On December 2, 2019, President Trump sent a tweet which stated ” Brazil and Argentina have been presiding over a massive devaluation of their currencies. which is not good for our farmers. Therefore, effective immediately, I will restore the Tariffs on all Steel & Aluminum that is shipped into the U.S. from those countries. The Federal … Reserve should likewise act so that countries, of which there are many, no longer take advantage of our strong dollar by further devaluing their currencies. This makes it very hard for our manufactures & farmers to fairly export their goods. Lower Rates & Loosen – Fed!” However, the President’s ability to modify or re-impose tariffs under section 232 may be limited by a recent decision by a three-judge panel of the US Court of International Trade.
On November 15, 2019, in Transpacific Steel LLC v. United States (Slip Op. 19-142), a three judge panel of the US Court of International Trade (CIT), agreed with Transpacific Steel LLC’s (“Plaintiff”) arguments that the President failed to follow the procedure set forth in the statute and, further, that singling out importers from Turkey violated the equal protection guarantees under the US Constitution and supported its claim for a refund and defeat Defendants’ motion to dismiss. The Plaintiff sought a refund of the difference between the 50 percent tariff imposed on certain steel products (“steel articles”) from Turkey, pursuant to Presidential Proclamation 9772, issued on August 10, 2018, and the 25 percent tariff imposed on steel articles from certain other countries.
The Government argued that the President retains the power to modify any action taken under section 232, without conducting a new investigation or following the procedures set forth in the statute, and seems to have envisioned the Secretary of Commerce’s January 11 Report as empowering him to take ongoing action. The CIT said that “The President’s expansive view of his power under section 232 is mistaken, and at odds with the language of the statute, its legislative history, and its purpose.” The CIT said that the Supreme Court has made clear that section 232 avoids running afoul of the non-delegation doctrine because it establishes “clear preconditions to Presidential action.” The 1988 amendments now impose a 90-day limit for the President to act against imports that threaten the national security. The CIT also found that the Government’s rationale for singling out Turkey did not explain what differentiates Turkey from other similarly situated countries—for the President to target alone. Judge Katzmann concurred with the other two judges but said that although the question before the court was whether the statute was followed, a more important question – perhaps for a later stage in the case- is whether the statute is constitutional.
