The U.S. Court of Appeals for the Federal Circuit's July 13 decision in favor of President Donald Trump's Section 232 tariff increase for Turkish steel past the 105-day deadline set by statute may be a serious setback for Turkish steel exporters (see 2107130059), but what it means for the remaining litigation challenging the president's authority under Section 232, Section 301 or any other statute granting the executive tariff powers is less clear, lawyers said in the days following the decision.
Deference Argument in Solar Panel Tariff Exemption Reversal Eliminates Check on Executive, SEIA Says
The Department of Justice's argument that the president should be granted deference to determine whether the procedural boxes have been ticked when eliminating a tariff exemption would eliminate a key check on executive power, counsel for the Solar Energy Industries Association said during July 13 oral argument. The proceedings before Court of International Trade Judge Gary Katzmann come amid SEIA's challenge to President Donald Trump's revocation of an exemption to Section 201 safeguard tariffs on bifacial solar panels (Solar Energy Industries Association et al. v. United States, CIT #20-03941).
The president may impose greater Section 232 national security tariffs beyond the 105-day timeframe for action set out in the statute, the U.S. Court of Appeals for the Federal Circuit said in a July 13 ruling. Overturning a lower court ruling, the Federal Circuit found that the underlying law's deadline for the president to take "action" can refer to a "plan of action" carried out over a period of time following the 105-day deadline. That authority is not unlimited, though, in that modifications must be related to the underlying reasoning for the tariffs and those reasons can't be "stale," CAFC said.
President Donald Trump did not violate procedural timelines when he raised tariffs on Turkish steel from 25 to 50% in August 2018, beyond the 90-day deadline and 15-day implementation period for initial Section 232 tariffs, the U.S. Court of Appeals for the Federal Circuit said in a July 13 opinion. Reversing a Court of International Trade decision, the Federal Circuit threw a wrench in a key argument against certain Section 232 tariffs that action beyond the statutory timelines should not be allowed.
The Department of Justice seeks a stay from the Court of International Trade of the liquidation of PrimeSource's entries pending DOJ's appeal of CIT's decision that struck down President Donald Trump's expansion of Section 232 tariffs onto steel and aluminum “derivatives,” it said in a June 9 motion for partial stay of judgment.
The Solar Energy Industries Association continued to push back on the government's arguments that President Donald Trump properly considered the domestic industry's views when he removed an exemption to Section 201 tariffs on bifacial solar panels. The revocation of the tariff exemption should be reversed, plaintiffs challenging the president's actions said in a June 25 brief. Responding to a filing from the Department of Justice defending the decision to pull the tariff exemption, plaintiffs, led by the SEIA, further alleged procedural shortcomings in the president's actions (Solar Energy Industries Association et al. v. United States, CIT #20-03941).
The Court of International Trade in a June 22 decision dismissed all but one of importer Maple Leaf Marketing's claims against Section 232 steel tariffs levied against goods shipped to Canada for further processing then reimported to the U.S. Finding that the president has broad authority to determine the "nature of the action necessary to adjust imports that threaten the national security," a three-judge panel tossed Maple Leaf's challenges to the imposition of the tariffs on Canada, which Maple Leaf had argued was untimely, as well as to the assessment of Section 232 duties on steel articles qualifying for repair and alteration treatment under Chapter 98, among other things.
A Court of International Trade decision eliminating the extension of Section 232 duties to steel and aluminum "derivatives" has formally been appealed by the U.S. to the U.S. Court of Appeals for the Federal Circuit, according to a June 17 docketing notice. The CIT ruling, decided by a three-judge panel at the trade court, found that President Donald Trump violated statutory time limits when expanding the tariffs to the derivative products. Importer PrimeSource Building Products successfully argued that the tariff expansion was announced well after the 105-day deadline for tariff action following the initial Commerce Department report that led to the initial imposition of the Section 232 duties in 2018 (see 2104050049) (PrimeSource Building Products, Inc. v. United States, Federal Circuit, #21-2066).
President Donald Trump properly eliminated a tariff exemption for bifacial solar panels since a majority of the representatives of the domestic industry, by volume, filed a petition to remove the exemption, the Department of Justice said in a June 11 brief in the Court of International Trade. Responding to arguments from the Solar Energy Industries Association, the Justice Department contested the trade group's assertion that the withdrawal of the exemption was merely based on a "head count" (Solar Energy Industries Association et al. v. United States, CIT #20-03941).
It could take two to three years to resolve the massive Section 301 litigation now before the Court of International Trade, especially since it’s “highly likely” the case will be appealed by whichever side loses, David Cohen, a trade expert with Sandler Travis, said on his law firm's webinar June 15. Roughly 3,800 importers are suing the government to declare the lists 3 and 4A tariffs on Chinese goods unlawful and get the money refunded.