# Petition for Writ of Certiorari — Consumers Union of United States, Inc. v. Henry A. Kissinger, Secetary of State and Julius L. Katz, Deputy Assistant Secretary of State 421 U.S. 1004 (1975) (No. 74-1097) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385608_0730%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1975 - **Citation:** 421 U.S. 1004 ## Text IN THE Supreme Court of the United States. RODAK, J JANUARY TERM, 1975 n. 74-1097 CONSUMERS UNION OF UNITED STATES, INC., Petitioner, Vv. Henry A. KISSINGER, Secretary of State and Juuius L. Katz, Deputy Assistant Secretary of State, Respondents. PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT RICHARD A. FRANK ELDON V. C. GREENBERG JOSEPH N. ONEK CENTER FOR LAW AND SOCIAL POLICY 1751 N Street, N.W. Washington, D. C. 20036 (202) 872-0670 Attorneys for Petitioner WILSON - EPES PRINTING Co.. INC. - RE 7-6002 - WASHINGTON. D. C. 20001 TABLE OF CONTENTS Page RIPPIN OPINED SUMINITN sccsssorascncsesoevisisnosssasnvebsassaseseonssccmeasonnnenss 1 [RETEST OORT R ERNST AINE ER el eD 2 QUESTIONS PRESENTED 0000000. cocccocccccececeeeceee 2 CONSTITUTIONAL AND STATUTORY PROVI- UD Ee WN ROD ong cccasasnncnenccececcesdsnsscnenecmsescens: 2 STATEMENT OF THE CASE... eee 4 REASONS FOR GRANTING THE WRIT ........... 7 I. THE EFFECT OF THE MAJORITY DECI- SION IS TO PERMIT THE EXECUTIVE BRANCH TO REGULATE COMMERCE IN VIOLATION OF THE SUBSTANTIVE POLI- CIES AND PROCEDURAL SAFEGUARDS ESTABLISHED BY CONGRESS ................ 9 II. THE DECISION OF THE COURT OF AP- PEALS CONFLICTS WITH THE DECISION OF ANOTHER COURT OF APPEALS ON THE SAME MATTER OF EXECUTIVE AU- THORITY TO CONCLUDE QUOTA AGREE- DINE dstitiastasecadaten tok 18 ER I Re Este FCN A OO Oe 22 SE ar OR Pe re | oe Srey aan BERN II TABLE OF CONTENTS—Continued Table of Cases Page Best Foods, Inc. v. United States, 218 F. Supp. es NEM PUNE | haiceincicocsestnsasnnnohidisnieuennniebannes 12 The Brig Aurora, 11 U.S. (7 Cranch) 382 (1813).. 11 Chicago & Southern Air Lines, Inc. v. Waterman S.S. Corp., 333 U.S. 103 (1948) -.......00000000 0. 12 Dickerson Vv. Colgrove, 100 U.S. 578 (1880) ......... 18 Eastern Greenland Vase, Denmark v. Norway, CRUD EAs Hs BST, THO. BS mecccceesees 20s 18 Field Vv. Clark, 143 U.S. 649 (1892) —..00000 2. 11 Goodman V. Dicker, 169 F.2d 684 (D.C. Cir. 1948) .. 18 J. W. Hampton, Jr. & Co. v. United States, 276 lathe aE REE hee dccnciacss Nestabnakacaeaccm maou nesbeagaeceaes 11 Little v. Barreme (The Flying Fish), 6 U.S. (2 oo Be, + car risen cn cee eve ON 10, 12 Moore V. Ogilvie, 394 U.S. 814 (1969) 000000000... 9 Rich v. Naviera Vacuba, S.A., 197 F. Supp. 710 (E.D. Va.) aff’d 295 F.2d 24 (4th Cir. 1961).. 12 Roe v. Wade, 410 U.S. 113 (1978) .......2.....00200002.... 9 Schmidt Pritchard & Co. v. United States, 167 F. fess. Bre ae. Gt: fe. 12 South Puerto Rico Sugar Co. Trading Corp. V. United States, 334 F.2d 622 (Ct. Cl. 1964), cert. denied, 379 U.S. 964 (1965) 0000... 10, 12 Southern Pacific Terminal Co. v. ICC, 219 U.S. 498 5. | GARR CE A Sas EI Nelonre ERS 9 Star Industries, Inc. v. United States, 320 F. Supp. 1018 (Cust. Ct. 1970), rev’d on other grounds, 462 F.2d 557 (C.C.P.A.), cert. denied, 409 U.S. TE EE icthait cine ei es 10 Star-Kist Foods, Inc. v. United States, 275 F.2d Ee ge | Rae ER APU ee een 10, 11 United States v. Belmont, 301 U.S. 324 (1937) ..... 12 United States v. Curtiss-Wright Export Corp., ee Sh ee. CRE ett 10, 11-12 United States v. Guy W. Capps, Inc., 204 F.2d 655 (4th Cir. 1953), aff’d on other grounds, 348 U.S. 296 (1955) slaphubickecacieadiaaaaatenl 9, 11, 18-22 ill TABLE OF CONTENTS—Continued Page United States v. W. T. Grant Co., 345 U.S. 629 re _ | pn Cena aN oe eras eam United States V. Pink, 315 U.S. 203 (1942) -..-------- 12 Yoshida International, Inc. V. United States, 378 F. Supp. 1155 (Cust. Ct. 1974) ....--------eceeeeere 11 Youngstown Sheet & Tube Co. Vv. Sawyer, 343 U.S. es 18) 12 Constitution as he eee 2, 10-11 a1) 11 at 2s 11 el Tl, OG itr ere 11 Statutes Agricultural Act of 1956, Section 204, 7 U.S.C. ee ge rem rear rae 13 Agricultural Adjustment Act of 1933, Section 22, us. (A 13, 19, 20 Sherman Antitrust Act, 15 U.S.C. §§ 1-7 -...-.--------- 6,7 Tariff Act of 1930, Ch. 497, 46 Stat. 590, 19 U.S.C. $8 1001-1654 4... 13 Trade Act of 1974, Pub. L. No. 93-618 (Jan. 3, 1975), 19 U.S.C. §§ 9111-2487 ......------------22---0°° 2,13 Trade Agreements Act of 1934, §§ 1-4, 48 Stat. Aaah IPN Te De cc rete eS 13 Trade Agreements Extension Act of 1943, Ch. 118, 57 Stat. 126 ......------------------eser Beta 2 ane 13 Trade Agreements Extension Act of 1948, Ch. 678, 62 Stat. 1053 ......-.--------------e ee take meh 13 Trade Agreements Extension Act of 1949, Ch. 585, GS Stat. GOT —..---------------n--n-cnn-nn one 13 Trade Agreements Extension Act of 1951, Ch. 141, eae een en eer rnyrareeaeengr nl 13 Trade Agreements Extension Act of 1955, Ch. 169, ost 16 13 Trade Agreements Extension Act of 1958, Pub. L. No. 85-686, 72 Stat. 673 -.....----------egrrnn 13 \ IV TABLE OF CONTENTS—Continued Page Trade Expansion Act of 1962, Pub. L. No. 87-794, 76 Stat. 872, 19 U.S.C. §§ 1801-1991 _..... 13 Escape Clause Provisions, Sections 301, 302, 351, 352, 19 U.S.C. §§ 1901, 1902, 1981, NE eg dis iene nicedneh cert edn aniael 2, 3, 14, 15, 17, 20 National Security Provision, Section 232, 19 SEARS a aa ia Nc mae 15-16 Rules Congressional Material 108 Cong. Rec. 19859 (1962) 2.02.02. 15 Hearings on H.R. 9900 Before the House Comm. on Ways and Means, 87th Cong., 2d Sess. esa Ais SRE BS Ae 13, 14 H.R. Rep. No. 1000, 73d Cong., 2d Sess. (1934).... 10-11 S. Rep. No. 2059, 87th Cong., 2d Sess. (1962) ........ S. Rep. No. 1298, 98d Cong., 2d Sess. (1974) ......... 11 IN THE Supreme Court of the United States JANUARY TERM, 1975 No. CONSUMERS UNION OF UNITED STATES, INC., Petitioner, Vv. Henry A. KISSINGER, Secretary of State ~ and Jutius L. Katz, Deputy Assistant Secretary of State, Respondents. PETITION.FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT Consumers Union of United States, Inc. (“Consumers Union”), on behalf of itself and its members, consumers of steel products, hereby respectfully petitions for a writ of certiorari to review the judgment of the United States Court of Appeals for the District of Columbia Circuit entered in this case on December 2, 1974. OPINIONS BELOW The opinion of the Court of Appeals is reported at 506 F.2d 186 and set forth in the appendix at pages yi Re, 2 la-29a.’ The opinion of the District Court is reported at 352 F. Supp. 1319 and is set forth in the appendix at pages 30a-35a. JURISDICTION The opinion of the Court of Appeals for the Dis- trict of Columbia Circuit was rendered on October 11, 1974. A timely petition for rehearing and suggestion for reconsideration en banc was denied on December 2, 1974, and this petition is filed within 90 days of that date. The Court’s jurisdiction is invoked under 28 U.S.C. § 1254(1). QUESTION PRESENTED Whether, in order to regulate foreign commerce through agreements establishing steel quotas, the Execu- tive must comply with express substantive and proce- dural requirements in a Congressional statute authorizing the Executive to negotiate such agreements. CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED (1) United States Constitution, Art. I, § 8, 973: The Congress shall have Power . . . To regulate Commerce with foreign Nations... . (2) United States Code, Title 19, Sections 1901 and 1982. (The Escape Clause of the Trade Expansion Act of 1962, Sections 301 and 352)? 1 Citations to the petition’s appendix are in the form “App. ee -A certified copy of the Joint Appendix printed for use of the Court of Appeals has been furnished to this Court, and references to it are in the form, “D.C. Cir. App. 4s 2? These provisions have been modified, in “respects not relevant to this case, and have been recodified, by the Trade Act of 1974, Pub. L. No. 93-618, §§ 201, 202 and 203 (Jan. 3, 1975), 19 U.S.C. §§ 2251, 2252, and 2253. , 3 The complete texts of these sections are reproduced at App. 36a-40a. The most relevant parts provide: 19 U.S.C. § 1901(b) (1) Upon the request of the President upon resolution of either the Committee on Finance of the Senate or the Committee on Ways and Means of the House of Representatives, upon its own motion, or upon the filing of a petition under subsection (a) (1) of this section [by the industry], the Tariff Commission shall promptly make an investigation to determine whether, as a result in major part of concessions granted under trade agreements, an article is being imported into the United States in such increased quantities as to cause, or threaten to cause, serious injury to the domestic industry producing an article which is like or directly competitive with the im- ported article. 19 U.S.C. § 1901(d) (1) In the course of any investigation under subsec- tion (b) (1) of this section, the Tariff Commission shall, after reasonable notice, hold public hearings and shall afford interested parties opportunity to be present, to produce evidence, and to be heard at such hearings. 19 U.S.C. § 1982(a) After receiving an affirmative finding of the Tariff Commission under section 1901(b) of this title with respect to an industry, the President may, in lieu of exercising the authority contained in section 1981 (a) (1) of this title [to impose a tariff or quota] negotiate international agreements with foreign coun- ‘tries limiting the export from such countries and the import into the United States of the article caus- ing or threatening to cause serious injury to such industry, whenever he determines that such action would be more appropriate to prevent or remedy serious injury to such industry than action under section 1981(a) (1) of this title. 4 STATEMENT OF THE CASE The subject of this litigation is detailed, written agree- ments negotiated and concluded in 1972 between the De- partment of State and European and Japanese steel producers under which the producers restrain sales to the United States (D.C. Cir. App. 30a-47a). Such agreements constitute—in terms of the number of parties, the volume of trade, impact on import levels and prices *—perhaps the most significant restraints ever concluded by this country. The agreements specify detailed tonnage and percentage limitations according to product line; include limitations on the geographic distribution of steel sales within the United States; obligate the signatory European producers to “use their best efforts” to “induce” non- signatory producers to limit their shipments to the United States of specified steel mill products to detailed tonnage limitations; and, provide for communication to permit, inter alia, upward adjustment of the specified limitation on steel pipe imports whenever American steel producing companies are unable to fulfill the demand in the American market. The undertaking of the Japanese producers is conditioned upon the understanding that their “share of total United States imports of steel mill products, will not be disadvantageous” as compared with the undertakings of the other signatory producers; and, the undertakings of the European producers include the understanding that there will be consultation with representatives of the U.S. Government in the event that the European producers believe that “they have been placed in a disadvantagous position with respect to other ex- porters of steel to the United States by developments in the international steel market.” 3In 1971, steel sales amounted to $17.2 billion, and imports rep- resented 18% of the domestic market or 18 million tons (D.C. Cir. App. 190a). 5 In 1968, the Johnson Administration concluded that steel imports should be reduced because it believed ex- cessive imports were injuring the domestic steel industry and causing market disruption (D.C. Cir. App. 114a- 1l5a and 186a). After examining possible alternatives to achieve this result, the Department of State chose to negotiate restraints with steel producers of Japan and the European Community. A quota agreement * in the form of a joint undertaking by the producers to restrain their steel exports to the United States during a three- year period was concluded in 1968 (D.C. Cir. App. 172a- 184a). Early in 1970, domestic steel producing interests pri- vately urged the Executive branch to open negotiations with the foreign steel companies for a renewal of the steel quota agreements. New negotiations were under- taken over a one and one-half year period and eventually resulted in agreements, dated May 2, 1972, under which steel sales to the U.S. were restrained during 1972, 1973 and 1974. The 1972 agreements involved far more re- strictive and detailed quotas than did those negotiated in 1968. While Congress has authorized the President to ne- gotiate quota agreements, the Congressional legislation requires that specified criteria be met and procedural safeguards followed before any such negotiation. The purpose of these requirements is to ensure that the views of all economically affected parties, including consumers, will be properly presented and considered in the decision- ‘The restraints on steel and similar restraint undertakings on other commodities are variously termed “restraint arrangements”, “voluntary restraint arrangements”, “restraint agreements”, and “orderly marketing agreements”. In this petition, the term “quota agreements” will generally be used. The adjective “voluntary” is, of course, a misnomer to the extent :: implies anything further than that these parties, like parties to any contract, voluntarily entered into their obligations. 6 making process, and that restraints are only imposed when consistent with the legislative purpose. At no time were the procedural requirements of the specific law au- thorizing quota agreements to alleviate injury of a do- mestic industry or of any other trade law complied with in connection with the steel quota agreements. Although the quota agreements were negotiated after detailed, private consultation with American steel interests (App. lla), there was no public notice of an intention to im- pose restraints on steel imports, no opportunity for public comment on such a proposal, no public hearings, no public record, and no public determination why such re- straints were needed. On May 24, 1972, petitioner Consumers Union filed suit challenging the legality of the 1972 steel quota agree- ments on two grounds. First, Consumers Union main- tained that the respondents acted illegally in concluding quota agreements of the kind in question without com- plying with the substantive criteria and _ procedural safeguards enacted by Congress for such agreements. Alternatively, petitioner maintained in a separate count that the agreements were an unreasonable restraint of trade in violation of Section 1 of the Sherman Act, 15 U.S.C. $1. Thereafter, petitioner amended the complaint dropping the Sherman Act count, but continuing to main- tain that the agreements could not be immunized by the Executive from the antitrust laws. In a Memorandum Opinion, Declaration and Order, dated January 8, 1973, the District Court concluded that the Executive was not precluded by the trade laws from negotiating the steel quota agreements.* But the District Court ruled that the President did not have the power to secure action which would be in violation of the 5 The District Court heard the matter on cross-motions for sum- mary judgment, and the facts are not in dispute. 7 Sherman Act or any other law enacted by Congress oF to grant immunity from such laws. The Court of Appeals issued a divided opinion. Both majority and dissent agreed that the antitrust issue disappeared from the case when petitioner amended its complaint and dropped the count addressed specifically to its antitrust claim. The Court of Appeals thus vacated the District Court’s declaration concerning the antitrust laws. With respect to the trade issue, the majority found that the President possessed inherent authority to regulate commerce by negotiating trade restraints of the kind in question ; that Congress had most likely oc- cupied the field of “enforceable” import restraints; but that no conflict existed between the steel quota agree- ments and Congressional legislation in the trade area since the steel quotas were not “enforceable”. Judge Leventhal, dissenting, found otherwise. He stated that the steel restraint arrangements were inconsistent with Congressional statutes entailing “a comprehensive scheme occupying the field of import restraints” involv- ing a prescribed “nrocedure with safeguards and right of comment by affected interests” (App. lla). He also found that Congress had expressly authorized quota agreements of the very kind in this case; but the rele- vant legislation required procedures not undertaken by the respondents before negotiating and concluding the steel quota agreements. Noting that the steel agreements were, in any event, enforceable, he concluded they were subject to procedures and requirements in the Trade Expansion Act which were not complied with, and were thesefore unlawful. REASONS FOR GRANTING THE WRiT Petitioner only seeks review of the Court of Appeals decision involving the trade law issue.” Petitioner pre- 6 The case in the Court of Appeals was a consolidation of seven civil actions with the Secretary of State and the Deputy Assistant eI, Senne er Pas or yey 8 sents a clearly defined, important question of “federal law which has not been, but should be, settled” by this Court:* May the Executive regulate foreign commerce through detailed, written agreements establishing stee! quotas in violation of the substantive criteria and proce- dural requirements provided in the statute authorizing the negotiation of such agreements? Furthermore, peti- tioner seeks review because the majority decision is “in conflict with the decision of another court of appeals” on the same matter.“ Petitioner respectfully submits this Court should grant certiorari and hold that when Congress, consistent with an historical pattern, legislates that import barriers, in- cluding quota agreements, may be achieved only if cer- tain substantive criteria are satisfied and procedural safeguards followed, the Executive may not act in vio- lation of those criteria and safeguards, and, therefore. the steel quota agreements are invalid. This sharply focussed question is of great importance. The Court of Appeals decision represents an unprece- dented inroad into the traditional authority of the Con- gress in the area of trade regulation and. if permitted to stand, will allow the respondents to continue blithely to disregard congressionally mandated criteria and proce- dural safeguards in restricting this nation’s imports. As Judge Leventhal warns, if defendants’ theory is left standing, the President will be able to utilize it “with all Secretary of State as defendants in one action involving the trade law issue and a second action involving the antitrust issue, and the domestic and foreign steel companies as defendants in the others. The petitioner seeks review only of the Court of Appeals decision with respect to the trade issue and hence only the civil action in- volving the Department of State defendants, No. 73-1132. * Supreme Court Rule 19. 8 Id. 9 industry on every aspect of domestic, as well as foreign commerce. This is dangerous doctrine” (App. 21a).” Petitioner contends, further, that certiorari should be granted because the Court of Appeals majority has ren- dered a decision in conflict with the decision of the Fourth Circuit in United States v. Guy W. Capps, Inc., 204 F.2d 655 (4th Cir. 1953), aff'd on other grounds, 348 U.S. 296 (1955), on the same matter of Executive au- thority to conclude quota agreements. I. The Effect Of The Majority Decision Is To Permit The Executive Branch To Regulate Commerce In Vio- lation Of The Substantive Policies And Procedural Safeguards Established By Congress. It is undisputed that the steel quota agreements, the subjects of this litigation, regulate commerce.” The very * Although the steel quota agreements originally challenged in 1972 expired on December 31, 1974, the case is not moot. The Department of State has declined to state it will not renew the agreements. The renewal in 1972 did not occur until the earlier agreeemnts had lapsed for over five months. The Court should not find this case moot, for to do so would prevent petitioner from ever successfully challenging the short-term steel restraint arrange- ments, would leave the Department of State free to continue to fol- low what it claims is, over recent history, a pattern of restraint ar- rangements based on inherent authority (App. 21a), and would per- mit the continuation of an invalid instrusion by the Executive into the Constitutional powers of Congress. Quota agreements are in- variably short-term since they are used as interim solutions (D.C. Cir. App. 115a). In situations like this, when limited duration government actions are involved, this Court has regularly reached the merits on the rationale that otherwise the actions would evade review. Moore v. Ogilvie, 394 U.S. 814 (1969); Southern Pacific Terminal Co. v. ICC, 219 U.S. 498 (1911). The Court has applied that doctrine particularly where, as in this case, repeated violations are involved. U.S. v. W.T. Grant Co. 345 U.S. 629 (1953); Roe v. Wade, 410 U.S. 113 (1973). 10 To put this case in proper context, it is important to under- stand what this case does not involve. It is not a situation in which the Department of State’s objectives are related to political foreign policy issues; rather, the respondents’ own characterization SC Seager hl eA AR a Fo 10 purpose of the agreements “was to manage commerce between the United States and the foreign producers in- volved ....” (App. 13a-14a). The foreign steel pro- ducers, after an extended formal negotiation. committed themselves to limit sales to the United States, took their obligations under the agreements seriovsly, and did, in fact, restrict sales. The Constitution, by Article I, $8, 43, confers on Congress plenary powers over foreign and interstate commerce. Congress has delegated to the Executive, under appropriate guidelines and appropriate procedural safe- guards, primary responsibility for carrying out the Na- tion’s legislated trade policies." of their objectives places their actions solely in the area of inter- national commerce, with a purpose to protect a domestic industry from competition (D.C. Cir. App. 112a-124a and 185a-186a). The case is not one in which an embargo or some other action affecting trade is incidental to Presidential objectives aimed at traditional! “foreign policy” goals such as avoiding the appearance of taking sides in a foreign dispute (United States v. Curtiss-Wright Export Corp., 299 U.S. 304 (1936)); responding to war-like acts by a foreign enemy (Little v. Barreme (The Flying Fish)), 6 U.S. (2 Cranch) 170 (1804)); or participating in the impesition by an international organization of economic sanctions against a trouble- making country (South Puerto Rico Sugar Co. Trading Corp. V. United States, 334 F.2d 622 (Ct. Cl. 1964), cert. denied, 379 U.S. 964 (1965) ). It is, instead, a case of Executive action aimed at pro- tecting a domestic industry from the competition of foreign im- ports; preserving our liberal! trade policy; avoiding a precedent for restraints of imports other than steel; and, avoiding the danger of retaliation against our exports under GATT (D.C. Cir. App. 112a-124a and 185a-186a). In such circumstances Executive action has traditionally been strictly limited by the parameters of Con- gressional delegation. See, e.g., Star-Kist Foods, Inc. v. United States, 275 F.2d 472 (C.C.P.A. 1959); Star Industries, Inc. v. United States, 320 F. Supp. 1018 (Cust. Ct. 1970), rev'd on other grounds, 462 F.2d 557 (C.C.P.A.), cert. denied, 409 U.S. 1076 (1972). 1! See, e.g., the House Report for the Trade Agreements Act of 1924, which includes the observation: CONGRESS DETERMINES THE POLICY—THE PRESI- DENT EXECUTES THE POLICY OF CONGRESS : [Footnote continued on page 11] 11 Respondents claim, in spite of Article I, § 8, 93, that the Executive possesses inherent authority over foreign commerce to the extent utilized in the steel quota agree- ments.? However, the question of the extent of in- 11 [Continued] In order that this purpose may be carried out, in other words, in order that the policy declared by Congress may be ap- propriately executed, certain powers are accorded to the Ex- ecutive Branch of the Government, the President. The official of the Government who represents all the people, having the entire United States as his constituency, is given the responsibility for carrying out the will of Congress. This is the appropriate method in a government that exists, of, by, and for the people. H.R. Rep. No. 1000, 73d Cong., 2d Sess. 14 (1934) ( emphasis added) This same understanding of the Constitutional scheme is reflected most recently in the Senate report on the Trade Act of 1974. See S. Rep. No. 1298, 93d Cong., 2d Sess. 14-15 (1974). 12No case law, however, supports that proposition. The only Constitutional provisions which speak to Presidential foreign rela- tions powers are—(1) “The President shall be Commander in Chief ...,” Art. II, §2, 71; (2) “CH]e shall have Power, by and with the Advice and Consent of the Senate, to make Treaties . . . ie Art. IJ, § 2, § 2; and (3) “TH]e shall receive Ambassadors and other public Ministers,” Art. II, §3. From this, a foreign affairs power has properly been implied, but the quantum leap of adducing au- thority to establish foreign commerce policy cannot be made. Peti- tioner has been able to find only two cases involving Executive ac- tion in the area of trade regulation without statutorily delegated authority, and in both cases it was found that the Executive acted unlawfully. United States v. Guy W. Capps, Inc., 204 F.2d 655 (4th Cir. 1953), aff'd on other grounds, 348 U.S. 296 (1955); Yoshida International, Inc. v. United States, 378 F. Supp. 1155 (Cust. Ct. 1974). All other cases in the area involve Executive action under Congressionally delegated authority : and each of those reflects the unvarying assumption that the President cannot act in such area. except where there has been a delegation by Congress. See, ¢.9., Field v. Clark, 143 U.S. 649, 690-691 (1892); Star-Kist Foods, Ine. Vv. United States, 275 F.2d 472 (C.C.P.A. 1959) ; and sec gen- erally, The Brig Aurora, 11 U.S. (7 Cranch) 382 (1813); J. Ws Hampton, Jr. & Co. V. United States, 276 U.S. 394 (1928). The cases relied upon by the respondents in support of independent Executive authority in the area of trade regulation, such as United TURE ORTOR OE as kt es Dy ee ae 12 herent Executive power need not be reached in the present case if the Court finds, as petitioner believes it must, that Congress has legislated on the subject in question. Here, as petitioner will demonstrate below and as Judge Leventhal properly decided, Congress has so legislated and, indeed, has established the country’s trade policy in both basic and detailed terms. The Executive, in con- cluding the steel quota agreements, has acted in contra- vention of that basic policy and specific criteria and pro- cedures. When the Congress exercises its Constitutional prerogative to regulate commerce, there is no question that Presidential action contrary to basic legislative policy and specific criteria is unlawful,’* and, likewise, failure to follow explicit procedural safeguards invalidates any such action.** States v. Curtiss-Wright Export Corp., 299 U.S. 304 (1936), and Chicago & Southern Air Lines, Inc. vy. Waterman S.S. Corp., 333 U.S. 103 (1948), in fact involve delegations of authority by Congress to the President. And, in those cases where no delegation has been found necessary, United States v. Belmont, 301 U.S. 324 (1937), and United States v. Pink, 315 U.S. 203 (1942), the President was held to have authority to take actions having an incidental effect on commercial transactions only because these actions were an essential part of an explicit Constitutional power to receive Ambassadors, i.e., recognize foreign governments. 13The Supreme Court articulated this doctrine in the Steel Seizure case: When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitu- tional powers minus any constitutional powers of Congress over the matter. Youngstown Sheet & Tube Company v. Sawyer, 343 U.S. 579, 637 (1952) (concurring opinion of Mr. Justice Jackson). See also The Flying Fish, 6 U.S. (2 Cranch) 170, 177-178 (1804) ; South Puerto Rico Sugar Co. Trading Corp. v. United States, supra; Rich v. Naviera Vacuba S.A., 197 F. Supp. 710, 717 (E.D. Va.), aff'd, 295 F.2d 24 (4th Cir. 1961). 14 See, e.g., Best Foods Inc. v. United States, 218 F. Supp. 576 (Cust. Ct. 1963) ; Schmidt Pritchard & Co. v. United States, 167 F. Supp. 272 (Cust. Ct. 1958). 13 Congress has comprehensively legislated in the trade field, starting with the passage of the Tariff Act of 1930." Two aspects of U.S. trade law ave fundamental. First, the overriding objective of legislative trade policy has been to encourage reductions in trade barriers, in order to open markets for American products abroad, and to encourage healthy import competition for our in- dustries at home.” Second, deviations to protect domestic 15 Tariff Act of 1930, Ch. 497, 46 Stat. 590, 19 U.S.C. §§ 1001- 1654; Trade Agreements Act of 1934, Ch. 474, 48 Stat. 943, 19 U.S.C. §§ 1351-1354; Trade Agreements Extension Act of 1943, Ch. 118, 57 Stat. 125; Trade Agreements Extension Act of 1948, Ch. 678, 62 Stat. 1053; Trade Agreements Extension Act of 1949, Ch. 585, 63 Stat. 697; Trade Agreements Extension Act of 1951, Ch. 141, 65 Stat. 72; Trade Agreements Extension Act of 1955, Ch. 169, 69 Stat. 162; Trade Agreements Extension Act of 1958, Pub. L. No. 85-686, 72 Stat. 673: Trade Expansion Act of 1962, Pub. L. No. 87-794, 76 Stat. 872, 19 U.S.C. §§ 1801-1991; Trade Act of 1974, Pub. L. 93-618 (Jan. 3, 1975) 19 U.S.C. §§ 2111-2487. Agricultural Act of 1956, Section 204, 7 U.S.C. §1854; Agricultural Adjustment Act of 1933, Section 22, 7 U.S.C. § 624. 16 This “free trade” policy reached its high point in the Trade Expansion Act of 1962, whose objectives were perhaps best de- scribed in President Kennedy’s message to Congress urging its enactment: Our efforts to prevent inflation will be reinforced by expanded trade. Once given a fair and equal opportunity to compete in oversea markets, and once subject to healthy competition from oversea manufacturers for our own markets, American man- agement and labor will have additional reason to maintain competitive costs and prices, modernize their plants, and in- crease their productivity. The discipline of the world market- place is an excellent measure of efficiency and a force to sta- bility. To try to shield American industry from the discipline of foreign competition would isolate our domestic price level from world prices, encourage domestic inflation, reduce our exports still further, and invite less desirable governmental solutions. * * * 7 Increased imports stimulate our own efforts to increase effi- ciency, and supplement antitrust and other efforts to assure competition. . . . Message From the President of the United States Relative to the Reciprocal Trade Agreements Program, Hearings on H.R. 9900 Before the House Comm. on Ways and Means, 87th Cong., 2d Sess., at 3 and 5 (1962). E, a a 3 Peet te Sued as sit abie ~ 1d nt . as. | oe oN, een ee Seen penneemen iassgttgoibanshanent i risa le eee erent, & 14 industry against import-related injury are only author- ized where specific, statutory substantive criteria are satisfied, and only after compliance with relevant proce- dural safeguards. As Judge Leventhal emphasized with regard to procedural safeguards: The Congressional pattern makes clear that such executive action [the imposition of restraints, in- cluding imposition through quota agreements] is tol- erated only if it is accompanied and safeguarded by procedural protections that ensure a right of com- ment by those whose interests may be affected. This not only avoids the vice of complete secrecy within the Government, it also avoids the vice of cozy confi- dentiality, in which the public is informed only when the matter is a fait accompli. App. 18a. In the present case, the respondents stated that quota protection was necessary to protect the domestic steel industry from injury caused by imports (D.C. Cir. App. 185a). In what is known as the Escape Clause (Sections 301, 302, 351 and 352 of the Trade Expansion Act of 1962, 19 U.S.C. $$ 1901, 1902, 1981 and 1982),'* Con- gress set forth the criteria which must be met and the procedures which must be followed (including a Tariff Commission investigation, a determination, and public hearings) before protection can be provided for injury resulting from imports. Once those criteria are met and those procedures followed, the President is authorized to impose a tariff or a quota (19 U.S.C. § 1981) or to negotiate an orderly marketing agreement (19 U.S.C. $ 1982)"* of the type which respondents have. concluded 17 The Escape Clause has been reenacted in the Trade Act of 1974, see note 2, supra, and again authorizes the President to achieve protection by negotiating restraint agreements to prevent injury to domestic industry and labor. 18In fact, concern in Congress about the inadequacy of non- public consideration by cabinet committees of the kind relied upon in this case played a significant role in the enactment of the Orderly Marketing Provisions. Hearings on H.R. 9900 Before the House Comm., on Way and Means, 87th Cong., 2d Sess., Pt. 6, pp. 3854 3855. 15 with respect to steel. The Orderly Marketing Agreement provision was a tailor-made response’ to Executive branch concern “about the serious problem that excessive imports have posed for our steel workers and our steel industry” (D.C. Cir. App. 185a), and to the stated objec- tive of “enabl [ing] domestic steel producers to make their plans with confidence that imports will not be disruptive in the domestic market” *° (D.C. Cir. App. 186a). In sum, Congress has authorized the President to ne- gotiate restraint arrangements of ‘the type utilized for steel, and to alleviate the very problems respondents believe to exist in the steel industry." But Congress has 19 Respondents originally contended in the, District Court that they were exempt from the Escape Clause and the Orderly Market- ing Agreement provision because’ the steel industry could not meet the test of that clause—it could not show, they believed, that injury was concession-related. Respondents changed their emphasis and developed an enforceability argument when petitioner pointed out that steel was, indeed, a concession item. But, the Department of | State’s argument is, in any event, preposterous on its face. The Department’s position, quite simply, is that in any situation where an industry cannot meet the criteria carefully defined by Congress, the President is still free to achieve import restraints, and, in- deed, he is free to do so without regard for any procedural re- quirements whatever. It would appear, then, that the more Congress attempts to legislate free trade and to define situations in, which the President may achieve import restraints pursuant to procedural requirements, the more it thereby expands the circumstances under which the President may deviate from the Congressional policy of free trade without regard for any criteria or procedural require- ments. The paradoxical result is that if an industry is injured, it must follow procedures ; and if it is not injured, it may simply have the Department of State negotiate the same quota agreements with- out the inconvenience of a Tariff Commission investigation and hearing. : 20 Senator Muskie, who introduced the provision in the Senate, described it as providing “... 4 tool for the President to use .. - in, giving domestic manufacturers a breathing space in which to adjust to changing competitive conditions” 108 Cong. Rec. 19859 (1962) (Remarks of Senator Muskie). For its purpose, see S. Rep. No. 2059, 87th Cong., 2d Sess., 1962 U.S. Code Cong. & Ad. News at 3115. 21 The Congress has also enacted Section 232 of the Trade Ex- pansion Act of 1962 (as amended by Section 127 of the Trade Act | ed a “a & 8 H a 2 3 etary SPOR WALD he —— 16 granted such authorization only in the context of sub- stantive criteria and procedural safeguards, not utilized in connection with steel, to assure that those seeking a deviation from free trade policy could demonstrate that they were entitled to relief. The steel quota agreements are invalid because, in concluding them, the respondents ignored the requirements imposed by Congress. The majority opinion of the Court of Appeals con- cluded that Congress had most likely by statute occupied the field of “enforceable” import, restrictions, “if it did not, indeed, have exclusive possession thereof by the terms of Article I of the Constitution” (App. 8a'. The majority, however, concluded that the steel quota agreements were unenforceable (i.e., because they did not “purport” to be enforceable contracts or because observance allegedly could not be compelled at the border), and therefore did not conflict with the trade laws (App. 8a) .** of 1974), the National Security Provision. Where 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 is authorized, after following specified procedures, to: . take such action, and for such time, as he deems necessary to adjust the imports of such article . . . so that such imports will not so threaten to impair the national security. 19 U.S.C. § 1862(b). ; Respondents claim this provision could not be utilized because the national security aspects were insufficient to trigger the provision (D.C. Cir. App. 116a). _ #2The concurring opinion of the Court of Appeals likened the steel restraint arrangements to “jawboning” and hence concluded them unenforceable. But the facts of this case are far from a “jawboning” situation. The Department of State’s actions did not merely involve approaches or exhortations or expressions of view or attempts to “reason together”. Involved here were painstaking negotiations over a period of many months between foreign steel representatives and a U.S. delegation, leading to the creation of clear-cut obligations in a detailed written restraint agreement. 17 The majority is patently incorrect in framing the question in terms of “enforceable” and “unenforceable” restraints. The majority’s novel doctrine, conceived and articulated without reference to any judicial precedent, is inconsistent both with the plain language of the relevant statutory provision and the purpose and logic of the Con- gressional scheme. The Orderly Marketing Agreement provision of the Escape Clause, 19 U.S.C. § 1982(a), plainly covers all quota agreements. It states the President may negotiate quota agreements only after “receiving an affirmative finding of the Tariff Commission under Section 1901 (b)” that imports into the United States of the articie are causing or threatening to cause serious injury to such industry. The language does not exempt a particular type of restraint agreement. It says simply that the requirement of an affirmative finding must be met for quota agreements whether or not the President sub- sequently chooses to invoke the separate authority to ex- clude goods shipped in excess of the quota provided in the agreement. Not only is the language of the statute plain, but its purpose and logic wholly refute the majority’s holding. Congress has, as clearly as is possible, stated that there shall be free trade, except where certain circumstances exist justifying a deviation. The majority has contrived an unprecedented and unsupported distinction which im- putes to Congress the bizarre intention to exempt re- straints which can and have undercut the very purpose of its comprehensive free trade legislation. For, an “un- enforceable” quota agreement is the functional equivalent of an “enforceable” agreement. As J udge Leventhal stated: “Here the undertakings have an economic effect that parallels that of import quotas proclaimed by the President” (App. 14a). In the case of the (allegedly ‘“‘un- forceable”) steel quota agreements, as in any “enforce- able” agreement, the foreigners assumed a clear-cut ob- BR AR SN © 18 litigation, stated they would comply with that obligation, and in fact reduced sales to the U. S. in accordance with their obligations. If an “unenforceable” or “enforceable” restraint agreement works properly, the issue of enforce- ment never arises. The distinction thus not only fails to reflect the realities of international trade relations, but files in the face of the fundamental doctrine that Presi- dential power must yield to Congress’ regulation of com- merce.** II. The Decision Of The Court Of Appeals Conflicts With The Decision Of Another Court of Appeals On The Same Matter Of Executive Authority To Con- clude Quota Agreements. On‘ one prior occasion a federal appellate court has addressed itself directly to the question of the Executive’s authority to negotiate and conclude a voluntary quota agreement without complying with the criteria and pro- cedures of an existing statute authorizing the imposition of restraints. In United States v. Guy W. Capps, Inc., 204 F.2d 655 (4th Cir. 1953), aff'd on other grounds, 348 U.S. 296 (1955), Chief Judge Parker unequivocally held (1) that a “voluntary” quota agreement negotiated by the Executive was void because the Executive failed to comply with statutory criteria and procedures; and (2) that the Executive could not negotiate a “voluntary” quota agreement on the basis of inherent Executive authority. 23 While petitioner believes that the majority’s distinction is erroneous, nevertheless the majority’s characterization of the steel quota agreements as unenforceable is incorrect. As Judge Leventhal notes (App. 15a), they involve written commitments which, under the doctrine of promissory estoppel, can be enforced in U.S. courts. See, e.g., Dickerson v. Colgrove, 100 U.S. 578, 580 (1880) ; Goodman v. Dicker, 169 F.2d 684, 685 (D.C. Cir. 1948). Furthermore, they are enforceable under international law in an international forum. See Eastern Greenland Case, Denmark v. Norway, [1938] P.C.I.J., Ser. A/B, No. 3. 19 Under Section 22 of the Agricultural Adjustment Act of 1933, as amended, 7 U.S.C. § 624, the Executive was authorized, after due investigation and appropriate find- ings by the Tariff Commission, to proclaim quotas on agricultural imports 1n order to protect threatened price support programs. The Secretary of Agriculture, with- out following procedural safeguards, sought to protect a domestic commodity program from imported Canadian agreed to, and did, require that exporters include in con- tracts provisions limiting use of potatoes to be sold to customers in the United States. The United States sued such a customer for failure to comply with such a con- tractual provision. The Fourth Circuit held that the “voluntary” quota agreement was invalid. It said: We think that whatever the power of the executive with respect to making executive trade agreements regulating foreign commerce in the absence of ac- tion by Congress, it is clear that the executive may not through entering into such an agreement avoid complying with a regulation prescribed by Congress _. , The executive may not by-pass congressional limitations regulating such commerce by entering into an agreement with the foreign country that the regulation be exercised by that country through its control over exports. - - - 204 F.2d 659-660. During the course of the argument, the government contended that, quite apart from the statute, it had in- herent authority to enter into a voluntary quota agree- ment. The Court give this argument short shrift: [Whhile the President has certain inherent powers under the Constitution . . ., the power to regulate interstate and foreign commerce is not among the powers incidental to the Presidential office, but is expressly vested by the Constitution in Congress 20 * * * Imports from a foreign country are foreign commerce subject to regulation, so far as this coun- try is concerned, by Congress alone... . Even though the regulation prescribed by the executive agreement be more desirable than that prescribed by Congres- sional action, it is the latter which must be accepted as the expression of national policy. 204 F.2d at 659, 660. Finally, the Court emphasized that: Since the purpose of the agreement as well as its effect was to bar imports which would interfere with the Agricultural Adjustment program, it was neces- sary that the provisions of this statute be complied with and an executive agreement excluding such im- ports which failed to comply with it was void. 204 F.2d at 659. In Guy Capps, as here, Congress had enacted a statute addressed to the problem of concern to the Executive branch. The statute in Guy Capps authorized trade re- strictions when imports threatened programs under the Agricultural Adjustment Act; in the present case, the “Escape Clause” authorizes trade restrictions (of the exact type used, i.e., negotiated quota agreements) when imports threaten to cause or have caused injury to a domestic industry—the very problem that motivated the Department of State to act. The conclusion that respondents lacked authority to negotiate the steel restraint agreements is far more com- pelling than the decision reached by the Guy Capps Court in voiding the potato agreement for two reasons. There was nothing in the Agricultural Adjustment Act, nor in any other statute in existence at that time, which dealt with the subject of voluntary quota agreements (or, in- deed, enforceable quota agreements). Nor was there any indication that Congress had contemplated an emergency situation, like that created by the bumper potato crop, which could not await the completion of a Tariff Com- 21 mission investigation when it enacted Section 22. Thus, it could quite reasonably be argued in Guy Capps that poth the particular import problem at issue and the kind of action taken by the Executive branch in response were outside the contemplation of Congress in Section 22 or in any other statutory provision. Indeed, it could be said in that case that the only way for the Executive branch to accomplish the purposes of Section 22 was to take the action which it took. Nonetheless, the Court of Appeals found that action invalid. By contrast, here, the respondents have not been able to argue that the Department of State based its “unen- forceable” actions upon the very criteria specified in the statutory provisions which authorized action of the kind in question; they have been compelled instead to argue that the Department chose the route of an “ynenforceable” voluntary quota agreement because the statutory criteria authorizing negotiation of an “enforceable” voluntary quota agreement would have been difficult to meet. And here, respondents have not been able to argue that ad- herence to the procedural prerequisites for “enforceable” Executive action would have meant frustration of the statutory objective because of an emergency situation not contemplated by Congress; they have been compelled instead to argue that the President acted outside the statutory criteria in order to achieve a departure from statutory policy.” To let the steel quota agreements 24 Furthermore, the Guy Capps case cannot be distinguished from the present case on the grounds that Guy Capps involved “enforce- able restraints” while the steel restraint arrangements are “un- enforceable”. First, the type of enforceability of particular im- portance to the majority opinion in this case is halting violative importations at the border. The Guy Capps agreement did not pro- vide for such enforcement, and the government did not attempt such enforcement. Second, the remedy sought in the lawsuit was predicated, not on the underlying restraint arrangement, but on a subsequent private contract. The government could, in the case of steel, seek precisely the same type remedy. Following the con- 99 — J stand thus would be plainly in conflict with the Fourth Circuits decision in Guy Capps. CONCLUSION For the above reasons, a Writ of Certiorari should issue to review the judgment and opinion of the District of Columbia Circuit. Respectfully submitted, RICHARD A. FRANK ELDON V. C. GREENBERG JOSEPH N. ONEK CENTER FOR LAW AND SOCIAL POLICY 1751 N Street, N.W. Washington, D. C. 20036 (202) 872-0670 Attorneys for Petitioner Dated: March 3, 1975 Washington, D. C. clusion of the steel restraint arrangements, various foreign steel companies, in cartel fashion, allocated among themselves the quota provided their country in the arrangements. If a foreign company were to ship to the U.S. more than its allocated share, the U.S. would be in precisely the same position as it was in Guy Capps, and could sue as a third party beneficiary, alleging violation of the implementing cartel agreement and seeking damages for the over- shipment or injunctive relief. la 506 FEDERAL REPORTER, 2d SERIES CONSUMERS UNION OF U.S., INC. v. Henry 4. KISSINGER, Secretary of State, et ul., United States Stee! Corpora- tion, Appcttast. CONSUMERS UNION OF U.S., ENC. .. Menry A. KISSINGER, Secretary of State, and dulius L. Katz, Deputy Assistant Secretary of State for Economic Af- fairs, Appellants. CONSUMERS UNION OF U. S., INC. Vv. Renry A. KISSINGER, Secretary of State, et al., Arscrican Iron and Sice! institute, Appellant. CONSUMERS UNION OF U.S. INC., Appeiiant, v. Menry A. KISSINGER, Secretary of State, et al. | CONSUMERS UNION OF 1 v. et al., British Steel Corpo Appeliant. CONSUMERS UNION OF U.5., INC. v. JAPAN IRON AND STEEL EXVORT- ERS ASSOCIATION and Nippon Steel Corporatioa, Appellants. CONSUMERS UNION OF U. S., INC. v. Henry A. KISSING®R, Secretary of State, et a!., Fried, Krupo ilucttenwerke, A.G., Appeliant. Nos, 72-1005 to 73-1097, 73-1132, 73-1133, 73-1135 and 73-1158. United States Court of Appeals, District of Columbia Circuit. Argued May 31, 1973. Decided Oct. 11, 1974. Rehearing Denied Dec. 2, 1974. Consumers organization brought suit against the State Department, and foreign and domestic stcel producers, in- dividually and in association, challenging efforts by the Executive Branci: to bring about reduction in steel imports by means of self-imposed limitations on foreign producers. The United States District Court for the District of Colum- bia, Gerhard A. Gesell, J., entered mem- orandum of opinion, declaration and or- der in which it declared that the Execu- tive had no authority to exempt the vol- untary restraint agreements from the antitrust Jaws and that the Executive was not preempted and could enter into agreements or diplomatic arrangenients with private foreign stecl concerns 50 long us those undertakings did not vio- late legislation regulating furcign com- merce, and cross appeals were taken. The Court of Appeals, McGowan, Cir- cuit Judge, held that declarations in District Court’s order with respect to antitrust exemption were required 10 be vacated since for all practical pur- poses the Sherman Act issue disappear- ed from ‘he case when plaintiff stipu- lated its dismissal with prejudice, tnat without a proper delexzation on part of Congress the President cannot in- crease or decrease tarif{s or impose 1an- datory import quotas but that actions of the Exeentive in securing instant voluntary agreements were not a res ulation of forcign commerce foreclosed w the Exccutive either by the Constitu- tion or by the Trade Expansion Act. Modified and affirmed. Danaher, Senior Circuit Judge, fil- ed concurring opinion; Leve athal, Cir- cuit Judge, dissented and filed opinion. 1. Declaratory Judgment 385 Declarations in distiict court’s or- der that the Chief Execut:v- hac no au- thority to exempt from tne antitrust laws voluntary arrangements whereby foreign steel producers would limit their im- ports into United States and that such arrangements weie not exempt were vacated since Sherman Act issue had disappeared from suit challenging such arrangement when plaintiff stipulated its dismissal with prejudice; in any event since there was nothing in the re- . + é eo N ‘ ee eS eT ees ere ae % ied voes ehiayy aR, adi. lee tats CONSUMERS UNION OF U. S., INC. v. KISSINGER Cite as 500 F.2d 136 (1874) cord to show the Executive as purporting to grant such an exemption, such obser- vations did not have the stature of a declaratory disposition of an actual con- troversy. Sherman Anti-Trust Act, § 1, 15 US.C.A. § 1. 2. Customs Duties 3 Trade Expansion Act of 1962 has as its principal purpose the stimula- tion of the economic growth of the United States and the maintenance and enlargement of foreign markets for its products. U.S.C.A.Const. art. 1, § 8, cel. 3; Trade Expansion Act of 1962, § 102 et seq., 19 U.S.C.A. § 1801 et seq. 3. Customs Duties 6 Without a proper delegation, such as that contained in the Trade Expan- sion Act, the’President may not increase or decrease tariffs, issue commands to the customs service to refuse or delay entry of goods into the country or im- pose mandatory import quotas; to make use of such delegated power the Presi- dent is required to proceed strictly in accordance with the procedures speci- fied in the statutes conferring the dele- gation; however, where he does not pre- tend to the possession of such power no such conformity is required. Trade Expansion Act of 1962, §§ 261, 221, 223, 301 et seq., 351, 352, 19 U.S.C.A. §§ 1821, 1841, 1843, 1901 ct seq., 1981, 1982. 4. Commerce @79 Custoras Duties @6 Actions of the Chief Executive in attempting to bring about reductions in stcel import by means of self-imposed limitations on foreign producers, with President’s actions taking form of let- ters stating the signatories’ intention to limit exports of steel products to United States and to hold themscives ready to consult with representatives of United States Government when any problem or question might arise with respect to such voluntary undertaking, did not constitute a regulation of for- eign commerce foreclosed to the Presi- dent by the Constitution or the Trade Expansion Act. U.S.C.A.Const. art. i 506 F.26—9¥2 § 8, cl. 3; Trade Expansion Act of 1962, § 102 et seq., 19 U.S.C.A. § 1801 et seq. —_——_>——_—_ Abe Krash, Washington, D.C., with whom Jerome I. Chapman and David Bonderman, Washington D.C., were on the brief, for appellant in No. 73-1095. Irwin Goldbloom, Atty. Dept. of Jus- tice, with whom Morton Hollander and David J. Anderson, Attys. Dept. of Jus- tice J. Dapray Muir, Asst. Legal Advis- er, Dept. of State, were on the brief for appellanis in No. 72-1096. Lloyd N. Cutler, Washington, D.C., with whom Max O. Truitt, Jr., Daniel K. Mayers and Ronald J. Greene, Wash- ington, D.C., were on the brief, for ap- pellants in No. 73-1097, also argued for all other appellants. William B. Pennell, New York City, with whom Richard A. Whiting, Monroe Leigh, Danicl J. Plaine and Virginia M. Dondy, Washington, D.C., were on the brief, for appdllant in No. 73-1133 also argued for ajjpellants in No. 73-1135 and No. 73-1133. Steven Brodsky, Washington, D.C., with whom kichard A. Frank, Washing- ton, D.C., pre on the brief, for appellant in No. 72-1 2 and uppellee in Nos. 73- 1695, 73- caoa. 92- 1097, 73-1133, 73- 1135, and 73-11 Noel Hemmen¢inger, Washington, D. C., and Isaac Shapiro, New York City, were on the bri ’ for appellants in No. 73-1135. Milo G. Coerher, Washington, D.C., was on the brief for appellant in No. 73- 1138. Shirley Z. Johnson, Washington, D.C., filed a brief on behalf of Philip A. Hart as amicus curiae urging affirmance. Before DANAHEE, Senior Circuit Judge, and MceGOWAN and LEVEN- THAL, Circuit Judges. McGOWAN, Circuit Judge: These consolidated cross-appeals are Girected respectively to two declarations made by the District Court in a suit 3a 506 FEDERAL REPORTER, 2d SERIES challenging efforts by the Executive Branch of the United States Government to bring about reductions in steel im- ports by means of self-imposed limita- tions on foreign producers. Arrayed against each other are a complaining consumers organization, on the one side, and, on the other, the State Department, and foreign and domestic steel pro- ducers, individually and in association. In the form eventually taken by the liti- gation in the District Court, we consider that the only question before us is whether the actions of ‘the Exccutive were a regulation of forcign commerce foreclosed to it generally by Article I, Section 8, Clause 3 of the Constitution, and in particular by the Trade Expan- sion Act of 1962, 19 U.S.C. § 1801 et seq. To the extent that the District Court declared no such conflict to exist, we affirm its decision. I Steel imports into the United States increased more than tenfold over the pe- riod _ 958-68, ¥ the great bulk of im- ports coming from Japan and the coun- tries of the European Communities." The effect of this development on the domestic stecl industry, whica is deemed to be of great importance to the nation’s security as well as to jts peacetime econ- omy, became a matter of widespread con- cern. In 1968 bills with substantial backing were introduced in Congress to impose mandatory import quotas on steel. {. The District Court heard the matter on cross-motions for summary judgment, and the facts are not in dispute. This section of the opinion draws mainly upon the affidavit of Julius L. Katz, ove of the State Department defendants and Deputy Assistant Secretary of State for International Resources and Food Policy, filed in support of the motion for sum- mary judgment. 2. The bulk of steel import increases were not attributed to the Kennedy Round reductions in tariffs, which would be continuing in Da- ture, because they predated the effective dates of those reductions, and cost and price dif- ferentials between foreign and domestic prod- ucts greatly exceeded the pre-reduction tariffs. The Executive Branch regarded the problem created by steel imports as tem- porary in nature? and thus amenable to a short-term solution.? It concluded, moreover, that unilaterally imposed man- datory quotas would pose a danger of retaliation under the General Agreement on Trade and Tariffs, prove inflexible and difficult to terminate, and have a seriously adverse impact on the foreign relations of the United States. Import limiting agreements negotiated with other governments were likewise reject- ed on the State Department's advice that negotiated official restrictions, if achiev- able, would have political consequences for the foreign governments that would also affect our external affairs adverse- ly. Accordingly, the Executive Branch concluded in 1968 that voluntary import restraint undertakings by foreign pro- ducers offered the best hope of alleviat- ing the domestic industry’s temporary problems at the least cost to United States foreign, economic and trade poli- cies. After an initial showing of interest by the foreign producer associations, State Department officials entered into dis- cussions that lasted from June to Decem- ber, 1968, and resulted in letters being sent to the Secretary in which the Japa- nese and European producer associa- tions stated their intentions to limit steel shipments to the United States to specified maximum tonnazes for each of the years 1969, 1970, and 1971.4 During 3. Factors believed to cause the import in- crease, such 28 excess capacity and & tech- nological advantage in the foreign stecl in- dustry. were both regarded as probably short- run phenomena. Whether foreign govern- ments’ policies of assisting their steel indus- tries, amd lower labor costs abroad, were also thought to be temporary in nature is not clear. 4. The letters to the Secretary, dated Decem- ber 23, 1968, were appros ingly read by Presi- dent Johnson after their receipt. and were transmitted by the Secretary on January 14. 1969, to the respective Chairmen of the Sen- ate Finance Committee avd the House Ways and Means Committee. The recipients there- upon issued & joint announcement welcoming rrr em es 4a CONSUMERS UNION OF U. S., INC. v. KISSINGER Cite as 506 F.2d 136 (1974) 1970, domestic industry and union rep- resentatives urged the State Department to seek renewal of the restraints beyond 1971 to provide greater time within which to achieve needed changes, and the House Ways and Means Committce issued a report to like effect. When various executive organs, such as the President’s Council of Economic Advi- sors, had made the same recommenda- tion, the President directed the Secre- tary to seck extensions of the limitation representations. Such extensions, cover- ing 1972 through 1974, were forthcom- ing in letters dated early in May, 1972, and announced by the President ori May 65 The two 1972 letters are substantially alike. Each states the signatories’ intention to limit exports of stecl prod- ucts to the United States both in aggre- gate tonnage and, within such limits, in terms of product mix. Each represents that the signatories “hold themselves [itself] ready to consult with represent- atives of the United States Government on any problem or question that may arise with respect to this voluntary restraint undertaking” and expect the United States Government so to hold itself ready. In addition, each states that its undertaking is based on the as- sumptions that (1) the effect will not he to place the signatories at a disadvantage relative to each other, (2) the United States will take no unilateral actions to restrict exports by the signatories to the United States, and (3) the representa- tions do not violate United States or international laws. the voluntary restraints and relensing the texts of the producers’ and the Secretary's let- ters. No mandatory import quota legislation = recommended by the committees there- after. $. The British steel industry, which had not participated in the 1965S statements of intent, joined in the 1972 letter from the European Communities steel producer associations. It did so through both the Britixh Independent Steel Producers Association and the British II The original complaint in this action contained two separate and distinct claims. They were respectively denomi- nated “FIRST CLAIM (Antitrust)” and “SECOND CLAIM (Unlawful Action by State Department Officials)”. The first claim sought declaratory and injunctive relief with respect to what were said to be continuing violations of Section 1 of the Sherman Act, 15 U.S.C. § 1. The court was asked to declare the 1972 let- ters of intent to be in violation of that statute, and to enjoin ali of the named defendants from engaging in any act to effectuate the import reductions con- templated by those letters. The second claim, as its title implies, sought relief only with respect to the State Department defendants, who were said to have violated the law by “facili- tating, bringing about and negotiating” the limitations set forth in the 1972 letters of intent without compliance with Section 301 or Section 352 of the Trade Expansion Act of 1962. The re- lief sought was a declaration that the 1972 export limitations are illegal, and an injunction addressed to all the de- fendants, prohibiting acts in furtherance of the arrangement. After answers had been filed by some of the defendants and a motion to dis- miss or alternatively for summary judg- ment had been made by the State De- partment defendants, the parties stipu- lated that the first claim in the complaint be dismissed with prejudice, and an amended complaint was filed.. The vio- lation of law alleged in the amended com- Steel Corporation, an enterprise controlled by the Mritish government, 6. It is undisputed that “{i]n negotiating the Orrangements aid all of their specifie termes, the ‘State Department officers explained to the foreign producers that they were being asked to make the requested commitments by the Executive Branch of the United States Government on the ground that they were in the national interest of the United States.” JA 1550. 5a 506 FEDERAL REPORTER, 2d SERIES plaint was that the State Department officials had acted to regulate foreign commerce within the meaning of Article 1, Section 8, Clause 3 of the Constitu-- tion, and of the laws relating to the reg- ulation of foreign trade set forth in Title 19 of the U.S.Code, including Sections 301 and 352 of the Trade Expansion Act of 1962. The foreign producer defend- ants ‘were said to be violating the same laws to the extent that they took steps to effectuate the limitations sought by the defendant State Department officials acting in excess of their authority. The relief sought was a declaration that the actions of the State Department officials in ‘seeking the export limitations were ultra vires, and an injunction against the defendants from furthering the 1972 letters of intent in any way. Answers to the amended complaint were filed by certain of the defendants and others moved fcr summary judg- ment, as did the plaintiff. The matter came on for hearing in the District Court on the cross-motions for summary judgment. Its disposition was embodied in what is styled a “Memorandum Opin- jon, Declaration and Order.” The court concluded its discussion of the issues by making two declarations. The iirst was that “the Executive has no authority un- der the Constitution or acts of Congress to exempt the Voluntary Restraint Ar- rangements on Stec! from the antitrust laws and that such arrangements are not exempt.” The second was that “the Executive is not preempted and may enter into agreements or diplomatic arrangements with private forcign stecl concerns so long as these undertakings do not violate legislation regulating for- eign commerce, such as the Sherman Act, and that there is no requirement that all such undertakings be first processed under the Trade Expansion Act of 1962.” The court then went on to say that, although the question of whether there was a violation of the Sherman Act was 7. In o post-argument communication to the District Court, the Department of Justice represented that ‘no assurances of immunity from the antitrust laws had been given to any- / not before’it by reason of the stipulated dismissal of the antitrust claim with prejudice, it was apparent to the court that “very serious questions can and should be raised as to the legality of the arrangements under the [Sherman] Act”; and the parties were “urged to reexamine their positions and premises in the light of this memorandum, and the declarations made.” The court characterized injunctive relief as inap- propriate, and denied .the respeetive motions for summary judgment to the extent that they were “inconsistent” with the declarations made by it. It concluded vy saying that “no further proceedings are required,” and “no costs will be awarded.” Appeals were filed by the State De- partment defendants and by the domestic and foreign producers. The plaintiff filed a cross-appeal “insofar as any dec- laration, or ruling on the reiief re- quested, has been decided adversely to the plaintiff.” Il A’ substantial portion of the briefs and argument before us has been de- voted to the Sherman Act. The defend- ant-appellants are, not surprisingly, per- turbed by some of the comments made by the District Court with respect to possible Sherman Act liability. Al- though the court stated in terms that, by reason of the stipulation of dismissal, “the question of whether or not a viola- tion of the Sherman Act is present is not before the Court to decide,” it did not leave the matter at that. One of its dee- larations is that the Executive has no authority to exempt frora the antitrust laws the arrangements here involved, and “that such arrangements are not exempt.” {1] Since there is nothing in the rec- ord that shows the Executive as purport- ing to grant such an ex ption,? this one. It went on to Kay that “the Executive Branch did not and it- would not request any party to enter into any arrangement it be- lieved to be unlawful.” ‘ atin hase aime os porate all CONSUMERS UNION OF U.S., INC. v. KISSINGER Cite as 06 F.2d 136 (1974) observation by the court does not have the stature of a declaratory disposition of an actual controversy. The court’s other comments in this connection are not couched in adjudicatory form, as in- deed, so the court recognized, they could not be in the light of the abandonment by the plaintiff of its antitrust claim. With the declaration vacated, as we shall direct in our judgment, these expressions of the court’s opinion are without judi- icial force or effect and are not appro- priate for pursuit upon appeal. We think that the Sherman Act issue, for all practical purposes, disappeared from this case when the plaintiff, for reasons best known to itself, stipulated , its dismissal with prejudice. It is ap- parent from the face of the original complaint that the Sherman Act claim. was originally conceived by the plaintiff as a vital aspect of its lawsuit. Its reso- lution would almost certainly have re- quired the exploration by adversarial trial of a number of complex questions of fact and law, aad the making of legal rulings in an area not distinguished for its simplicity. When the plaintiff, con- fronted by that formidable prospect, elected to abandon its antitrust claim, the Sherman Act could no longer play a sig- nificant part in this controversy, and we have no occasion to concern ourselves 8. As might be expected in light of the stipu- Jation, the amended co: yplaint nowhere refers expressly to the Sherman Act. Under the caption “VIOLATION OF LAW § AL- LEGED,” it charges that the actions of the State Department defendants constitute a pro- hibited regulation of foreign commerce “with- in the meaning of the luws of the United States relating to the regulation of foreign trae aos set forth in Title 19 of the Vahes States Code, including Sections 201 and 252 of the Trade Expansion Act of 1962, 19 U.S.C. Sections 1901, 1982." Having asserted these actions to be unlawful for this reason, the complaint does fo on to say that the State Department defendants, by securing the lim- {tation arrangements in a manner not au- thorized by Congress (i. ¢., by not using the provisions of Title 19), acted in conflict with the power of Congress “to determine the anti- ‘ trust’ policy of the United States by enacting the antitrust laws and to determine the cir- cumstances under which exceptions to those of intent, with the discussions by the parties of the precise reach of that statute. f IV [2] We turn, then, to the District Court’s declaration that, in respect of the actions of the Executive culminating in the undertakings stated in the letters “the Exccutive is not pre- empted . and that there is no requirement that all such undertakings ‘be first processed under the Trade Ex- pansion Act of 1962.” That statute, as its name suggests, had as its principal purpose the ‘stimulation of the economic growth of the United States and the maintenance and enlargement of foreign markets for its products® This was to be achieved through trade agreements reached by the President with foreizn countries. Title Il] of the Act provided that, fora period of five years (1962-67),‘the President was au- thorized to enter into such agreements whenever he determined that any exist- ing tariff duties or other import restric- tions of either the United States or any foreign country were unduly burdening and restricting the foreign trade of the United States. Upon reaching. any such trade agreement, the President was dele- ‘gated the unmistakably legislative power to modify or continue existing tariffs or laws shall be permitted.” To the extent that this seems to say that there was an antitrust violation because the State Departinent of- ficials did not employ the provisions of Tithe 1%, the point fails in the light of our boliing hereinafter that the Executive did not engage in conduct implicating thom provisions, We note that the third aud last paragraph under this caption in the amemled conpiaint alleges that the foreign defendants acted in violation only of provisions of Title 19, whieh, of course, does net contain the Sherman Act. The domestic stecl producers, in our reading of the amended complaint, are not alleged to have acted in violation of any luw. . 9. The other stuted purposes were “to strenzth- eu economic relations with foreiga countries through the development of open and nendie- criminatery trading in the {ree world”; and “to prevent C. ist ec pestle By 19 U.S.C. § 1501. . ERR oh.) were Vo ae Ta 506 FEDERAL REPORTER, 24 SERIES other import restrictions, to continue existing duty-free or excise treatment, or to impose additional import restric- tions, as he determined to be necessary or appropriate to the carrying out of the agreement. 19 U.S.C. § 1821. In con- nection with the first two of these pow- ers, the Tariff Commission was given an advisory function, which included pub- tic hearings; and public hearings were also directed to be held, by an agency designated by the President, in connec- tion with any proposed trade agreement. 19 U.S.C. §§ 1841, 1843. Title III of the Trade Expansion Act of 1962, recognizing that domestic inter- ests of various kinds may be adversely affected by concessions granted under trade agreements, authorizes the making of compensating adjustments of various kinds. Section 301 (19 U.S.C. § 1901) provides that the Tariff Commission shall undertake investigations of injuries allegedly being done to domestic busi- nesses or workers by such things as in- creased imports flowing from a trade agreement. After holding public hear- ings, the Tariff Commission shall make a report to the President. If it affirma- tively finds injury to domestic industry, the President may under Section 351 increase or impose tariff duties or other import restrictions, 19 U.S.C. § 1981, or alternatively he may under Section 352 negotiate agreements with foreign gov- ernments limiting the export from such countries to the United States of the article causing the injury. 19 U.S.C. § 1981. If this latter option is taken, the Act provides that the President is authorized to issue regulations govern- ing the entry or withdrawal from ware- 10. The Katz affidavit asserts that considera- tion was given to the utilization of both See- tion 252 and Section 232. The former “could not seriously be considered” because it was in terinn made available by Congress only for the purpose of xoftening injuries to domestic commerce caused in major part by prior con- cessions in trade agreements; and this was pot a major cause in this instance. As to Sec- tion 232, national security was only one of the factors contributing to the problem, and the attempt to solve it by method which armed house of the article covered by the agree- ment. The foregoing description of the Trade Expansion Act of 1962 covers, among others, Sections 301 and 352. They are the only provisions expressly identified in the amended complaint as constituting the allegedly preemptive exercise by Con- gress of its constitutional power to regu- late foreign commerce that, so it is said, forecloses the actions of the Executive challenged in this case. The description extends also to Sections 302 and 351, which are referred to in plaintiff-appel- lant Consumers Union's brief, as is also Section 232, 19 U.S.C. § 1862. This last is the so-called national security clause which provides that the President shall not decrease or eliminate tariffs or other import restrictions if to do so would impair the national security. The Director of the Office of Emergency Planning is directed to investigate any situation where imports threaten to im- pair the national security; and if he finds such threat, and the President con- curs, action shall be taken “to adjust the imports” of the article in question, which means that the article may by regulation be excluded from entry or withdrawal from warehouse.'® [3] What is clear from the foreyoing is a purpose on the part of Congress to delegate legislative power to the Presi- dent for use by him in certain defined circumstances and in furtherance of cer- tain stated purposes. Without such a delegation, the President could not in- crease or decrease tariffs, issue com- mands to the customs service to refuse or delay entry of goods into the country, or impose mandatory import quotas."! the President with legixlative power fo stop foreign imports at the water's edge would have had on unfortunate impact on foreign trade poliey and international relationship. il. The United States Customs Court has quite recently invalidated the imposition by l’resi- dential proclamation of a 10% supplemental tariff increase on imported merchandise. Yoshida International, Inc. v. United States, 378 F.Supp. 1155 (Cust.Ct.1974). This action was held by the court to be an exercise of leg- 8a CONSUMERS UNION OF U. S., INC. v. KISSINGER Cite as 500 F.2d 1386 #:974) To make use of such delegated power, the President would of course be re- quired to proceed strictly in accordance with the procedures specified in the statutes conferring the delegation. Where, as here, he does not pretend to the possession of such power, no such conformity is required. {4] The steel import restraints do not purport to be enforceable, either as contracts or as governmental actions with the force of law; and the Execu- tive has no sanctions to invoke in order to compel observance by the foreign pro- ducers of their self-denying representa- tions. They are a statement of intent on the part of the foreign producer as- sociations. The signatories’ expecta- tions, not unreasonably in light of the reception given their undertakings by the Executive, are that the Executive will consult with them over mutual concerns about the steel import situation, and that it will not have sudden recourse to the unilateral steps available to it under the Trade Expansion Act to impose legal restrictions on importation. The Presi- dent is not bound in any way to refrain from taking such steps if he later deems them to be in the national interest, or if consultation proves unavailing to mect unforeseen difficulties; and certainly the Conyress is not inhibited from enact- ing any legislation it desires to regulate by law the importation of steel. The formality and specificity with which the undertakings are expressed does not alter their essentially precatory nature insofar as the Executive Branch is concerned. In effect the President has said that he will not initiate steps to limit stcel imports by law if the vol- ume of such imports remains within tol- erable bounds, Communicating, through the Secretary of State, what levels he ixlative power by the Executive in tho regula- tion of foreign commerce, for which no dele- gated authority could be discerned in the stat- utes relating to turiffs. We mention the case not with reference to the rightness or wrong- ness of the decision but ouly becouse of the contrast between the action taken by the Ex- considers tolerable merely enables the foreign producers to conform their ac- tions accordingly, and to avoid the risk of guessing at what is acceptable. Re- gardiess of whether the producers run afoul of the antitrust laws in the manner of their response, nothing in the process leading up to the voluntary undertakings or the process of consultation under them differentiates what the Executive has done here from what all Presidents, and to a lesser extent all high executive of- ficers, do when they admonish an indus- try with the express or implicit warn- ing that action, within either their ex- isting powers or enlarged powers to be sought, will be taken if a desired course is not followed voluntarily. The question of congressional preemp- tion is simply not pertinent to executive action of this sort.” Congress acts by making laws binding, if valid, on their objects and the President, whose duty 1% is faithfully to execute the laws. From the comprehensive pattern of its legis- lation regulating trade and governing the circumstances under and procedures by which the President is authorized to act to limit imports, it appears quite likely that Congress has by statute oc- cupied the field of enforccable import re- strictions, if it did not, indeed, have exclusive possession thereof by the terms of Article I of the Constitution. There is no potential for conflict, however, be- tween exclusive congressional regulation of foreign commerce—regulation en- forced ultimately by halting violative importations at the border—and assur- ances of voluntary restraint given to the Executive. Nor is there any warrant for creating such a conflict by straining to endow the voluntary undertakings with legally binding effect, contrary to the manifest understanding of all concerned and, indeed, to the manner in which ecutive in that case, i. ¢., goods from abroad were excluded by furce of asserted law unless the supplemental dutics were paid, with wheat was done here, i. ¢., no legal power to exclude foreign steel imports was either claimed or exercised by the Executive. 9a 506 FEDERAL R EPORTER, departures from them have been treated.'* In holding, as we do, that the District Court did not err in declining to charac- terize the conduct of the Executive here under attack as in conflict with the Trade Expansion Act of 1962, we are not to be understood as intimating any views as to the relationship of the Sher- man Act to the events in issue here. The Sherman Act is not, a3 noted above, one of the regulatory statutes charged as preempting the ficld, and the question of its possible substantive applicability vanished from this case with the original complaint. The declaration in the District Court’s order with respect to antitrust exemption js vacated, and the declaratory aspect of that order is confined to the proposition that the State Department defendants were not precluded from following the course they did by anything in the Con- stitution or Title 19 of the U.S.Code. As so confined, the order appealed from is affirmed. It is so ordered. DANAHER, Senior Circuit Judge (concurring): Assuredly I join in Judge McGowan’'s excellent opinion. Pragmatic in the sense that it represents the view of a jurist skilled in law and state affairs, Judge McGowan’s treatment does not ignore the background of the problem here posed nor does it fail to take account of the allegations of Consumers’ amended complaint with its appended exhibits and the agreed statement of facts submitted in the District Court. I feel impelled to voice additional comment only in view of the approach of fered in dissent by our respected collcague. At the outset, J udge Leventhal correct- ly has stated that this case “must be decided as if the complaint had never contained a claim under the antitrust 12. Ip 1969 the Japanese, and in 1972 all for- eigu prvtucers, exported to the United States more ater) or particular types of steel product than their ucdertakings contemplated. In no 2d SERIES laws”. The original complaint had in- deed set up a purported antitrust predi- cate, but Consumers on the record caused that count to be dismissed “with prej- udice”. Next, even were we to assume that the District Court had jurisdiction under the Federal Declaratory Judgments Act, it was “under no compulsion to exercise that jurisdiction”, Brillhart v. Excess Ins. Co., 316 U.S. 491, 494, 62 S.Ct, 1173, 1175, 86 L.Ed.2d 1620 (1942), citing Actna Casualty Co. v. Quarles, 92 F.2d 321 (4 C.A. 1937) with Judge Parker's discussion at 325 which here we might profitably recall, For present purposes, we may pass that point for even though the antitrust claim had been dism'ssed, the District Judge declared that “the Executive is not preempted and may enter into agreements or diplomatic ar- rangements with private foreign steel concerns . + *'s Consumers Union of U. S., Inc. v. Rogers, 352 F.Supp. 1319, 1323 (DDC1973). (Emphasis added.) The District Judge explained that the Acts, such as those cited in the dissent, “cannot be read as a congressional direc- tion to the President prohibiting him from negotiating jn any manner with private foreign companies as to commer- cial matters”. Id. So we turn to the area urged in the dissent in rejection of the District Court's declaration and in the assertion that congressional authority is “plenary”. We may join issue here. 1. Our dissenting colleague regards the arrangements with the foreign private concerns as “solemn negotiated bilateral understandings”. The record shows that the private producers themselves limited their own exports. Our colleague sces the Executive in position to call upon nonjudicial exercises of power if the foreign producers violate the arrange- ments. He suggests, ©: g., that there case were the “excess” goods denied entry into the United States. Rather, consultations were sought and the next year's voluntary quota reduced by the amount of the excess. 10a CONSUMERS UNION OF U. S., INC. v. KISSINGER Cite ax 506 F.2d 136 (1974) could be “possibly a call to reduce as- sistance programs” to the country of a foreign producer. He ventures “Suppose the President directed customs officials to deny entry to United States ports of commodities violating the undertaking.” None of these things happened. Rather, the record shows, that during the years 1957 through 1968 there de- veloped an unprecedented increase in steel imports, particularly from produc- ers in Japan and European countries. Import tonnages of steel mill products in 1957 totaled 1,155,000 net tons which by 1968 had become 17,960,000 net tons. Bills were introduced in Congress di- rected toward the imposition of re- straints and controls of steel imports, with the result that worriment overtook our own officials as well as representa- tives of‘ forcign producers. A Japanese economic mission sent its chairman in March 1968 to discuss problems of the steel trade with the particular objective of avoidance of congressionally imposed limitations upon the entry of Japanese stecl. It is not to be doubted that importantly placed officials in our Executive depart- ments were fully aware of our tariff Jaws and regulations and of the legisla- tive restrictions upon Presidential action. By May 1968 Department of State of- ficials and European steel industry re- presentatives had joined in discussions which went forward through June and July 1968. Perhaps it is not too much to “suppose” (our colleague’s word) that President Johnson said “Why don’t you get those peuple in here and sce if you can reason together with them?"—~or words to that effect. Before the undertakings by and among the foreign steel producing companies were activated, the Department of State sought and obtained the views of mem- bers of Congress, representatives of do- §. Cf. United States v. Guy W. Capps, Inec., WS U.S. 206, at 207, 75 8.Ct. 326, 99 L.Ed. 829 (1955) refusing to pass upon the ruling by the court of appeals (204 F.2d at GOS) that an international agreement to limit Canadian 506 F.26—10 mestic steel producing interests, unions involved in the steel industry and others. II. So successful were the original three- year programs, so happily without inci- dent, that an extension for an additional three years went forward only to be challenged in this action. In this great nation with its complex economy and its varying conflicts re- quiring judicious accommodation, flex- ibility in achieving desirable results is a constant imperative. Fairly we may say that here there had been no Presi- dential action, legislative in character, undercutting the congressional preroya- tives deemed by the dissent to be “plen- ary”. If it be a penchant of our press to coin applicable expressions, “jawbon- ing” could here be taken as apt and that is what happened, nothing el!se.! Collaterally and obviously not here controlling, we mizht well today applaud exhortations by our officials to compan- ies producing oil in the Middle East to reduce their charges and to increase their exports of oil to our power starved economy. We might take it to be desir- able that coffee producing companies in nations such as Brazil and Cuiombia be induced by our officials not to exploit our dependence upon their product by the imposition of unreasonable and ex- orbitant charges for their coffee exports. Surely no formal trade agrecment should be required to persuade companies to export to us the bauxite so essential to the continued maintenance of our alumi- num industry. Judge McGowan, it is submitted, suc- cinctly and authoritatively has concluded that “the State Department defendants were not precluded from following the course they did by anything in the Con- stitution or Title 19 of the U.S.Code”. exports was void “as not authorized by Con- gress and aw contravening the provision for procedure through the Tariff Commission”, id. 348 US. at 301, 75 S.Cr. at 320. See Ap- pendix, id. at 205, 75 S.Ct. 326. lla 506 FEDERAL REPORTER, 2d SERIES LEVENTHAL, Circuit Judge (dis- senting): With all respect, I must record my dis- agreement with the ruling of the major- ity that the President had the authority to negotiate detailed arrangements with foreign steel producers to limit their shipments of products to the United States. © In my view, this case is controlled by Congress's evercise of its plenary au- thority over the regulation of foreign commerce through passage, over the past forty years, of legislation establishing a comprehensive scheme occupying the field of import restraints. While there is room for a role based on inherent au- thority of the executive, in this case the actions taken by the President are in- consistent, by fair implication, with the scheme Congress has provided. My point js not that the President has tuken the kind of action that Congress had forbid- den to the Executive. On the contrary, the statutes passed by Congress estab- lished a broad executive discretion, and with a subject like steel imports and the kind of expansive scope of the “national security” provision (which emerged in the 1950's and now appears in § 222 of the Trade Expansion Act of 1962) that permits a restriction of imports which threaten to impair the national security by weakening the internal economy, there is a likelihood that the President would have been able to make the findings re- quired by that law. But Congress has made the exercise of executive authority over import restraints dependent on pub- lic ventilation of the issues and has prescribed a procedure with safeguards and right of comment by affected inter- ests. The President has concededly not followed that procedure, and this course cannot stand consistently with the stat- utory pattern. Recent events, notably those affecting currency exchange rates and prices and supptics of fuels, have dramatically changed the economic climate that sparked these trade arrangements. While the particular issue may be less pressing, there has been no dilution of the principle that the Executive cannot circumvent procedures delineated by Con- gress. That principle is paramount even though it may sometimes lead judges to particular results that are dubious pragmatically. Compare Wilderness Society v. Morton, 156 U.S.App.D.C. 121, 479 F.2d 842 (1973); Natural Resources Defense Council, Inc. v. Morton, 148 U.S.App D.C. 5, 458 F.2d 827 (1972). I am not persuaded by the majority's pronouncement that the statutes are not pertinent to the present case because the arrangements, incorporated in letters from foreign steel producers which de- scribe themselves as “voluntary restraint undertakings,” did not contemplate the mandate of judicial enforceability. These undertakings by the President and foreign steel producers were carefully structured in considerable detail, obvi- ously after detailed consultation with American steel interests, without expo- sure to the kind of input by purchasers that would have been provided if the Congressional procedures had been fol- lowed. These undertakings are bilateral. and establish obligations. Their bite persists notwithstanding the majority's effort to coat them bland vanilla. The majority tolerates executive detours around the limits staked by Congress in the ficld it has occupied. Its concept that a different route is available for executive arrangements discerned as not intended for judicial enforcement is, in my view, unsound. I. THE 1972 LETTERS The subject of this litigation is, spe- cifically, the arrangements made in 1972 between the Executive and foreign steel producers. In early 1970, various steel industry and labor union representatives, still concerned about the effect of drama- tically increased steel imports on domes- tic industry, urged the State Department to seck an extension of commitments that had been made for the years 1968 to 1971. Following a study by a special committee, the President, in December 1970, directed the Department of State to seek new pledges from the foreign rcpt tes l%a 2 > CONSU™ERS UNION OF U. S., INC. v. KISSINGER’ Cite ax 506 F.2d 136 (1974) producers. The State Department, ac- cording to the affidavit of a cognizant official, “met with various domestic in- terests,” and “received information and advice from diverse elements of the steel industry.” The affidavit goes on to say: ‘“The arrangements ‘were entirely the result of negotiations between the for- eign producer representatives and State Department officials who . . . spoke for and represented the policy judgments of the United States Government alone.” ? The 1972 arrangements were embodied in separate letters to the Secretary of State—from the Japan Iron and Steel Exporters’ Association, and from the steel producers of the European Econom- ic Community, including the United Kingdom. The letters were released by the White House on May 6, 1972, along with a Statement by the President and a Fact Sheet. President Nixon charac- terized this “welcome development” as the product of more than a year's effort by Deputy Under Secretary of State for Economic Affairs Nathaniel Samuels. The President’s Statement announced that under the 1972 arrangements the foreign stecl producers “pledge a three- year restraint” on steel exports to the United States, and further stated that this undertaking “represents a substan- tial improvement” over prior arrange- ments. §. Affidavit dated August 25, 1972, of Julius L. Katz, Deputy Assistant Seeretary of State for International Kesources and Food Policy, Bureau of Economie Affairs, paragraph 14. 2. Paragraph 5 of the May 2, 1972. letter of the assoriations of the steel producers of the U.K. and the EEC, provides: Consultations—The above-mentioned pro- ducer associations, through their authorized representatives, hold themselves ready to consult with representatives of the United States Government on any problem or ques- tion that may arise with respect to this vol- untary restraint undertaking. They expect that, similarly, the United States Govern- ment would be prepared to consult with their representatives on any problem or ques- tion that may arise with respect to this vol- antary restraint undertaking. They reserve ‘fhe arrangements set limitations on total amounts of stec! mill products to be shipped to the United States in 1972— 6.498 million short tons from Japan, and 8,013,754 short tons from the United Kingdori and European Community; and a limit of 2.5% vf growth increase in each of the folluwing two years. There were also .uwure specific and detailed ar- rangements, summarized as foliows in the White House Fact Sheet: “The provisions of the renewed under- takings a!so include a firmer under- Standing on product mix and geo- graphic distribution, with specific ton- nage limitations on each of the three categories of specialty steel—stainless, tool and other alloys.” Thus the limit on shipments of stain!ess steel mill products in 1972 was set at 16,873 metric tons for the steel producers of U.K. and EEC, and at 72,462 metric tons for the stecl producers of Japan. Each of the letters contained a para- graph on “Consultations’—which re- corded the understanding that the pro- ducer associutions “hold themselves ready to consult with representatives of the United States Government peas {and] expect that, similarly, the United States Government wou!d be prepared to consult with their representatives on any problem or question that may arise with respect to this voluntary restraint under- taking.” ® the right to request consultation in the event that they consider they have been placed in a disadvantazeous position with respect to other exporters of steel to the United States by developinents in the international steel market taking place subsequent to entering this undertaking, or if developments in the international steel market should take place whieh could substantially impair the ear- rying out of this undertaking. Similarly, they recognize that the United States Gov- ernment may request cynsultation if it ceon- siders that developments in the interna- tional steel market have taken place dur- ing the term of this undertaking which sub- stantially affect any of the provisions of thix arrangement. Tho above-mentioned producer axsociations reserve the right to request consultation with respect to the exclusion in particular 13a 506 FEDERAL REPORTER, 2d SERIES Each letter stated that its “voluntary restraint undertaking is based upon the following assumptions”—(a) that the disadvantages imposed by the arrange- ments should be equalized for importing producers, (b) that the United States Government will take no unilateral action to restrict the quantity of steei imports, or to raise tariffs, or to impose supple- mental duties on import of steel, and (c) that the undertaking is not in vio- lation of “any law of the United States or international rule.” It is undisputed that the President, in negotiating these steel import limita- tions, did not act pursuant to any author- ity delegated by Congress. The State Department affidavit tendered by the defendants sets forth that Executive ac- tion under existing statutory authority was pondered and rejected? Presiden- tial imposition of import: quotas is au- thorized under the “escape clause” pro- visions of Title III of the Trade Expan- sion Act of 1962, 19 U.S.C. § 1901, but only on a finding of injury caused in major part by “concessions” granted un- der trade agrecraents; and the difficul- ties of the domestic steel industry were ascribed to excess capacity, superior tech- nology, and a cheaper supply of labor available to foreign producers, rather than to concessions. Under § 232 of the Trade Expansion Act of 1962, 19 U.S.C. § 1862, the Presi- dent has authority to limit imports to protect the national security, but this authority was also eschewed, for the reason that national security was only one of several factors pointing toward import restrictions. Il. THESE ARRANGEMENTS ARE IN SUBSTANCE INTERNATION- AL AGREEMENTS NEGOTIATED BY THE PRESIDENT THAT EM- BODY OBLIGATIONS AND MUST situations from the export limitation quan- tity in paragraph 1 above of shipments of large-diumeter line pipe. The May 4, 1972 letter of the Japanese steel producers contains a virtually identical para- graph. COMPLY WITH THE PROCEDUR- AL SAFEGUARDS PRESCRIBED BY CONGRESS AS A CONDITION OF EXECUTIVE RESTRAINTS ON IMPORTS The contention, accepted by the major- ity, that the President's action is valid, notwithstanding its lack of statutory authorization, is based on two proposi- tions: (1) the action is within the President’s independent “foreign af- fairs” power; and (2) the import re- straint achieved as a result of the Presi- dent’s action is not pre-empted by the Congressional regulatory structure. Though there is no specific Constitu- tional clause granting the President power to conduct foreign affairs, that power has long been recognized. See United States v. Curtiss-Wright Export Corp., 299 U.S. 2304, 320, 57 S.Ct. 216, 81 L.Ed.2d 255 (1936). The President’s role in shaping foreign policy is rooted in and enhanced by his ability to com- municate with foreign governments in the conduct of diplomacy. See L. Henk- in, Foreign Affairs and the Constitution 47 (1972). Presumably, diplomacy or- dinarily comprehends negotiation with officials of foreign governments, rather than direct negotiations with foreign firms as here, but I hesitate to suggest that this constitutes an absolute limita- tion on the President's authority. What has been called the “foreign relations ‘apparatus,’ Henkin, supra, at 46, gath- ers a variety of commercial information in foreign countries, and this function inevitably involves contact with foreign firms, whether or not their governments are a conduit for communication. However, to say that executive com- munications with a foreign national are within the President’s foreign affairs role only opens the door to analysis. Here the purpose of the communication was to manage commerce between the 3. Affidavit of Mr. Katz, ¢ 7, JA 115a-117a. referring to 1605 consideration “by senior of- ficiala of the responsible agencies of the Gov- ernment.” l4a CONSUMERS UNION OF U. S., INC. v. KISSINGER Cite an 508 F.24 136 (1974) United States and the foreign producers involved—a matter over which Congress has plenary power conferred by Article I, § 8. While it would be too narrow a view of the executive function to say that foreign commercial relations are not a proper subject of executive com- munications with foreign entities, the executive cannot, through its communi- cations, manage foreign commerce in a manner lying outside a comprehensive, regulatory scheme Congress has enacted pursuant to its Article I, § 8 power. As Mr. Justice Jackson said in speaking of shared Congressional and executive pow- ers: When the President takes measures incompatible with the expressed or im- plied will of Congress, his power is at its lowest ebb, for then he can rely on- ly upon his own constitutional powers Minus any constitutional powers of Congress over the matter. Youngstown Sheet & Tube Company v. Sawyer, 343 U.S. 579, 637, 72 S.Ct. 863, 871, 96 L.Ed. 1153 (1952) (concurring opinion). The proper inquiry, then, is whether the executive action in obtaining the agreements for stecl import restrictions comports with the Congressional pro- gram for forcizn trade, or whether Con- gress, by occupution of the field of for- eign import restraints, has precluded the President's taking action on an in- dependent basis without complying with the standards and procedures provided by Congress as a condition of executive effectuation of import restraints. The majority says that the steel im- port restraints are in harmony with the Statutory program because they are not enforcezble in courts of law: they are Said to be mere precatory expressions which Congress never intended to cir- cumscribe by the procedural! reguire- ments applicable to mandatory import controls. This response presents an issue that focuses on the nature and effect of the undertakings before us. Turning first to effect, Presidents may engage in many activities that have a perceivable economic impact upon the volume of commodities imported. The effects vary in terms of their stability, their specific- ity, and their duration. At one pole would lie general Presidential exhorta- tions—say, to consumers to “Buy Amer- ican”--or general alarms, announcing that protective legislation will be sought if imports are not contained. Such ap- peals are valid even though they may have the effect of inhibiting some mar- ket behavior, and no one would view them as‘prohibited by even the strongest Congressional “free trade” legislation. At the other extreme is a Presidential proclamation that foreign-trade com- mnodities will not be allowed to enter, which plainly cannot be reconciled with the existing statutory structure, or le- gitimated by refecence to some aura of “inherent” Presidential authority. In between is a continuum of restrictions. In my view, the comprehensive statuto- ry program constrains some but not all of the activities in this continuum. Here, the undertakings have an econom- ie effect that puruilels that of import quetas proclaimed by thé President. Turning to its nature, the Presiden- tial action here gous far beyond a speech or anunouncement-—even one preceded by “feelers” to foreign governments to us- certain how much they will tolerate. Far from being mere expressions of de- Sire and intent, there zre sclermn nego- tiated bilateral understandings. The arrangements are not unilateral announcements but the culmination of bilateral discussions that were sot only participated in, but initiated by State Department officials. Although the fizal letters that embody the specific Lmitations are astutely couched in a litany of a “volustary restraint under- taking” on the part of the foreign steel producers, the circumstances ate in- Stinct with bilateral undertaking. Obviously, fureign firms that have vigorously marketed their products in the United States do not voluntarily withhold procect.on without sume recip- real aspect indicating that forbearance 15a 506 FEDERAL REPORTER, 2d SERIES is to their advantage. Here, the under- takings of the foreign producers rest on Government assurances that disadvan- tages would be equalized among pro- ducers; that the United States Govern- ment—or at least the not uninfluen- tial Executive Branch—would not take or start other measures to limit steel imperts or increase duties; and that the transaction would not violate any law of the United States.‘ The specificity of the limitations im- posed by the undertakings® also indi- cates that they were the result of bi- lateral bargaining and agreement. Sicnificantly, by the terms of the ar- rangements, the parties contemplate cont:suing consultations. The foreign stecl producers “hold themselves ready to consult” on any question that may arise on the interpretation of their “undertaking.” Does one accompany 4 unilateral declaration of intent with an offer to “consult” about what he has declared? When the foreign producers go on to say that their undertakings are based on their expectation that the United States Government will consult with them on questions that arise, and the White House releases these letters, along with a detailed Fact Sheet, as a “welcome development” that is the pr od- uct of Executive negotiation can it be meaningfully denied that there is a re- ciprocal undertaking by the United States Government to engage in consulta- tions with the producers? The inference of bilateral undertaking is strengthened when the arrangement is placed in the context of historical practice. Export forbearance by foreign producers has historically been obtained by Giplomatic exchange of notes between the United States and foreign govern- ments. Tne diplomatic notes themselves have referred to an “agreement” or “gen- themen’s agreement” to limit shipments.® 4. Leters of the European Economic Com- munty and United Kingdom associations of s’erl producers and of the Japan Iron end Stec| Fxporters’ Association, § 6, JA 1318 aod 1370. International agreements are not lim- ited to those embodied in formal docu- ments, authenticated with ceremony, but include, as here, the specifying of an ar- rangement, together with mutual assur- ances and understandings as to how all parties will behave in response. To cast the steel restraints as unilateral under- takings rather than as agreements is to exalt form over substance. The majority asserts that, unlike agreements negotiated pursuant to stat- ute, which may be enforced by executive regulations and ultimately by judicial sanctions, the steel arrangements are unenforceable. But it is by no means clear that the Executive is without sanc- tions if the producers fail to abide by the arrangements. The very specificity of the limitations described by the letters makes violations easy to detect and the arrangements easy to enforce. That the threat of sanctions may carry consid- erable weight is indicated by the cooper- ation of the Japanese producers in mak- ing compensatory adjustments when they exceeded the quota for 1969 established by the original agreement. The remedy wae a reduction of the 1970 quota by the amount of the overshipment. See Fif- teenth Annual Report of the President of the United States on the Trade Agree- ments Program 28 (1970), Similarly, when the Japanese producers exceeded their aggregate quotas for 1972. “consul- tations” resulted in an agreement by the Japanese producers to charge the 1972 overshipments against 1973 quotas. See Seventeenth Annual Report of the Presi- dent of the United States on the Trade Agreements Program 44 (1972). If, as the Government argues, the President has inherent power to nego tiate these and similar restraints, I fail to see why the courts would or should re- frain from enforcement if sought. Prod- ucts shipped to the United States in ex- cess of the restraints might be denied 5. Sce pp. 146-1458 supra. 6. See the 1935 limitation on imports of Japanese cotton gourls and the 1936 limitation on imports of Japanese cotton rugs, both de- scribed in the Appendix, infra. 16a CONSUMERS UNION OF U. S., INC. v. KISSINGER Cite as 506 F.2d 130 (1974) entry, or domestic firms might be en- joined from handling them. The common law of international agreements respects voluntary under- takings even in the absence of the “con- sideration” that is required under his- toric Anglo-American common law for domestic agreements to be enforceable in most state courts. If there must be a diplomatic peppercorn, there is con- sideration in the fact that the under- takings by the producers were plainly not meant to be revocable at will, and were based on a United States Govern- ment undertaking for consultation in the event problems arose and for avoid- ance of unilateral action against imports and tariffs. As I earlier indicated, this undertaking was binding on the Govern- ment which released and thus acknowl- edged this aspect of the letter arrange- ments. Further, principles of promis- sory estoppel may bind the foreign par- ties, even in the absence of a finding of initial consideration, once the Executive has relied on their representation that they intend to abandon any right they may have had to exceed the stated limi- tations on imports—as it has relied here by failing to take other Steps to limit imports. See Dickerson v. Colgrove, 100 U.S. 578, 580, 25 L.Ed. 618 (1879); Casey v. Galli, 94 U.S. 673, 680, 24 L. Ed. 168 (1876); Goodman v. Dicker, 83 U.S.App.D.C. 353, 354, 169 F.2d 684, 685 (1948). Even if judicial enforcement was not contemplated by the parties, the ar- rangements still embody a restraint. Trade agreements between foreign na- tions, and indeed many international agreements, may be “enforceable” only in the sense that they depend for en- forcement on “good faith” performance by the parties. That does not make them any the less solemn agreements, that are both intended to affect the conduct of the parties and likely to have that result. 7. This assumes the court would pass on the — A court might well dismiss an ac- t on another ground, like lack of clean bands. Moreover, the Executive may call on non-judicial resources if foreign pro- ducers violate the arrangements. Ac- tions that would ordinarily be resisted as inconsistent with amicable relations, possibly a call to reduce assistance pro- grams to the country in question, could hardly be assailed in the face of foreign producer bad faith. A deliberate breach may well have an outco.ne intermediate between direct ju- dicial enforcement and complete non-in- volvement on the part of the judiciary. Suppose the President directed customs officials to deny entry to United States ports of commodities violating the un- dertaking, and suppose such actions were sought to be enjoined. It seems to me entirely likely that the parties might have contemplated both this executive action, and the judicial consequence—on the assumption that the negotiations were valid—that the courts had no basis for holding the executive action invalid.? What is the significance of the reiter- ation that these undertakings were “‘vol- untary” on the part of the foreign pro- ducers? It is commonplace for a busi- nessman to decide “voluntarily” that he will enter into an agreement, although the agreement, once entered into, has binding effect. The mandate may issue from a court of law or arbitration. But the obligations enforced in a court of commercial good faith and good will are as rigorous and insistent as a black- robed judgment. Congress has express- ly authorized negotiated limitations in the orderly marketing ayreement provi- sion, § 352 of the Trade Expansion Act of 1962. And the national security pro- vision authorizes restrictions imposed by Presidential proclamation, which em- braces the authority to arranze re- straints to which foreign producers con- sent? In my view, the steel quotas before us present an import restraint having a composite characteristic, in terms of ef- 8. See p. 155 infra. 9. See pp. 155-156 infra. 17a 506 FEDERAL REPORTER, 2d SERIES fect and nature, as to be subject to the procedures and requirements set forth in the Trade Expansion Act of 1962. This is the critical question in the case—where to draw the line. There is a continuum of restraints, as noted above. In my view, the critical distine- tion is between executive actions that rest wholly in the domain of appeals and exhortations, and executive actions that culminate in obligations. A good faith agreement with the kind of spec- ificity present here puts an obligation on the foreign producer, in any realistic assessment. Accordingly, 1 think the executive negotiation and acceptance of these undertakings are activity in a field that has been preempted by Con- gress, and can only be engaged in by fol- lowing the procedures set forth in the Congressional enactments. There is only local color, no legal sig- nificance, in the fact that in this case the Chairmen of key House and Senate Committees concerned with regulation of international trade voiced their ap- 10. Defendants cite a statement in the con- ference report accompanying the first national security provision that “it is the wnderstand- ing of all the conferees, both House and Sen- ate, that it in not intemled to, and does not, diminish or impair any authority the Presi- dent may hare uwler any other law.” ILR. Report No. 745, 4th Cong., Ist Sew. 6 (1955) (emphasis ackdesd). The Conference Keport. however, continues: for example, it was emphasized that if the "President sees fit to stockpile eritieal ma- terials under any other law that action may be taken wholly sxicde from the authority contained in this amendment. The circumapection of Congress, in avoiding any possible contention that it intended to limit other authority of the President, like the stockpiling of eritien| materials, cannot fuirly be stretched into an acquiescence in an inherent general authority to limit imports. The same approach undercuts defendants” reliance on a statement in the House Report accompanying the Trade Agreements Exten- sion Act of 1953S, in whieh the national se¢- curity provision was reenacted with modifiea- glen: *. « « the President may alxo take any action available to him under any of his other powers.” I1.K.Rep.No.1761, Soth Cong.. 2d Sexs. 14 (195%). The entire sentence in the House Report reads: proval on the occasion of the White House announcement of the undertak- ings. The Government does not con- tend, and I do not see how it could right- fully contend, that such participation by particular Congressmen can invest the President with executive authority not otherwise possessed, or constitute a le- gally decisive def inition of the demarca- tion between the zone that belongs to Congress as a whole and that which be- long solely to the President. . 1 am unimpressed with defendants’ citation of statements from the legisla- tive history of various trade provi- sions as indicating a legislative intent that agreements could be reached with- out prescribed procedures. If the entire legislative history is ap- praised, weight must be given to the two secasions—in the passage of the 1962 law, and again in 1971—when Congress has declined to give the President au- thorization to impose import restraints without observing procedural require- ments.' However, the legislative his- In emergencies and for such time ns necen- anry. the President may siso take any action available to him under any of his other pow- ers. (Emphasis addled.) Jiefendants have never attempted to charac terize the executive netion taken here a te sponse to an emergency. The foregoing lan- guage seems irrelevant to the problems before us. 11. In 1962 the Senate approved a bill with a broad authority in the President to limit im- ports, in this provision (denominated as & 253) : Notwithstanding any other provision of law, the President may, when he finds it in the national interest, proclaim with respect to any article imported into the United States— . . . . +. (3) the imposition of such other import restrictions as be finia necessary. ILR. 11970, Sith Cong. 24 Sexe, (12). This provision did not survive im the Trade Expansion Act of 1962 because it wan deleted in Conference. Ser IL. .Rep.No.2as, sTth Cong.. 2d Seas. 1% (172). The other proposal to enlarge Prexidentin! authority to restrict imports emerged during consideration of the Revenue Act of 1971. New quota authority was proposed by tLe ATI LD EAD 1 he ODEN ee 18a CONSUMERS UNION OF U. S., INC. v. KISSINGER Cite ax 506 F.2d 136 (1974) tory, as conventionally ascertained, does not give an independent view of Con- gressional intent, and this must be dis- cerned from basic analysis of the stat- utes passed by Congress. The deep- seated and comprehensive Congressional insistence on. procedural safeguards can best be appreciated in the light of per- tinent history. Ill. COMPREHENSIVE ENACT- MENTS OCCUPYING THE FIELD OF PRESIDENTIAL AC- TIONS RESULTING IN .OBLIGA- TORY IMPORTS RESTRAINTS The ascertainment of pertinent legis- lative intent depends not only on express wording of the Trade Expznsion Act of 1962, and specific notations in its im- mediate legislative history, but on its character as a culmination of compre- hensive enactments on the subject of ex- ecutive actions resulting in obligatory foreign trade restraints, including agreements by the executive regarding imports. The Congressional pattern makes clear that such executive action is tolerated only if it is accompanied and safeguarded by procedural protec- tions that ensure a right of comment by those whose interests may be affected. This not only cvoids the vice of com- plete secrecy within the Government, it also avoids the vice of cozy confidenti- ality, in which the public is informed only when the matter is a fait accompli. 1. Gencral [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385608_0730%3A1. Public record. Not legal advice.