The American Institute for International Steel has filed an appeal to the Supreme Court in its challenge to the constitutionality of Section 232 tariffs. The petition for certiorari asks, “Is section 232 facially unconstitutional on the ground that it lacks any boundaries that confine the President’s discretion to impose tariffs on imported goods and, therefore, constitutes an improper delegation of legislative authority and a violation of the principle of separation of powers established by the Constitution?” If the case succeeds, “it would preclude the President from relying on section 232 at all,” the brief says. The Court of International Trade and U.S. Court of Appeals for the Federal Circuit both ruled that Supreme Court precedent from the 1970s requires a finding that the tariffs are constitutional (see 2002280058). AIIS hopes to get a decision on whether the Supreme Court will hear the case by the court’s summer recess, said its lawyer, Alan Morrison of George Washington University Law School.
The Commerce Department is proposing to expand steel import licensing requirements to cover more steel products and require more information to be submitted to obtain the licenses, it said. The agency’s proposed rule would also indefinitely extend the expiration date of the program, which had previously been renewed every four years and was set to expire in 2022, by removing provisions on the program’s expiration from the regulations.
The president has the authority to modify Section 232 tariffs after their initial implementation, and acted within that authority when he issued new tariffs on aluminum and steel “derivatives” that took effect in February, the Justice Department said in a brief filed March 20 that seeks dismissal of a lawsuit filed by PrimeSource.
The coronavirus bill pending in Congress includes a provision that could help importers that have been unprofitable after the imposition of Section 301 or Section 232 tariffs. According to draft text of the CARES Act (Coronavirus Aid, Relief and Economic Security Act), companies can use the losses they incurred in 2018, 2019 or 2020 to get income tax refunds from the previous five years. They could apply now for those 2018 and 2019 losses.
CBP should look at “extending the liquidation of all unliquidated entries by 90 or 180 days,” the Business Alliance for Customs Modernization told the agency in a March 23 letter. Those extensions “would help ensure that importers who may be eligible for duty refunds (e.g., based on Section 232 or Section 301 product exclusion approvals) do not miss opportunities to pursue such refunds administratively due to staffing issues caused by COVID-19.” BACM offered its support for deferring collections of customs duties and asked “that payments related to past liabilities, such as denied protests, also be temporarily deferred.” BACM suggested several other items it said “would help ease the burden on the trade community during this time.”
A group of Republican senators supports a temporary delay in duty collections, they said in a March 25 letter to President Donald Trump. “We believe it would be wise to provide a temporary deferral of duty collection for businesses to opt-in to,” said the letter, which was led by Senate Finance Committee Chairman Chuck Grassley, R-Iowa. “There are a number of ways to do this that would be helpful that are already being reviewed through the interagency process. Similar to the IRS providing Americans an additional 90 days to make tax payments without incurring interest or penalties, a duty deferral would be a commonsense way to improve the liquidity of our businesses during this time of economic disruption.”
The Court of International Trade will hear the recent series of lawsuits challenging Section 232 tariffs on steel and aluminum derivatives as a three-judge panel, according to multiple people familiar with the cases. Though the court’s case management system was down as of press time for an IT upgrade, the panel will apparently decide the similar cases filed in recent weeks by PrimeSource, Oman Fasteners, Huttig, Astrotech, Trinity, New Supplies, Aslanbas, J. Conrad, Metropolitan Staple, and 10 companies including SouthernCarlson (see 2003030048).
CBP issued the following releases on commercial trade and related matters:
Senate Finance Committee Chairman Chuck Grassley, R-Iowa, speaking to reporters on a conference call March 10, addressed his participation in a friend of the court brief by saying that he hasn't turned away from the idea of legislating in favor of lawsuits. Grassley, along with the top Democrat on his committee and other senators, entered a friend of the court brief designed to force the administration to publish its report on why imported autos and auto parts are a threat to national security (see 2003090034). He said both the law that contains Section 232 and the law that allowed for the Section 301 tariffs on China need to be fixed to give Congress more say on tariff policy. “I think we can do more in the legislative approach than you can in the courts, but we’re looking at both,” he said. “You take every opportunity you can to make sure the Constitution is followed.”
The following lawsuits were filed at the Court of International Trade during the week of March 2-8: