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Supreme Court Declines to Intervene in Legal Challenge to Trump Tariffs

The United States Supreme Court has declined to intervene in a challenge to President Trump’s authority to enact steel and aluminum tariffs for stated reasons of national security. The president has claimed authority to implement tariffs pursuant to section 232 of the Trade Expansion Act of 1962, as amended. A challenge to the president’s section 232 authority was initially brought before the United States Court of International Trade (CIT) by the American Institute for International Steel (AIIS) and others (collectively, “Petitioners”). The CIT upheld the constitutionality of the tariffs, and Petitioners had asked the Supreme Court to take the case directly, thereby bypassing the interim step of having the case heard before the United States Court of Appeals for the Federal Circuit. On June 24, 2019, the Supreme Court announced that it would not bypass the Federal Circuit.

The crux of Petitioners’ claim is that Congress unconstitutionally delegated authority to the president under section 232 because that delegation lacked an “intelligible principle.” According to the Petitioners, because the statute is allegedly unconstitutional, the president could not use the statute as the basis for the tariffs.

The Supreme Court’s refusal to intervene does not mean that the challenge is over. Petitioners have stated their intention to continue the dispute via the normal appeals process before the Federal Circuit, with the subsequent decision appealed again to the Supreme Court if necessary. However, the Court’s refusal to take the case now is not a promising signal for Petitioners in what was always going to be a difficult argument to sustain. There has not been a successful challenge to legislation under the “nondelegation doctrine” for nearly a century. Moreover, the case involves a subject area (national security) where courts have typically been highly deferential to the executive, and the Supreme Court previously ruled that this very statute was a permissible delegation of authority by Congress.

©2020 Greenberg Traurig, LLP. All rights reserved. National Law Review, Volume IX, Number 177


About this Author

Thomas G. Allen Litigation Attorney Greenberg Traurig Law Firm

Thomas G. Allen is a litigator, focusing his practice on international arbitration and cross-border disputes. He represents clients in a variety of industries with an emphasis on energy, manufacturing, construction, and aviation. Thomas has wide-ranging experience in high-value international and U.S. arbitrations. He also litigates the enforceability of arbitration clauses and arbitration awards in U.S. Courts. Thomas is a frequent lecturer on international arbitration topics and is a former adjunct professor in the international arbitration discipline. Before concentrating on...

Andrew Van Duzer Energy Litigation Attorney Greenberg Traurig Law Firm

Andrew Van Duzer focuses his practice on arbitration and litigation matters related to energy. He represents clients in arbitration proceedings and has assisted with regulatory proceedings in front of administrative boards at the Nuclear Regulatory Commission. He advises on laws, regulations, and export controls impacting U.S. civil nuclear cooperation with foreign nations. Andrew also has experience representing foreign governments on bilateral treaty negotiations concerning nuclear commerce and nuclear non-proliferation commitments with the United States.

Daniel E. Parga International Arbitration Lawyer Greenberg Traurig Law Firm

Daniel E. Parga is an associate in the International Trade and the International Arbitration & Litigation groups. Daniel focuses his practice on many aspects of international trade and investment, including the representation of companies and foreign governments in trade remedy proceedings before the U.S. Department of Commerce, the U.S. International Trade Commission, and the U.S. Court of International Trade. His experience also includes representing governments in the negotiation of free trade agreements, as well as acting on behalf of companies, investors,...