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US Tells SCOTUS No Need to Stay Case on Section 232 Duties Pending 'Chevron' Review

A case challenging President Donald Trump's expansion of Section 232 steel and aluminum duties onto derivative products shouldn't be stayed pending the U.S. Supreme Court's review of the Chevron deference doctrine, the government told the high court in a Nov. 27 brief. Replying to exporter Oman Fasteners' petition for a writ of certiorari, DOJ said the case involving the review of Chevron, Loper Bright Enterprises v. Raimondo, will not affect the present dispute because Loper Bright doesn't involve "challenges to actions taken by the President" (Oman Fasteners v. U.S., Sup. Ct. # 23-432).

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The U.S. also addressed Oman Fasteners' similar claim that the U.S. Court of Appeals for the Federal Circuit, in sustaining Trump's tariff action, "improperly granted the President a form of deference" when it said it could find the action illegal only if there were a "clear misconstruction of the governing statute" under its ruling in Maple Leaf Fish Co. v. U.S. The government said this claim "misreads the court of appeals' opinion." Given that the president is not an agency under the Administrative Procedure Act, "his actions are not subject to judicial review under that statute," the brief said.

Instead, the president's actions are subject only to a narrow type of review outside the APA, and "even that review 'is not available when the statute in question commits the decision to the discretion of the President,'" the government argued. The standard in Maple Leaf applies only when the president makes "highly discretionary" decisions -- a decision that isn't at issue here, the brief said.

Oman Fasteners' appeal follows the high court's recent decision not to review the legality of the president's expansion of the duties beyond procedural time limits from another company (see 2310300020). In that case, which was consolidated with Oman Fasteners' at the appellate court, the Federal Circuit ruled that the president can violate these time constraints so long as the duties adhere to the original plan of action as contemplated by the Commerce Department in its report to the president undergirding the duties (see 2302070030).

In petitioning the court to review the tariffs for the sixth time, the exporter said that the high court should read Section 232 narrowly to skirt any violations of the nondelegation doctrine, though the U.S. said the Supreme Court rejected this claim in the 1976 decision Federal Energy Administration v. Algonquin. In that case, the president used Section 232 to set up license fees for petroleum imports. The court sustained the fees and rejected the idea that a court must interpret the statute narrowly to avoid an "unconstitutional delegation of legislative power."

Oman Fasteners said the Federal Circuit's interpretation of Section 232 created a nondelegation problem that didn't exist at the time Algonquin was decided. The U.S. noted, however, that when Algonquin was decided, Section 232 "did not impose any time limits at all." In Algonquin, the court said there was no delegation issue due to all the constraints set by the statute. "If those constraints sufficed to defeat the nondelegation challenge in Algonquin, they suffice to defeat any nondelegation challenge here, regardless of how a court interprets the statute's time limits or provisions relating to derivatives," the brief said.

The brief also included arguments the U.S. made in defending the other five petitions, among them the claim the statute allows the president to perform a course of acts and not just a single act in adjusting imports. "It would have been especially odd in the present statutory context for Congress to foreclose the President from responding to changed circumstances or new information," the brief said.