On August 23, 2021, the plaintiff group led by Transpacific Steel LLC filed a petition with the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) requesting a rehearing by all the Federal Circuit judges of the July 2021 three-judge panel decision reversing the ruling of the U.S. Court of International Trade (CIT) that former President Donald J. Trump violated the provisions of Section 232 of the Trade Expansion Act of 1962 (Section 232) by increasing tariffs on steel imports from Turkey beyond those previously implemented under an earlier presidential proclamation. In the July 2021 ruling, the Federal Circuit panel ruled 2-1 that former President Trump did not depart from the finding of the Secretary of Commerce of a national security threat and did not violate the process and timing standards applicable to the Secretary’s finding of a national security threat. See July 13, 2021 Update.
The plaintiff group seeks a rehearing before the full membership of the court “because the Majority [in the panel hearing] disregarded important statutory provisions in Section 232, reducing them to irrelevance,” and, if the decision stands, “Presidents will be able to usurp congressional authority to set tariffs by simply receiving an affirmative ‘threat to impair’ report from the Secretary of Commerce, who serves at the President’s pleasure.” The plaintiff group specifically argues that the panel majority overlooked or misapplied three points of law and fact:
- Misread Section 232 as providing the President unfettered discretion to increase tariffs on, or otherwise adjust, imports at any time following an affirmative report by the Secretary of Commerce.
- Transformed Section 232 into “an unlimited delegation of legislative power to the President to regulate international commerce.”
- Misconstrued the equal protection guarantees of the Fifth Amendment to the U.S. Constitution.
In seeking a full rehearing, the plaintiff group asks that the Federal Circuit uphold the CIT’s July 14, 2020 decision that former President Trump’s tariff increase on steel imports from Turkey was unlawful. See July 14, 2020 Update.