic-issues-watch/fight-inflationcutting-tariffs-china-only-start ............................. 33

Https://taxfoundation.org/tariffs-trump-tradewar/#:~:text=

Tariffs%20on%20steel%20..................................... 32

Https://www.washingtonpost.com/business/20

19/05/07/ trumps-steel-tariffs-cost-usconsumers-every-job-created-experts-say/ ............ 33

Dan Pearson, Ending tariffs would curb

inflation — but why ignore the main

benefits?, The Hill (July 18, 2022),

https://thehill.com/opinion/international/35

63911-ending-tariffs-would-curb-inflationbut-why-ignore-the-main-benefits/ ....................... 32

Public Comments,

https://www.bis.doc.gov/index.php/documen

ts/section-232-investigations/1726-mergedpublic-comments/file ................................................ 9

Kadee Russ & Lydia Cox, Steel Tariffs and

U.S. Jobs Revisited,

https://econofact.org/steel-tariffs-and-u-sjobs-revisited (Feb. 6, 2020)................................... 32

Cass R. Sunstein, Nondelegation Canons, 67

U. Chi. L. Rev. 315 (2000) ............................... 20, 21

U.S. BIO 7, Yang v. United States, No. 02-136 ........ 34

United States Trade Commission, Economic

Impact of Section 232 and 301 Tariffs on

U.S. Industries (March 2023) .................... 15, 16, 32

PETITION FOR A WRIT OF CERTIORARI

Petitioner PrimeSource Building Products, Inc.

respectfully petitions this Court for a writ of certiorari

to review the judgment of the U.S. Court of Appeals

for the Federal Circuit.

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1a–

18a) is reported at 59 F.4th 1255. The Court of

International Trade’s decisions (Pet. App. 19a–31a,

32a-150a) are reported at 505 F. Supp. 3d 1352 and

520 F. Supp. 3d 1332.

JURISDICTION

The Federal Circuit issued its decision on

February 7, 2023. Pet. App. 1a. The court denied a

timely petition for rehearing en banc on June 22, 2023.

Pet. App. 152a. This Court has jurisdiction under 28

U.S.C. § 1254(1).

RELEVANT CONSTITUTIONAL AND

STATUTORY PROVISIONS

Article I, Section 1 of the Constitution provides:

“All legislative Powers herein granted shall be vested

in a Congress of the United States, which shall consist

of a Senate and House of Representatives.”

Article I, Section 8 of the Constitution provides in

relevant part: “The Congress shall have Power To lay

and collect Taxes, Duties, Imposts and Excises” and to

“regulate Commerce with foreign Nations . . . .”

The relevant portions of 19 U.S.C. § 1862 are

reproduced in Appendix E to this petition (Pet. App.

154a-161a).

INTRODUCTION

The Constitution assigns Congress the power and

responsibility to regulate trade with foreign nations

and to set “Duties, Imposes and Excises” on foreign

imports. U.S. Const. art. 1, § 8. The Trade Expansion

Act of 1962 delegated a substantial portion of that

power to the President to exercise largely as he sees fit

in the name of protecting national security and

economic welfare. See Pub. L. No. 87-794, 76 Stat. 872.

In particular, the statute authorizes the President to

take such “action that, in the judgment of the

President, must be taken to adjust the imports” when

he determines that those imports “threaten to impair

the national security.” 19 U.S.C. § 1862(c)(1)(A)(ii).

The constraints on the President’s delegated authority

are procedural—the President can act only after

receiving a report from the Secretary of Commerce

finding a threat to national security and must

“determine the nature and duration of the action” he

will take to restrict imports “[w]ithin 90 days after

receiving” that report. Id. § 1862(c)(1)(A).

In this case, the President followed that process

before imposing tariffs on imports of “steel mill

products,” that is, raw steel as opposed to products

made from raw steel, i.e., steel derivatives such as

nails or car parts.

Two years later, without

undertaking any of the statutory procedures, the

President imposed tariffs on an assortment of steel

derivatives as well. The Federal Circuit ultimately

sustained the new tariffs, applying circuit precedent

that required the court to uphold the President’s

exercise of his immense delegated authority unless

“there has been a clear misconstruction of the statute.”

Pet. App. 11a (quoting Maple Leaf Fish Co. v. United

States, 762 F.2d 86, 89 (Fed. Cir. 1985)).

This case presents the question whether that

method of judicial review is consistent with bedrock

separation of powers principles. Recognizing the risk

to our constitutional order posed by congressional

delegations of expansive legislative powers to the

Executive, this Court has established interpretative

principles, such as the major questions doctrine,

designed to ensure that at the very least, extreme

delegations of power are clearly intended by Congress.

There can be no question that the President’s exercise

of delegated authority in this case warrants that kind

of special separation of powers scrutiny — the statute

delegates unprecedented power to the Executive, with

virtually no guidance on how to use it. One might

think that courts would strictly construe the statutory

conditions on such extraordinary delegations lest the

judiciary permit an even greater injury to separation

of powers than Congress intended. But the Federal

Circuit applies the opposite rule, deferring to the

Executive’s view of the statutory limits on its own

authority unless it is clearly wrong.

This petition provides the Court an opportunity to

take the next step in its major-questions and related

separation of powers jurisprudence. The Court should

use it to make unmistakably clear that when

confronted by a statute delegating vast legislative

power to the Executive, courts must resolve ambiguity

in favor constraining the delegation, unless Congress

clearly provided otherwise. Cf. Paul v. United States,

140 S. Ct. 342 (2019) (Kavanaugh, J., respecting

denial of cert.) (noting the need for further

consideration of constitutional and “statutory

interpretation doctrine” to limit on congressional

delegation of “major national policy decisions” to the

Executive); cf. also Biden v. Nebraska, 143 S. Ct. 2355,

2376 (2023) (Barrett, J., concurring) (noting the

“ongoing debate about [the] source and status” of the

major questions doctrine); id. at 2378 (noting lack of

clarity in Court’s decisions).

STATEMENT OF THE CASE

Legal Background

Section 232 of the Trade Expansion Act provides

that if the President determines that “an article is

being imported into the United States in such

quantities or under such circumstances as to threaten

to impair the national security,” he shall “determine

the nature and duration of the action that, in the

judgment of the President, must be taken to adjust the

imports of the article and its derivatives so that such

imports will not threaten to impair the national

security.” 19 U.S.C. § 1862(c)(1)(A). The phrase

“national security” is broadly defined to include not

only “national defense requirements” but also the

“economic welfare of the Nation.” Id. § 1862(d). In

considering the nation’s economic welfare, the

President is directed to take into account a variety of

factors that tend to expand what counts as an import

threatening national security: “the impact of foreign

competition on the economic welfare of individual

domestic

industries;

and

any

substantial

unemployment, decrease in revenues of government,

loss of skills or investment, or other serious effects

resulting from the displacement of any domestic

products by excessive imports.” Ibid. The President’s

national security determination is not subject to

judicial review. See Pet. App. 16a-17a.

Section 232 includes little guidance on what the

President should do in response to the threat posed by

imports.

Instead, Congress enacted important

procedural constraints on the delegation. Section 232

permits the President to take action only after the

Secretary of Commerce conducts an investigation and

submits a formal report on the imports’ effects on

national security.

19 U.S.C. § 1862(c)(1).

conducting the investigation, the Secretary must

consult with the Secretary of Defense and

“appropriate officers of the United States.”

Id.

§ 1862(b)(2). If “appropriate,” the Secretary must

“hold public hearings or otherwise afford interested

parties an opportunity to present information and

advice relevant to such investigation.” Ibid.

The Act contemplates the investigation will be a

serious undertaking, giving the Secretary 270 days to

complete it. Id. § 1862(b)(3)(A). By that deadline, the

Secretary must publish a report in the Federal

effect of the importation of such article in such

quantities or under such circumstances upon the

national security and, based on such findings, the

recommendations of the Secretary for action or

inaction.” Ibid.

The President’s authority to exercise his

delegated powers is contingent on the Secretary

conducting this investigation and finding a national

security threat. Id. § 1862(c)(1)(A). The statute

further limits the time in which the President may

exercise those powers, providing that “[w]ithin 90 days

after receiving [the] report” finding a security threat,

“the President shall —”

(i) determine whether the President concurs

with the finding of the Secretary, and

(ii) if the President concurs, determine the

nature and duration of the action that, in the

judgment of the President, must be taken to

adjust the imports of the article and its

derivatives so that such imports will not

threaten to impair the national security.

Ibid. The statute then requires that if the President

determines to take action, he “shall implement that

action” within 15 days of his determination. Id.

§ 1865(c)(1)(B).

And within 30 days of the

determination, he “shall submit to the Congress a

written statement of the reasons why the President

has decided to take action, or refused to take action.”

Id. § 1865(c)(2).

Section 232 then identifies a single circumstance

in which the President can take a different action than

the one he chose within the 90-day deadline without a

new investigation from Commerce. Paragraph 3 of

subsection (c) provides that if the “action taken by the

President . . . is the negotiation of an agreement” to

limit imports, and either “no such agreement is

entered into” within 180 days or an agreement is

reached but “is not being carried out or is ineffective,”

then the President “shall take such other actions as

the President deems necessary.” Id. § 1865(c)(3)(A)

(emphasis added).

If that happens, then the

“President shall publish in the Federal Register notice

of any additional actions being taken under this

section by reason of this subparagraph.”

Ibid.

(emphasis added).

Beyond this provision, nothing in the Act

authorizes the President to take any actions other

than the ones decided upon within the 90-day period

and reported to Congress. However, if other or

additional action seems appropriate, nothing in the

statute prevents the President from requesting the

Secretary to conduct a renewed, expedited

investigation that would authorize the President to

determine whether the risk to national security still

exists and what actions would be appropriate in light

of the updated data and advice from the Secretary of

Defense.

II. Factual Background

A. President Trump’s Initial Steel Tariffs

1. In the Spring of 2017, the Secretary of

Commerce opened an investigation into steel imports. 1

In its response to the investigation, the Department of

Defense informed the Secretary that “U.S. military

requirements for steel and aluminum each only

represent about three percent of U.S. production.” 2

Therefore, the Department of Defense did not believe

that the levels of foreign steel and aluminum imports

See Notice Request for Public Comments and Public Hearing

on Section 232 National Security Investigation of Imports of

Steel, 82 Fed. Reg. 19,205 (Dep’t Com. Apr. 26, 2017).

Am. Inst. for Int’l Steel, Inc. v. United States, 806 F. App’x.

982, 985-86 (Fed. Cir. 2020) (quoting letter).

documented by the Secretary “impact the ability of

DoD programs to acquire steel or aluminum necessary

to meet national defense requirements.” Ibid. The

Secretary of Defense further stressed his “concern[]

about the negative impact” of the measures being

contemplated “on our key allies.” Ibid.

On January 11, 2018, the Secretary issued a

report finding that imports of “steel mill products,”

such as flat steel, steel pipe, and steel slabs threatened

national security. See U.S. Dep’t Commerce, Bureau

of Indus. & Sec., The Effects of Imports of Steel on the

National Security, 85 Fed. Reg. 40,202, 40,203-40,204,

40,209, 40,224 (2018). The Report explained that

regardless of any impact those imports may have on

military readiness, they “have adversely impacted the

steel industry” and thereby “are weakening our

internal economy.” Id. at 40,204. The Secretary then

recommended that the President impose measures

sufficient to “reduce imports to a level that should, in

combination with good management, enable U.S. steel

mills to operate at 80 percent or more of their rated

production capacity.” Ibid.

Throughout the report the Secretary examined

only the effect of imports of “steel mill products,” not

the effect of imports of derivative products made from

steel, such as nails, wire, or auto parts. See id. at

40,203. Thus, the initial request for public comments

did not mention derivatives or request any

information about the quantity of derivative imports

or their effect on domestic steel production. 3 Virtually

none of the more than 1,500 pages of public comments

addressed the question either. 4 The Report itself

conducted no analysis, and made no findings,

regarding the effects of derivatives on the domestic

steel industry. See 85 Fed. Reg. at 40,203-40,226. And

although the statute expressly authorizes the

President to take action to “adjust the imports of the

article and its derivatives,” the Secretary did not

propose any actions to reduce imports of steel

derivatives.

See 19 U.S.C. § 1862(c)(1)(A)(ii)

(emphasis added); 85 Fed. Reg. at 40,226.

Unsurprisingly, then, when the President issued

Proclamation 9705 accepting the report’s findings on

March 8, 2018, he imposed tariffs only on imports of

steel mill products and did not exercise his authority

to also limit imports of steel derivatives.

See

See Notice Request for Public Comments and Public

Hearing on Section 232 National Security Investigation of

Imports of Steel, 82 Fed. Reg at 19,205-07.

The public comments are collected online at

https://www.bis.doc.gov/index.php/documents/section-232investigations/1726-merged-public-comments/file. A handful of

comments advocated for duties on specific derivative products –

flanges, transmission and windmill towers, and circular steel

sawblades with diamond tips – without providing any analysis.

See Public Comments at 300, 397, 1359, 1594 (cites to pagination

in pdf file). None of those products was included in the eventual

order imposing tariffs on some steel derivatives.

See

Proclamation 9980, Annex II.

Proclamation No. 9705, 83 Fed. Reg. 11,625 (Mar. 15,

2018).

The tariffs the President did impose were

substantial—25% on all imported steel mill articles

from every country except Canada and Mexico, for

which he proposed to continue ongoing trade

negotiations. See id. at 11,626. As required by the

statute, the President’s proclamation was published in

the Federal Register and delivered to Congress. See

ibid.

2. Certain steel importers challenged the tariffs

in the Court of International Trade (CIT), arguing that

the Trade Expansion Act effected an unconstitutional

delegation of power to the President. Am. Inst. for Int’l

Steel, Inc. v. United States, 376 F. Supp. 3d. 1335 (Ct.

Int’l Trade 2019), aff’d, 806 F. App’x 982 (Fed. Cir.

2020) (AIIS). The CIT rejected the facial challenge,

finding itself bound by this Court’s 1976 decision in

Federal Energy Administration. v. Algonquin SNG,

Inc., 426 U.S. 548 (1976). In that case, this Court

concluded that a prior version of the Act provided an

adequate “intelligible principle to which the President

is directed to conform,” pointing to, among other

things, the statutory “preconditions to Presidential

action.” See 426 U.S. at 559.

The CIT expressed some discomfort with that

result, noting that the statute “seem[s] to invite the

President to regulate commerce by way of means

reserved for Congress, leaving very few tools beyond

his reach.” AIIS, at 1344. Judge Katzmann wrote

separately to voice his “grave doubts” about the

constitutionality of the Act in its present form and

under this Court’s modern precedents. Id. at 1347. He

noted that although this Court has sometimes upheld

statutes conferring significant trade authority on the

President, those statutes all “provided ascertainable

standards to guide the President.” Id. at 1351-52.

“What we have come to learn is that section 232,

however, provides virtually unbridled discretion to the

President with respect to the power over trade that is

reserved by the Constitution to Congress.” Id. at 1352.

He urged this Court to “revisit [the] assumptions”

underpinning Algonquin. Ibid. “If the delegation

permitted by section 232, as now revealed, does not

constitute excessive delegation in violation of the

Constitution,” he asked, “what would?” Ibid.

The Federal Circuit affirmed, agreeing that

Algonquin precluded the plaintiffs’ facial challenge.

See AIIS, 806 F. App’x 982, 989 (Fed. Cir.), cert. denied

141 S. Ct. 133 (2020). The court acknowledged,

however, that “[f]ive members of the Court have

recently expressed interest in at least exploring a

reconsideration of” the “intelligible principle”

standard. Id. at 990.

B. The President’s Ad-Hoc Alteration Of

Tariff Levels Outside The Statutory

Process

Although the statute required the President to

identify the “nature and duration of the action” he

would take in a written determination issued within

90-days of receiving the Secretary’s report, President

Trump repeatedly and dramatically changed his

response to steel imports long after the statutory 90day period expired.

1. Throughout 2018 and 2019, the President

issued a series of proclamations, altering or

eliminating the tariffs for particular countries and

products already subject to the actions.

See

Transpacific Steel LLC v. United States, 4 F.4th 1306,

1314-15 (2021), cert. denied, 142 S. Ct. 1414 (2022).

For example, on August 10, 2018, the President

doubled the tariffs on steel and aluminum imports

from Turkey. See Proclamation 9772, 83 Fed. Reg.

40,429 (2018). The Proclamation gave no reason for

singling out Turkey for increased tariffs, see ibid., but

in a tweet, the President implied that it was in

retaliation for Turkey allowing its currency to “slide[]

rapidly downward against our very strong Dollar! . . . .

Our relations with Turkey are not good at this time!” 5

In none of these cases did the Secretary of

Commerce conduct a renewed investigation, solicit

public comment, or issue a formal report. 6 Moreover,

as far as was publicly disclosed, neither the Secretary

nor the President consulted with the Department of

Defense or any other agencies or officials. Cf. 19

U.S.C. § 1862(b)(2)(A).

2. In 2020, the CIT invalidated the Proclamation

singling out Turkey for increased tariffs.

See

Donald J. Trump (@realDonaldTrump), TWITTER (Aug. 10,

2018, 5:47 A.M.), http://twitter.com/realdonaldtrump/status/

1027899286586109955.

Some Proclamations asserted that “the Secretary has

informed” the President of certain facts. See, e.g., Proclamation

9772, 83 Fed. Reg. at 40,429; Proclamation 9980, 85 Fed. Reg. at

5281. But to the extent those representations were made in

writing, those documents have never been made public.

Transpacific Steel LLC v. United States, 466 F. Supp.

3d 1246 (CIT 2020). The court majority explained that

“the temporal restrictions on the President’s power to

take action pursuant to a report and recommendation

by the Secretary is not a mere discretionary guideline,

but a restriction that requires strict adherence.” Id. at

1252.

A divided panel of the Federal Circuit reversed.

Transpacific, 4 F.4th at 1310. The majority concluded

that all the President must do within the statutory 90day period is adopt a “plan of action or course of

action,” with “choices to impose particular burdens in

the carrying out of the plan permissibly made later in

time.” Id. at 1321. The court acknowledged that the

“timing provisions were meant to prevent the

President from acting on stale information.” Id. at

1332. But it believed that “[c]oncerns about staleness

of findings are better treated in individual

applications of the statute,” suggesting courts would

develop their own time limits independent of those

Congress enacted. Ibid. The court found no staleness

problem in the case before it, however, because the

increased duties on Turkish steel were imposed “only

months after the initial announcement.” Ibid.

Judge Reyna dissented.

In his view, the

majority’s interpretation “expands Congress’s narrow

delegation of authority, vitiating Congress’s own

express limits, and thereby effectively reassigns to the

Executive Branch the constitutional power vested in

Congress to manage and regulate the Tariff.” Id. at

1336. (citing U.S. Const. art. I, § 8).

C. The President’s Imposition Of Tariffs On

Steel Derivatives

On January 24, 2020—more than two years after

the Secretary’s Steel Report—the President went a

significant step further, imposing a 25% tariff on

certain steel derivatives. See Proclamation 9980, 85

Fed. Reg. 5281 (2020). The Proclamation did not

purport to be based on the original Steel Report

findings (which, as noted, said nothing about steel

derivatives’ effect on national security and was based

on market data from 2017). See id. at 5281-82. 7 To

the contrary, the President justified the new tariffs on

developments occurring after the tariffs on steel mill

products went into effect. See id. at 5281.

In particular, the President reported that the

“Secretary has informed me that . . . imports of certain

derivatives of steel articles have significantly

increased since imposition of the tariffs and quotas”

and that these imports were “erod[ing] the customer

base for U.S. producers” of steel. Id. at 5282. In

response, the Secretary recommended reducing

imports of an eclectic mix of seven steel derivatives:

“nails, tacks (other than thumb tacks), drawing pins,

corrugated nails, staples (other than of heading 8305)

and similar articles,” as well as “bumper stampings of

steel” used in certain vehicles and “for tractors

suitable for agricultural use” (but not bumper

In the courts below, the Government disavowed any

argument that the Secretary’s informal findings and

recommendations relating to steel derivatives could satisfy the

“essential requirements of . . . 19 U.S.C. § 1862(B)(2)(A).” Pet.

App. 25a (citation omitted).

stampings for other kinds of tractors or construction

equipment). 85 Fed. Reg. at 5285. The proposal

omitted the vast majority of steel derivative products,

such as home appliances, factory equipment, and most

car parts. See ibid.

Although the Secretary made representations

about the amount and effects of derivative imports,

those findings were not the result of the statutory

investigative process and were made without the

benefit of any public input. There was no notice of the

investigation, no request for public comment, and no

public hearings. Moreover, for all that can be told,

there was no interagency consultation or input from

the Department of Defense. In addition, because the

Secretary’s findings were not memorialized in any

public report, its details were not subject to public or

congressional scrutiny. Accordingly, it is impossible to

tell, for example, whether the Secretary even

considered whether imports of this ad-hoc subset of

steel derivatives comprised a sufficient portion of the

demand for U.S. steel to make any meaningful

difference to the domestic steel industry. See id. at

5282; cf. United States Trade Commission, Economic

Impact of Section 232 and 301 Tariffs on U.S.

Industries 21-22 (March 2023) (“Economic Impact”)

(finding that the “defined derivative products

represent a small share of total imports,” accounting

for 2.3 percent of steel imports by value in 2021). 8

Available at https://www.usitc.gov/publications/332/pub5405.

pdf.

Nonetheless, the President accepted the

Secretary’s recommendation and imposed 25% tariffs

on the steel derivates the Secretary identified. Id. at

5283.

III. Procedural History

1. Petitioner is an importer and reseller of steel

derivatives such as steel nails and fasteners for the

homebuilding industry. Petitioner and others filed

suit challenging the validity of the steel derivative

tariffs in cases later consolidated before the CIT. Pet.

App. 3a-4a. In 2021, that court held the tariffs

unauthorized by statute because they were imposed

without compliance with Section 232’s process and

deadlines. Id. 4a.

2. The United States appealed, and the Federal

Circuit reversed. Id. 5a.

The court explained that under circuit precedent,

review of the President’s compliance with the Trade

Expansion Act is “available, but it is limited.” Id. 11a.

Specifically, “[f]or a court to interpose, there has to be

a clear misconstruction of the governing statute, a

significant procedural violation, or action outside

delegated authority.” Ibid. (quoting Maple Leaf Fish

Co. v. United States, 762 F.2d 86, 89 (Fed. Cir. 1985)).

The panel emphasized that “[t]his court has

repeatedly relied on the Maple Leaf formulation to

indicate the ‘limited’ scope of review of nonconstitutional challenges to presidential action.” Ibid.

(collecting examples).

The panel then upheld the President’s

interpretation of the statute, relying in large part on

its prior decision in Transpacific. The panel again

held that the only instance in which the President

requires an investigation and report from the

Secretary of Commerce is when he first announces his

decision to take some kind of action; after that, he can

make “adjustments of specific measures. . . in carrying

out the plan over time.” Pet. App. 12a (quoting

Transpacific, 4 F.4th at 1319). The court further

concluded that the original study and proclamation’s

failure to “address the effect of imports of derivatives

is immaterial.” Id. 15a. It was sufficient that applying

the tariff to these derivatives was “in line with the

announced plan of action . . . . to achieve the stated

implementation objective,” something the President

“could have used in the initial set of measures.” Id.

14a (emphasis added, citation omitted). Allowing the

President to make such alterations outside the

statutory process, the panel believed, “serv[es] the

‘evident purpose’ of § 232.”

Ibid. (quoting

Transpacific, 4 F.4th at 1323).

The court again recognized that refusing to apply

the statutory time limits to new actions could risk the

President acting on stale information. Id. 14a. And

it did not dispute that in this case, the new action in

2020 occurred more than two years after the

conclusion of the Secretary’s investigation, and nearly

two years after the President’s initial action against

steel mill products, far longer than the several months

the court found acceptable in Transpacific. See id. at

9a-10a. It nonetheless concluded that there was no

staleness problem here because the new action was

taken “in pursuit of the same goal first articulated in

Proclamation 9705” and because it purported to be “in

response to the ‘current information’ provided to the

President by the Secretary.” Id. at 16a. The court

acknowledged that the Government “declin[ed] to put

into the record the updated data the Secretary

conveyed to the President,” which remains undisclosed

to the public to this day. Ibid. But the panel concluded

that nothing in the statute required the President to

base his decision on information gathered through the

statutory process or to disclose the details of the

information he was acting on or how it was gathered.

Id. at 18a.

3. On June 22, 2023, the Federal Circuit denied

the challengers’ joint petition for rehearing en banc.

Pet. App. 151a.

REASONS FOR GRANTING THE PETITION

The Constitution addresses the power to regulate

foreign commerce and set import duties with unusual

precision, assigning both responsibilities to Congress,

not the President. U.S. Const. art. 1, § 8. Yet, the

Trade Expansion Act delegates the entirety of that

legislative power to the Executive whenever the

President declares that action “must be taken” to

ensure that “imports will not threaten to impair

national security.” 19 U.S.C. § 1862(c)(1)(A)(ii). If

there is an intelligible principle for the President to

apply in making those determinations, it could hardly

be less constraining. The statute defines “national

security” with surpassing breadth and malleability.

See id. § 1862(d). And Congress provided essentially

no guidance at all regarding what actions the

President should take in response to a threat. The

constraints on the delegation are procedural

requirements designed to ensure that the President

acts on the basis of a public investigation and informed

advice from relevant government officials.

In Federal Energy Administration v. Algonquin

SNG, Inc., 426 U.S. 548 (1976), this Court pointed to

those procedural prerequisites as essential to the

statute’s constitutionality. See id. at 559. Yet, the

Federal Circuit has now held that once the Executive

goes through the statutory process once, for years

thereafter the President may take any “action that, in

the judgment of the President, must be taken to adjust

imports” without any statutory constraint. 19 U.S.C.

§ 1862(c)(1)(A). This now includes the power to

dramatically change the amount of duties imposed, 9 to

abandon import duties altogether in favor of a

completely different response, 10 to change the

countries subject to the action, 11 and to extend the

restrictions to products that were not the subject of the

initial investigation and Presidential action. 12

In reaching these conclusions, the Federal Circuit

has resolved every potential ambiguity in the statute

in favor of broadening the delegation and minimizing

the statutory limits on the Executive’s exercise of

legislative powers. This case provides the Court an

opportunity to make clear that separation of powers

principles require the opposite approach, one that

resolves ambiguity in favor of restraint. And because

the Federal Circuit’s interpretation of the Act cannot

See Transpacific, 4 F.4th at 1310.

See id. at 1314-15.

See id. at 1315

Pet. App. 14a-15a.

be upheld under that standard, the Court should

reverse and hold that the steel derivatives tariff is

unlawful. 13

The Court Should Grant Certiorari To Make

Clear That Courts Must Resolve Ambiguity

In Statutes Delegating Vast Legislative

Power To The Executive In Favor Of

Restraining The Delegation.

The Federal Circuit applies an interpretive

standard that resolves ambiguity in favor of

expanding delegation of legislative trade powers to the

President. As the panel explained below, the Federal

Circuit only grudgingly permits any review of the

President’s compliance with the statutory limits on his

delegated trade powers. Pet. App. 11a (explaining

such review is “available, but it is limited”). What

review is provided defers to the President’s

interpretation of his own authority: “For a court to

interpose, there has to be a clear misconstruction of the

governing statute, a significant procedural violation, or

action outside delegated authority.” Ibid. (quoting

Maple Leaf Fish Co. v. United States, 762 F.2d 86, 89

(Fed. Cir. 1985)) (emphasis added).

That standard cannot be reconciled with the

family of doctrines this Court has adopted to protect

the Constitution’s division of authority between the

branches.

See generally, Cass R. Sunstein,

Because the Federal Circuit has exclusive jurisdiction over

appeals under the Trade Expansion Act, a circuit split on the

proper construction of that Act could not arise. See 28 U.S.C.

§§ 1295(a)(5), 1581(i).

Nondelegation Canons, 67 U. Chi. L. Rev. 315 (2000).

In the most extreme cases, a transfer of legislative

power to the Executive may be so expansive and

unguided that the courts are compelled to directly

declare it an unconstitutional delegation. See, e.g.,

A.L.A. Schecter Poultry Corp. v. United States, 295

U.S. 495 (1935). Courts also must construe statutory

delegations “narrowly in order to avoid a serious

question of unconstitutional delegation of legislative

power.” Algonquin, 426 U.S. at 558-59 (internal

quotation marks and citation omitted).

More recently, the Court has applied the “major

questions” doctrine to cases “in which the history and

the breadth of the authority that [the Executive] has

asserted, and the economic and political significance of

that assertion, provide a reason to hesitate before

concluding that Congress meant to confer such

authority.” West Virginia v. EPA, 142 S. Ct. 2587,

2608 (2022) (cleaned up). In those “extraordinary

cases,” the Executive’s claim of power can prevail only

if it can “point to clear congressional authorization.”

Id. at 2608-09.

Thus far, the Court has applied the major

questions doctrine principally to decide whether

Congress has delegated to the Executive power to

regulate a particular subject matter at all—e.g.,

student loan forgiveness, cigarettes, greenhouse

gases, assisted suicide, etc. Here, there is no doubt

that Congress intended to delegate the President

power to regulate international trade.

The

interpretative question, instead, concerns the scope of

that power and, in particular, the meaning of the

statutory restrictions placed on the Executive’s

exercise of that authority.

While the precise question may be different, the

underlying constitutional considerations are the same.

The President’s attempts to legislate the terms of

international trade in a product deemed essential to

national security is a question of “vast economic and

political significance.” Util. Air Regul. Grp v. EPA, 573

U.S. 302, 324 (2014). The scope of the delegation is

enormous, allowing the President to respond to the

perceived threat with whatever “action that, in the

judgment of the President, must be taken to adjust

imports.” 19 U.S.C. § 1862(c)(1)(A)(ii); see Biden v.

Nebraska, 143 S. Ct. at 2373 (invoking major

questions doctrine where agency claimed “virtually

unlimited power to rewrite the Education Act”); Ala.

Assoc. of Realtors v. DHS, 141 S. Ct. 2485, 2489 (2021)

(calling

Government’s

claim

authority

“breathtaking” where only limit was that an agency

“deem a measure ‘necessary’”). There can be no claim

that Congress made the principal policy decisions

itself, leaving it to the President to “fill up the details.”

Wayman v. Southard, 23 U.S. 1, 31 (1825). The only

choice Congress made was to direct the President to

make the relevant policy decisions.

Under the Act, then, significant matters of

national trade law are “nothing more than the will of

the current President.” Gundy, 139 S. Ct. at 2135

(Gorsuch, J., dissenting); see also Gonzalez v. Oregon,

546 U.S. 243, 262 (2006) (applying major-questions

doctrine where Attorney General claimed power to

prohibit drug uses “he deems illegitimate”). That is

the opposite of the liberty-preserve process Congress

ordained for the creation of law. See Gundy, 139 S. Ct.

at 2134 (Gorsuch, J., dissenting).

To be sure, in the 1970s, this Court found no

delegation problem with a prior version of the Trade

Act. See Algonquin, 426 U.S. at 559. But the Court’s

premise — that the statute “establishes clear

preconditions to the Presidential action,” such as the

prerequisite report from the Secretary’s investigation,

ibid. — has been undermined by the Federal Circuit’s

repeated untethering of the President’s action from

those procedural prerequisites. See AIIS, 376 F. Supp.

3d at 1351-52 (Katzmann, J., concurring). As now

construed, the President may legislate tariffs against

goods that were not the subject of any investigation or

recommendation by the Secretary, years after the

initial investigation, through whatever deliberative

process he chooses.

Moreover, in more recent times, members of this

Court have drawn precedents like Algonquin into

question, expressing a willingness to “reconsider the

approach we have taken for the past 84 years” in an

appropriate case. Gundy v. United States, 139 S. Ct.

2116, 2131 (2019) (Alito, J., concurring in the

judgment); see also ibid. (Gorsuch, J., joined by Robert,

C.J., and Thomas, J., dissenting) (calling Court’s

modern non-delegation approach “an understanding of

the Constitution at war with its text and history”);

Paul v. United States, 140 S. Ct. 342 (2019)

(Kavanaugh, J., respecting denial of certiorari)

(“Justice Gorsuch’s thoughtful Gundy opinion raised

important points that may warrant further

consideration in future cases.”).

The Court should use this case to begin

reconsidering its approach to nondelegation. It need

not overrule Algonoquin in order to recognize that the

Act raises separation of powers concerns sufficient to

require that courts find clear congressional

authorization before construing the statute in ways

that expand the scope of the President’s delegated

authority. Both “separation of powers principles and

a practical understanding of legislative intent”

suggest that when Congress delegates broad,

unguided legislative power to the Executive, it intends

for the conditions on that authority to be strictly

construed and enforced. West Virginia, 142 S. Ct. at

2609.

Only that approach is consistent with

constitutional avoidance principles and the judiciary’s

obligation to view the Executive’s claims of

“extravagant statutory power over the national

economy” with “skepticism.” West Virginia v. EPA, 142

S. Ctr. 2587, 2609 (2022) (cleaned up).

Accordingly, the President’s claimed authority to

legislate tariffs on steel derivatives in this case should

not have been accepted absent “clear congressional

authorization.”

Ibid.

That includes clear

authorization to excuse the President from complying

with the statutory procedures for taking actions to

reduce imports. Strict enforcement of the Trade Act’s

procedural requirements is particularly important to

maintaining the constitutional order. See Touby v.

United States, 500 U.S. 160, 166 (1991) (holding that

“procedural requirements,” including a time

requirement, created a lawful delegation because they

“meaningfully constrain[ed] the Attorney General’s

discretion”). The Constitution assigns legislative

power to Congress in part because “Article I’s detailed

process of new laws were . . . designed to promote

deliberation.” Gundy, 139 S. Ct. at 2134 (Gorsuch, J.,

dissenting). The procedural requirements of the Trade

Act are designed to replicate at least some portion of

that deliberation when trade policy is made by the

Executive rather than Congress. Courts should be

especially hesitant before adopting an interpretation

of the statute that eliminates those safeguards.

II. The Federal Circuit Could Not Have

Upheld

The

President’s

Actions

Applying

Appropriate

Separation

Powers Principles.

The Federal Circuit could not have reached its

expansive interpretation of the President’s powers if it

had applied the proper interpretative standard.

1. The plain text of the statute is clear and

straightforward: the President is empowered to take a

trade “action” only if, “[w]ithin 90 days after receiving

a report” from the Secretary of Commerce, he

“determines the nature and duration of the action” he

proposes to take.” 19 U.S.C. § 1862(c)(1)(A), (B)(2). He

is then required to implement that “action” within 15

days of his determination and to report to Congress

within 30 days why he decided to take that “action.”

Id. 19 U.S.C. § 1862(c)(1)(B), (2).

The Federal Circuit countenanced the President’s

claimed authority to impose measures other than

those determined through this statutory process by

giving the word “action” an extraordinarily expansive

reading. An “action,” it held, can consist of nothing

more than “a plan of action that allows adjustments to

specific measures . . . in carrying out the plan over

time.” Pet. App. 12a (citation omitted). The court thus

defined an “action” as the equivalent of a general

“plan” and used words like “measures” and

“implementing steps” to describe specific actions like

imposing tariffs, erecting import quotas, or

negotiating a trade agreement. Id. at 1261. Even that

gloss uses the word “plan” loosely. There was no

argument, for example, that the President’s initial

plan included contingencies to extend tariffs to

derivatives on certain conditions. Cf. id. at 1321

(stating that an “action” might include “options for

contingency-dependent choices”). Indeed, neither the

investigation, the Secretary’s report, nor the

President’s Proclamation even mentioned derivatives.

See supra at 14-15. The only way to claim that the

original “plan of action” included steel derivatives

would be if the plan were simply to “fix the problem

somehow” or “impose these initial measures and see

how it goes.”

That definition of “action” cannot be squared with

the rest of the text. For one thing, the statute requires

the President to “implement that action” within 15

days of the determination, making clear that an

“action” is concrete and specific, something that can

actually be implemented, not just a general “plan of

action” whose “implementing steps” will be decided

later. Pet. App. 12a.

Likewise, requiring the President to determine,

and report to Congress, “the nature and duration of

the action,” confirms that an “action” is something

more concrete than a simple resolution to suppress

imports in some unspecified way over some

indeterminate period of time. Id. § 1862(c)(1)(A)(ii)

(emphasis added). After all, the statute separately

requires the President to “determine” whether he

“concurs with the finding of the Secretary” that

imports are threatening to impair national security.

Id. § 1862(c)(1)(A)(i). There would be no point in

requiring him, in the next subparagraph, to also

“determine the nature and duration of the action” if all

that required was reiterating his view that imports

posed a threat that needed to be dealt with through

“specific measures” that would be determined later

and changed at will for years on end.

Nor would there be any point in requiring the

President to determine that his “action” will “adjust

the imports . . . so that such imports will not threaten

to impair national security,” if by “action,” Congress

simply meant a general “plan of action” that contained

no specific measures whose efficacy could be predicted.

If that were not enough, paragraph 3 of subsection

President might decide later that some “other actions”

or “additional actions” are needed to achieve his

objectives, id. § 1862(c)(3)(A), yet authorizes him to do

so without undertaking the statutory process in only

one limited circumstance: if the “action taken by the

President under paragraph (1)” – that is, the action

determined within 90 days of the Secretary’s report –

“is the negotiation of an agreement which limits or

restricts” imports or exports, and either no agreement

is achieved within 180 days or the agreement “is not

being carried out or is ineffective.” Id. § 1862(c)(3)(A).

In those circumstances, the statute requires the

President to “take such other actions as the President

deems necessary” and to “publish in the Federal

Ibid.

By expressly providing for one circumstance in

which the President is not required to repeat the

investigation before imposing an alternative action,

Congress made clear it contemplated no other

exception. See, e.g., TRW Inc. v. Andrews, 534 U.S. 19,

28 (2001) (“Where Congress explicitly enumerates

certain exceptions to a general prohibition, additional

exceptions are not to be implied, in the absence of

evidence of a contrary legislative intent.”). Moreover,

paragraph 3 would have been unnecessary if, as the

Federal Circuit insists, the President’s initial “action”

included any “additional impositions on imports” he

later determined necessary “to achieve the stated

implementation objective.” Transpacific, 4 F.4th at

1319. Nor would this provision’s use of the phrases

“other actions” and “additional actions” make any

sense if “action” meant a general “plan of action”

sufficiently broad to encompass any other or

additional action the President might take in response

to a failed negotiation.

The Federal Circuit’s interpretation of “action”

also makes inexplicable Congress’s requirement that

the President publish a notice of his decision to take

other action when negotiations failed, but not when he

changes course for any other reason (e.g., because

initial import quotas proved ineffective). The Federal

Circuit could not explain why Congress would have

expressly authorized and regulated alternative

actions when the initial action was a negotiation, but

not when the initial action was something else.

Unable to convincingly account for the text, the

Federal Circuit has resorted to general statutory

purposes and an incomplete reading of the legislative

history. For example, the panel believed that freeing

the President from the procedural conditions “furthers

[the Act’s] evident purpose,” which is to “enable and

obligate the President . . . to effectively alleviate the

threat to national security.” 4 F.4th at 1323. In

Transpacific, the court also found support in prior

instances of Presidents modifying their responses

under the Trade Expansion Act without a new

investigation or report from the Secretary of

Commerce. Transpacific, 4 F.4th at 1326-1329. 14 The

panel majority recognized that its historical examples

largely predated Congress’ material revision of the

statute in 1988 which, among other things, added the

90-day time limit for the President to determine the

“nature and duration” of his proposed action and

convey that decision to Congress. Id. at 1329. But the

court brushed the amendments aside, refusing to

Although this Court noted that practice in Algonquin, it did

not pass on its consistency with the statute, perhaps because the

specific modification before it was the product of a renewed

formal investigation by the Secretary of Commerce. 426 U.S. at

553-54. Nor did the Court consider the circumstances under

which the President can extend tariffs to a new category of

products, such as derivatives. Cf. id. at 552 (noting that

presidential orders regarding oil imports had always addressed

both “crude oil and the principal crude oil derivatives”). Instead,

the only question before the Court was whether the Act allowed

the President to control oil imports “by imposing on them a

system of monetary exactions in the form of licensing fees” as

opposed, for example, to “imposing quotas on such imports.” Id.

at 551-52.

construe them as enacting significant constraints on

presidential authority absent a “clear indication from

Congress of a change in policy,” which it found lacking

based principally on its reading of the legislative

history. Transpacific, id. at 1329-31.

As Judge Reyna explained in his Transpacific

dissent, this reasoning fails on its own terms. See id.

at 1341-42. But more importantly, every aspect of that

analysis — the reliance on generalized legislative

purpose, the debatable inferences drawn from

executive practice and congressional silence, the

refusal to construe the 1988 amendments as effecting

“a withdrawal of previously existing presidential

power” absent “a clear indication from Congress,” id.

at 1329 — is incompatible with the proper standard

for interpreting a statute delegating vast legislative

powers to the Executive. None of it constitutes the

“clear congressional authorization” that separation of

powers principles require. West Virginia, 142 S. Ct. at

2609.

III. This Case Presents An Ideal Vehicle For

Resolving Questions Of Great Doctrinal And

Practical Significance.

Accordingly, this case presents the Court an ideal

vehicle for deciding the proper rules for resolving

ambiguities in statutes delegating expansive

legislative power to the Executive Branch — the

question is squarely posed by the case and its answer

is outcome determinative. 15

The question is also undeniably important. For

the reasons already discussed, the proper standard of

review is of vital doctrinal significance. The major

question doctrine can protect against agencies making

unwarranted claims of extravagant delegated powers,

but it does not directly address what should happen

when Congress clearly intends to give away broad

swaths of its constitutional responsibilities to the

Executive branch, often with limited substantive or

procedural conditions attached. As this case shows,

how courts interpret those limitations is of great

significance to maintaining the constitutional plan.

The scope of the President’s authority under the

Trade Expansion Act is also of immense practical

consequence.

Almost by definition, the statute

governs imports of products that are vital to our

economy, steel and steel derivatives being a prime

example. Any tariff on such a product necessarily has

radiating effects throughout the economy. Here, the

steel tariffs have dramatically increased the price of

imported steel and steel derivatives by approximately

Petitioner also adequately preserved the argument below.

See, e.g., Pet’r. C.A. Br. 27 (Heading III.B: “Outer Boundaries on

the President’s Authority to Act Outside the Time Constraints in

Section 232 Are Necessary to Avoid Separation-of-Powers

Concerns”). To be sure, petitioner did not directly ask the panel

to overrule the Circuit’s deferential standard of review under

Maple Leaf Fish. But the panel had no authority to grant such a

request, so petitioner’s failure to make it is no impediment to

review. See, e.g., US Airways, Inc. v. McCutchen, 569 U.S. 88,

101 n.7 (2013).

$3 billion per year. 16 They also allow domestic

manufacturers to raise their prices, with domestic

consumers bearing the brunt of the price increases.17 As

a consequence, steel prices in the United States are up to

“40 percent higher even than in high-cost Western

Europe.”18 Unsurprisingly, then, downstream industries

that rely on steel inputs— which “employ 46 times more

people and add 35 times more to GDP than do steel

producers” 19 —saw an “average annual decrease in

production values” of “$3.4 billion during 2018-21”20 and

the loss of approximately 75,000 jobs (compared to the

estimated 1,000 jobs created or saved in the steel

industry) in the first few years of the tariffs.21

Https://taxfoundation.org/tariffs-trump-trade-war/#:~:text=

Tariffs%20on%20steel%20and%20aluminum%20and%20derivat

ive%20goods%20currently%20remain,based%20on%202018%20i

mport%20values.

See Economic Impact, supra, at 21-22.

See Dan Pearson, Ending tariffs would curb inflation — but

why ignore the main benefits?, The Hill (July 18, 2022), available

https://thehill.com/opinion/international/3563911-endingtariffs-would-curb-inflation-but-why-ignore-the-main-benefits/.

Ibid.

Id. at 22.

Kadee Russ & Lydia Cox, Steel Tariffs and U.S. Jobs

Revisited,

https://econofact.org/steel-tariffs-and-u-s-jobsrevisited (Feb. 6, 2020) (citing study by researchers at the Federal

Reserve Board of Governors).

The resulting higher prices have propagated

through the economy, contributing to inflation. 22 The

result has been an increase in costs of materials

essential to a variety of domestic industries, including

homebuilding. By one estimate, the additional cost to

the economy has been approximately $11.5 billion a

year, working out to over $900,000 for every job saved

or created in the steel industry. 23

Ordinarily, those bearing the brunt of the tariffs

could turn to their local members of Congress to seek

relief. But because the tariffs were imposed by

presidential proclamation rather than through the

constitutional process for imposing taxes and

regulating international commerce, Congress has

excused itself from the debate and escaped political

accountability for the pain the tariffs have inflicted.

See Gundy, 139 S. Ct. at 2135 (Gorsuch, J.,

dissenting).

This Court should intervene to restore the

constitutional balance.

The Federal Circuit has

steadfastly refused to provide a significant check on

the President’s exercise of his delegated powers. No

other circuit has jurisdiction to do so. See supra n.13.

See, e.g., Megan Hogan & Yilin Wang, To fight inflation,

cutting tariffs on China is only the start, Peterson Institute for

International Economics (June 3, 2022), https://www.piie.com/

blogs/realtime-economic-issues-watch/fight-inflation-cuttingtariffs-china-only-start.

Https://www.washingtonpost.com/business/2019/05/07/

trumps-steel-tariffs-cost-us-consumers-every-job-createdexperts-say/.

And there is no indication that the tariffs will be lifted

anytime soon.

IV. At The Very Least, This Petition Should Be

Held For Loper.

At the very least, the Court should hold this case

pending its decision in Loper Bright Enterprises v.

Raimondo, No. 22-451. There, the Court will consider

the appropriate standard for deferring to an executive

agency’s interpretation of its own statutory powers, in

the process deciding whether to modify or overrule

Chevron v. NRDC, 467 U.S. 837 (1984). Here, the

Federal Circuit invoked its particularly robust form of

Chevron-style deference for reviewing the Executive’s

claimed power under the Trade Expansion Act. Pet.

App. 11a. The Court’s decision in Loper could shed

important light on whether that standard is consistent

with the Constitution’s division of powers among the

branches. See, e.g., U.S. BIO 7, Yang v. United States,

No. 02-136 (Solicitor General explaining that a hold is

appropriate when the Court’s decision in a pending

case “could affect the analysis of [the] question”

presented by the petition or if “it is possible that the

Court’s resolution of the question presented in [the

pending case] could have a bearing on the analysis of

petitioner’s argument,” even if the cases do “not

involve precisely the same question”).

CONCLUSION

The petition for certiorari should be granted.

Respectfully submitted,

Jeffrey S. Grimson

Kristin H. Mowry

Jill A. Cramer

Sarah M. Wyss

Bryan P. Cenko

MOWRY & GRIMSON,

PLLC

5335 Wisconsin Ave.,

Suite 810

Washington, DC 20015

July 21, 2023

Kevin K. Russell

Counsel of Record

GOLDSTEIN, RUSSELL &

WOOFTER LLC

1701 Pennsylvania Ave. NW

Suite 200

Washington, DC 20006

(202) 240-8433

kr@goldsteinrussell.com

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.