Federal Circuit Upholds Lists 3 and 4A Section 301 Tariffs on China
The U.S. Court of Appeals for the Federal Circuit on Sept. 25 upheld the Lists 3 and 4A Section 301 tariffs. CAFC Judges Todd Hughes and Alan Lourie, along with Judge Rodney Gilstrap of the Eastern District of Texas, who was sitting by designation, said the tariffs were a valid exercise of the government's authority under Section 307(a)(1)(C), which lets the U.S. Trade Representative "modify or terminate any action" taken under Section 301, where such action is "no longer appropriate."
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The court said the word "modify" includes the power to greatly increase Section 301 tariffs where the existing measures are insufficient to achieve their stated purpose, "necessitating increased action that is more appropriate." In addition, the court said this authority doesn't violate the Constitution's non-delegation doctrine, nor does it violate the major questions doctrine, which guards against major regulatory action not explicitly provided for by Congress.
Lastly, the court said the Lists 3 and 4A tariffs are actions of the USTR and not the president, subjecting the tariffs to the Administrative Procedure Act. The court sustained the tariffs under the APA after finding that the USTR properly responded to comments received on the Lists 3 and 4A duties on remand at the Court of International Trade.