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US importers take Section 232 metal tariffs fight to Supreme Court

Houston — The American Institute for International Steel (AIIS) has taken its legal challenge to end the Section 232 tariffs on steel and aluminum to the highest court in the US, with the steel trade organization filing a petition Monday with the Supreme Court, according to court documents.

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In a March ruling, a US Court of International Trade panel expressed some concerns about the broad authority granted to US President Donald Trump under Section 232 but said it was bound by a 1970s-era Supreme Court decision to uphold the statute. The AIIS filed a lawsuit challenging the constitutionality of the Section 232 tariffs with the CIT in June 2018.

Relying on a 1976 Section 232 case involving oil imports, known as Federal Energy Administration v. Algonquin, the CIT ruled "the president's determination of whether to [impose Section 232 tariffs] is not qualified by any language or standard, establishing that it is left to his discretion. Accordingly, the president's determination as to the form of remedial action is a matter 'in the judgment of the president.'"

While he did not issue a dissent, CIT Judge Gary Katzman filed an opinion dubitante, suggesting that the laws governing Section 232 may need to be revisited, stating: "If the delegation permitted by Section 232, as now revealed, does not constitute excessive delegation in violation of the constitution, what would?"

While the typical course for appeal would take the case to the Court of Appeals for the Federal Circuit, the AIIS' petition filed with the Supreme Court Monday looks to bypass this step, as the second panel of judges in the circuit court would also have to rely on the Algonquin precedent, according to the filing.

"This petition in advance of judgment seeks to bypass that unnecessary and ultimately inconclusive step," the AIIS said in its petition. Nevertheless, the AIIS did file an appeal with the lower court in March.

In its petition to the Supreme Court, the AIIS argued that the Algonquin case is distinguishable, or should be limited or overruled, and that the Supreme Court should rule that Section 232 "is an unconstitutional delegation of legislative power to the president."

The AIIS and White House did not immediately respond to a request for comment Tuesday.

Trump initiated Section 232 investigations into steel and aluminum imports in 2017, which ultimately resulted in the US applying a 25% tariff on steel and 10% tariff on aluminum in March 2018.

-- Justine Coyne, justine.coyne@spglobal.com

-- Edited by Tom Balcerek, newsdesk@spglobal.com

S&P Global Platts Insight | April 2019 | Shape Shifting: US power markets

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