FORBES
By: Stuart Anderson
Contributor
10/9/18

What if the tariffs the Trump administration has imposed on imports of steel are unconstitutional? That question could be answered in an important lawsuit that asks a court to declare the tariffs unlawful. The domestic and international impact of the lawsuit could be enormous.

On June 27, 2018, the American Institute for International Steel (and Sim-Tex and Kurt Orban Partners) filed a lawsuit against U.S. Customs and Border Protection in the U.S. Court of International Trade “enjoining defendants from enforcing the 25% tariff increase for imports of steel products and other trade barriers imposed” by the Trump administration in a March 8, 2018, presidential proclamation. To better understand the lawsuit, I interviewed one of the key attorneys in the case, Donald B. Cameron, Jr., a partner in the international trade practice of Morris, Manning & Martin.

Stuart Anderson: What part of U.S. trade law did Donald Trump use to impose the tariffs on steel imports?

Donald Cameron: Section 232 of the Trade Expansion Act of 1962. This is a Cold War era statute that authorizes the president to “adjust” imports if he determines, after an investigation and recommendation by the Commerce Department, that such imports “threaten to impair the national security.” Prior to the current administration, this act had been used very rarely and only in connection with imports of petroleum products and metal-cutting and metal-forming machine tools.

Anderson: What is the objective of the lawsuit?

Cameron: To have section 232 declared unconstitutional and to obtain a permanent injunction against collection of the duties imposed under section 232 by the president.

Anderson: What is your primary legal argument?

Cameron: Our argument is that the U.S. Constitution assigns the power to set tariffs and to regulate foreign commerce to Congress. The U.S. Supreme Court has held that Congress cannot delegate its law-making power to the president. So any delegations of authority to impose or set tariffs must contain some “intelligible principle” that sets some limits on the president’s discretion. Section 232 has no such limits, as the president has proven in the case of the current tariffs on steel.

Anderson: Are you making any other legal arguments?

Cameron: The non-delegation issue is our sole legal claim. It has been many years since the Supreme Court has struck down a statute passed by Congress under the non-delegation doctrine, which has led some observers to assume that the doctrine is no longer viable. However, the Court has agreed to hear a non-delegation claim this term in a case called Gundy, so we believe that the non-delegation doctrine is alive and well.

Anderson: Many Americans may not be familiar with the U.S. Court of International Trade. Can you explain its role?

Cameron: The Court of International Trade is an Article III court that is at the same level as federal district courts, but its jurisdiction is defined by subject matter rather than geography. The Court has exclusive jurisdiction over all cases involving the regulation of international trade, including customs classification and valuation and actions taken under the various trade remedy statutes.

Anderson: Will statements made by the president where he indicated the steel tariffs had little or nothing to do with national security be part of the lawsuit?

Cameron: Not directly, but those statements further illustrate the lack of any guidelines or boundaries in the statute. The definition of “national security” contained in section 232 and relied on by the president in imposing these duties is so broad that it encompasses anything having to do with the U.S. economy. The president’s statements make clear that he views section 232 as granting him unfettered power to impose tariffs or other restrictions on imports of steel (or any other products for that matter) in any amount, for whatever duration, and for whatever reasons he sees fit. That is the essence of an unconstitutional delegation of legislative authority.

Anderson: What is the timing and the next potential step?

Cameron: We filed our brief responding to the government’s defense of the statute on October 5. Thereafter, the government will have 21 days to submit its final reply. Once that has happened, the case will be ready for oral argument before the three-judge panel hearing the case. The date of that argument will be set by the court, but we expect it to be before the end of the year. (Plaintiff filings can be found here.)

Anderson: What do you think is at stake in this lawsuit?

Cameron: As detailed in our legal papers, these steel tariffs have had a devastating effect on our clients, who are importers and distributors of steel products. They also harm workers at these firms, the longshoremen, stevedores, etc. who work at the ports, the truckers and rail workers who transport these goods and so on.

In addition to the duties on steel that are the subject of our case, the president has already imposed similar duties under Section 232 on imports of aluminum. And he has threatened to do the same thing with respect to imports of autos – even though the major U.S. automakers oppose such duties.

What is at stake in this case is whether our constitutional system, with its separation of powers and checks and balances, permits Congress to give the president this kind of unfettered authority to impose tariffs and other restrictions on imports that can affect essentially the entire U.S. economy to the detriment of American businesses and workers.

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