CAFC Dismisses Broad Challenge to Section 232 Tariffs
The Court of Appeals for the Federal Circuit in a June 9 opinion dismissed a broad challenge to President Donald Trump's Section 232 steel and aluminum tariffs. The plaintiffs, led by USP Holdings, argued that the Commerce Secretary's report preceding presidential action violated the law since it failed to outline an imminent threat to the domestic industry as required by the statute and was unsupported by substantial evidence. A three-judge panel at the court ruled against these arguments, holding that there is no imminence requirement in the statute and that the threat determination is not reviewable under the "arbitrary and capricious" standard since the Secretary's action "is only reviewable for compliance with the statute." Judge Timothy Dyk, author of the opinion, also ruled that the statute grants the president the discretion to set the nature and duration of the tariffs.
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Judge Raymond Chen issued a partial dissent from the opinion on whether the threat determination is judicially reviewable. The majority cited a 2003 Federal Circuit opinion to find that the threat determination is a final agency action, and thus reviewable, since it predicates presidential action. While Chen agreed that applying this standard would make the determination reviewable, the judge said that the 2003 decision was wrongly decided since it doesn't square with two Supreme Court decisions which say that a final agency action is one that carries direct consequences for a party.