Court Denies Challenge to Section 232
By Dan Markham
on Apr 2, 2019
Section 232 survived its first test of constitutionality. It likely won’t be the last. Last week, the U.S. Court of International Trade ruled in favor of the administration in a lawsuit brought by the steel import group American Institute of International Steel.
The court leaned heavily on precedent in its determination, noting the key question was answered in the Trade Expansion Act of 1962, and none of the plaintiffs’ arguments were able to overcome that.
The three judges on the panel did express some concerns about the law, noting “the broad guideposts of …Section 232 bestow flexibility on the president and seem to invite the president to regulate commerce by way of means reserved for Congress, leaving very few tools beyond his reach,” wrote Judge Clare R. Kelly.
The AIIS announced its intention to appeal the decision immediately, optimistic that a higher court could agree with one of the judges who, despite concurring with the opinion, questioned the constitutionality of the original statute. “If the delegation permitted by Section 232, as now revealed, does not constitute excessive delegation in violation of the Constitution, what would?” Judge Gary S. Katzman wrote in a separate opinion.