Trump’s Steel And Aluminum Tariffs Under Court Attack

Section 232 of the 1962 Trade Expansion Act, the authority relied upon by president Trump in his order imposing a 25% tariff on imported steel, and a 10% tariff on imported aluminum, is under attack by the American Institute for International Steel, and metal importers Kurt Oban Partners and Sim-Tex in the U S Court of International Trade. The law is a relic of the Korean War and President Truman’s seizure of American steel mills.

Petitioners argue that Section 232 is an unconstitutional delegation to the executive branch of Article I Section 1 Congressional power to “lay and collect taxes, imposts and excises.” In December 19 oral arguments before the three judge panel hearing the constitutional challenge, pointing to Supreme Court decisions allowing delegation to the President to regulate imports for national security purposes, Judge Claire Kelly cited the requirement that in delegating tariff authority Congress must provide an “intelligible principle” to guide execution of the delegated power.

“My concern,” Judge Kelly asked, “is that at some point, is there any limit on what kind of power you can give away? … Without judicial review, it seems Congress has given away a whole lot, and maybe you shouldn’t be allowed to do that.”

The court’s decision may ultimately turn on the validity of a 1980 amendment removing judicial authority to review Presidential actions under the statutory provision.