TRANSPACIFIC STEEL LLC, BORUSAN MANNESMANN BORU SANAYI VE TICARET A.S., BORUSAN MANNESMANN PIPE U.S. INC., THE JORDAN INTERNATIONAL COMPANY, Plaintiffs-Appellees v. UNITED STATES, JOSEPH R. BIDEN, JR., IN HIS OFFICIAL CAPACITY AS PRESIDENT OF THE UNITED STATES, UNITED STATES CUSTOMS AND BORDER PROTECTION, TROY MILLER, IN HIS OFFICIAL CAPACITY AS SENIOR OFFICIAL PERFORMING THE DUTIES OF THE COMMISSIONER FOR UNITED STATES CUSTOMS AND BORDER PROTECTION, DEPARTMENT OF COMMERCE, GINA RAIMONDO, IN HER OFFICIAL CAPACITY AS SECRETARY OF COMMERCE, Defendants-Appellants
2020-2157
United States Court of Appeals for the Federal Circuit
July 13, 2021
Appeal from the United States Court of International Trade in No. 1:19-cv-00009-CRK-GSK-JAR, Senior Judge Jane A. Restani, Judge Claire R. Kelly, Judge Gary S. Katzmann.
MATTHEW MOSHER NOLAN, Arent Fox, LLP, Washington, DC, argued for all plaintiffs-appellees. Plaintiff-appellee Transpacific Steel LLC also represented by DIANA DIMITRIUC QUAIA, NANCY NOONAN, LEAH N. SCARPELLI, RUSSELL ANDREW SEMMEL.
JULIE MENDOZA, Morris, Manning & Martin, LLP, Washington, DC, for plaintiffs-appellees Borusan Mannesmann Boru Sanayi ve Ticaret A.S., Borusan Mannesmann Pipe U.S. Inc. Also represented by DONALD CAMERON, JR., EUGENE DEGNAN, MARY HODGINS, BRADY MILLS, R. WILL PLANERT, EDWARD JOHN THOMAS, III.
LEWIS LEIBOWITZ, The Law Office of Lewis E. Leibowitz, Washington, DC, for plaintiff-appellee Jordan International Company.
TARA K. HOGAN, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, DC, argued for defendants-appellants. Also represented by BRYAN M. BOYNTON, JEANNE DAVIDSON, ANN MOTTO, MEEN GEU OH, STEPHEN CARL TOSINI.
Before REYNA, TARANTO, and CHEN, Circuit Judges.
Opinion for the court filed by Circuit Judge TARANTO.
Dissenting opinion filed by Circuit Judge REYNA.
In section 232 of the Trade Expansion Act of 1962, Pub. L. No. 87–794, 76 Stat. 872, 877, codified as amended at
In January 2018, the Secretary, in compliance with the process and timing requirements of
Transpacific Steel LLC, Borusan Mannesmann Boru Sanayi Ve Ticaret A.S., Borusan Mannesmann Pipe U.S. Inc., and the Jordan International Company (together, Transpacific)—importers of Turkish steel (in some cases also producers or exporters)—sued in the Court of International Trade (Trade Court), alleging that the President‘s issuance of Proclamation 9772 was unlawful. The Trade Court held the action unlawful on two grounds. First, the court held that Proclamation 9772 was unauthorized because, unlike the initial Proclamation 9705, it was issued outside the time periods set out in
We reverse. The President did not violate
I
A
Section 1862 empowers and directs the President to act to alleviate threats to national security from imports. It does so by modifying and adding to other presidential authority granted by Congress.
Subsection (a). The first subsection of
Subsection (b). The next subsection sets forth the agency-level processes required for exercise of
If the Secretary receives a request from an agency or department head or an “application of an interested party,” or on the Secretary‘s “own motion,” the Secretary must “immediately initiate an appropriate investigation to determine the effects on the national security of imports of the [relevant] article.”
Subsection (c). The next subsection lays out the President‘s authority and obligation to act under
In paragraph (3), subsection (c) specifically addresses the circumstance in which one of the actions that the President initially chooses is not a unilateral imposition on certain imports but, instead, bilateral or multilateral in character, i.e., negotiation of an agreement that “limits or restricts the importation into, or the exportation to, the United States of the article that threatens to impair national security.”
Subsection (d). Congress included what amounts to a definitional provision for
B
1
On April 19, 2017, the Secretary of Commerce started “an investigation to determine the effects on the national security of imports of steel.” Notice Request for Public Comments and Public Hearing on Section 232 National Security Investigation of Imports of Steel, 82 Fed. Reg. 19,205, 19,205 (Apr. 26, 2017). After following the processes, and within the time, prescribed by
The Secretary found that “the present quantities and circumstance of steel imports are weakening our internal economy and threaten to impair the national security as defined in Section 232.” Id. at 40,204 (internal quotation marks omitted). Underlying that finding, the Secretary explained, were “[n]umerous U.S. steel mill closures, a substantial decline in employment, lost domestic sales and market share, and marginal annual net income for U.S.-based steel companies.” Id. Because the “declining steel capacity utilization rate is not economically sustainable,” the Secretary reported that “the only effective means of removing the threat of impairment is to reduce imports to a level that should, in combination with good management, enable U.S. steel mills to operate at 80 percent or more of their rated production capacity.” Id.
Based on the finding of a need for 80% average capacity utilization for the sustainable industry required to remove the national-security threat, the Secretary made several recommendations about how to adjust imports that were leaving domestic plants underutilized. The first option was a “global quota or tariff.” Id. at 40,205. For the global quota, the Secretary recommended a quota limiting steel imports to 63% of 2017 import levels; for the global tariff, the Secretary recommended a 24% tariff on all steel imports. Id. The second option was “tariffs on a subset of countries.” Id. Under that approach, the Secretary recommended a 53% tariff on all steel imports from “Brazil, Sоuth Korea, Russia, Turkey, India, Vietnam, China, Thailand, South Africa, Egypt, Malaysia and Costa Rica.” Id. For every option, the Secretary noted that “the President could determine that specific countries should be exempted from the proposed” quota or tariff. Id. But if the President determined that certain countries should be exempt, the “Secretary recommend[ed] that any such determination should be made at the outset and a corresponding adjustment be made to the final quota or tariff imposed on the remaining countries.” Id. at 40,205–06.
The Secretary further recommended “an appeal process by which affected U.S. parties could seek an exclusion from the tariff or quota imposed.” Id. at 40,206. Under that process, the “Secretary would grant
2
After receiving the Secretary‘s January 11, 2018 report, with its finding that imports of steel articles threatened to impair national security because they were preventing 80% domestic capacity utilization, the President issued several proclamations relevant here.
Proclamation 9705. On March 8, 2018, well within the prescribed 90 days of receiving the report, the President issued Proclamation 9705. 83 Fed. Reg. 11,625 (Mar. 15, 2018). The President stated that he “concur[red] in the Secretary‘s finding” on steel articles and had “considered [the Secretary‘s] recommendations.” Id. at 11,626, ¶ 5. The President “decided to adjust the imports of steel articles by imposing a 25 percent ad valorem tariff on steel articles . . . imported from all countries except Canada and Mexico.” Id. at 11,626, ¶ 8. The tariffs would take effect on March 23, 2018, and “continue in effect, unless such actions are expressly reduced, modified, or terminated.” Id. at 11,627–28, § 5(a).
On the exception, the President explained that “Canada and Mexico present a special case” because of the countries’ “close relation” with and “physical proximity” to the United States and because the President sought “to continue ongoing discussions with these countries.” Id. at 11,626, ¶ 10. The President also stated his willingness to negotiate with “[a]ny country” that has “a security relationship” with the United States in order to discuss “alternative ways to address the threatened impairment of the national security caused by imports from that country.” Id. at 11,626, ¶ 9. The President highlighted, though, that if the negotiations led to an agreement with a country with “a satisfactory alternative means to address” the national-security threat, he “may remove or modify the restriction on steel articles imports from that country and, if necessary, make any corresponding adjustments to the tariff as it applies to other countries as our national security interests require.” Id. (emphasis added). In other words, a negotiated deal with one country, if it was generous regarding steel imports from that country, might require lowering imports from other countries by raising the initial tariff imposed on them, so that the 80% capacity-utilization level could be reached.
To facilitate the planned course of action, the President ordered the Secretary to “continue to monitor imports of steel articles,” to consult “from time to time” with various officials “as the Secretary deems appropriate,” and to “review the status of such imports with respect to the national security.” Id. at 11,628, § 5(b). He also ordered the Secretary to “inform the President of any circumstances that in the Secretary‘s opinion might indicate the need for further action by the President” or if “the increase in duty rate provided for in this proclamation is no longer necessary.” Id.
Proclamations 9711, 9740, and 9759. Thereafter, the President negotiated with many countries, made agreements with some, and adjusted tariffs on countries that did not negotiate or reach an agreement with the United States. For example, two weeks after Proclamation 9705, the President issued Proclamation 9711. 83 Fed. Reg. 13,361 (Mar. 22, 2018). In that proclamation, the President highlighted
About five weeks later, on April 30, 2018, the President issued Proclamation 9740 announcing agreements and further negotiations. 83 Fed. Reg. 20,683 (May 7, 2018). The President announced that negotiations with South Korea had succeeded, producing an agreement “on a range of measures, . . . including a quota that restricts the quantity of steel articles imported into the United States from South Korea.” Id. at 20,683, ¶ 4. The President also reported that the “United States has agreed in principle with Argentina, Australia, and Brazil on satisfactory alternative means” and temporarily exempted those countries from the 25% ad valorem tariff “to finalize the details” of the agreements. Id. at 20,684, ¶ 5. And he noted that the United States was “continuing discussions with Canada, Mexico and the [European Union].” Id. at 20,684, ¶ 6.
Later, on May 31, 2018, the President, in Proclamation 9759, announced that the United States had reached agreements with Argentina, Australia, and Brazil. 83 Fed. Reg. 25,857, 25,857–58 (June 5, 2018).
Proclamations 9772 and 9886. On August 10, 2018, just over five months after the President issued the first proclamation (Proclamation 9705), he issued the proclamation challenged here by Transpacific, i.e., Proclamation 9772. 83 Fed. Reg. 40,429 (Aug. 15, 2018). The President explained that the Secretary had monitored imports of steel articles (as directed in Proclamation 9705) and, based on that monitoring, the Secretary had “informed [the President] that while capacity utilization in the domestic steel industry has improved, it is still below the target capacity utilization level” identified in the January 2018 report and imports were “still several percentagе points greater than the level of imports that would allow domestic capacity utilization to reach the target level.” Id. at 40,429, ¶¶ 3–4. The President added that in the “January 2018 report, the Secretary recommended . . . applying a higher tariff to a list of specific countries” if the President “determine[d] that all countries should not be subject to the same tariff.” Id. at 40,429, ¶ 6. The President also noted that the Secretary‘s report had Turkey on the list and that the report explained that “Turkey is among the major exporters of steel to the United States for domestic consumption.” Id. Then the President declared: “To further reduce imports of steel articles and increase domestic capacity utilization, I have determined that it is necessary and appropriate to impose a 50 percent ad valorem tariff on steel articles imported from Turkey, beginning on August 13, 2018.” Id. The President also highlighted that the Secretary had advised
The 50% ad valorem tariff on Turkish steel remained in place for just under nine months—until May 21, 2019—when it returned to 25%. See Proclamation 9886 of May 16, 2019, 84 Fed. Reg. 23,421 (May 21, 2019). In the proclamation announcing the return to the 25% level, the President stated that the Secretary had advised him “that, since the implementation of the higher tariff under Proclamation 9772, . . . the domestic industry‘s capacity utilization ha[d] improved . . . to approximately the target level recommended in the Secretary‘s report.” Id. at 23,421–22, ¶ 6. The President determined that “[t]his target level, if maintained for an appropriate period, will improve the financial viability of the domestic steel industry over the long term.” Id. at 23,422, ¶ 6. “Given these improvements,” the President “determined that it [wa]s necessary and appropriate to remove the higher tariff on steel imports from Turkey imposed by Proclamation 9772, and to instead impose a 25 percent ad valorem tariff on steel imports from Turkey.” Id. at 23,422, ¶ 7. The President also determined that “[m]aintaining the existing 25 percent ad valorem tariff on most countries [wa]s necessary and appropriate at this time to address the threatened impairment of the national security that the Secretary found in the January 2018 report.” Id.
C
On January 17, 2019, while the 50% tariff was in effect, Transpacific sued the United States, two agencies of the United States (the Department of Commerce and U.S. Customs and Border Protection), the President, and the heads of the two agencies, invoking the Trade Court‘s jurisdiction under
On April 3, 2019, the government moved to dismiss the suit for failure to state a claim, and on November 15, 2019, the Trade Court denied the motion. Transpacific Steel LLC v. United States, 415 F. Supp. 3d 1267, 1269 (Ct. Int‘l Trade 2019) (Transpacific I). The Trade Court held that Transpacific stated a claim that the timing provisions of
Shortly thereafter, the other appellees were permitted to intervene as co-plaintiffs. See J.A. 64–65. On January 21, 2020, the parties jointly moved for a judgment
As to
As to equal protection, the Trade Court concluded that the government flunked the rational-basis standard. “Singling out steel products from Turkey,” reasoned the court, “is not a rational means of addressing” the government‘s national-security concern. Id. at 1258. According to the court, the “status quo under normal trade relations is equal tariff treatment of similar products irrespective of country of origin. Although deviation from this general principle is allowable, such deviation cannot be arbitrarily and irrationally enforced in a way that treats similarly situated classes differently without permissible justification.” Id. (citation omitted). The court, seeing no permissible justification, concluded: “Proclamation 9772 denies [Transpacific] the equal protection of the law.” Id.
The court then addressed Transpacific‘s procedural-due-process argument. It stated: “[T]he process [Transpacific] request[s] is simply that the government be made to comply with the procedures laid out in the statute. Because we hold that [Transpacific is] entitled to that process under the statute, we need not also answer whether any constitutional guarantees of Due Process were violated.” Id. at 1259. The court added: “Whatever constitutional minimum process might be owed, it is satisfied by requiring that the President abide by the statute‘s procedures.” Id.
The same day, the Trade Court entered final judgment. J.A. 1. The court ordered that Proclamation 9772 “is declared unlawful and void” and ordered that the “United States Customs and Border Protection refund [Transpacific] the difference between any tariffs collected on its imports of steel products” under Proclamation 9772 “and the 25% ad valorem tariff that would otherwise apply on these imports together with such costs and interest as provided by law.” J.A. 1–
The government timely appealed the Trade Court‘s judgment. We have jurisdiction under
II
The government challenges the Trade Court‘s rulings that Proclamation 9772 violated
We review the judgment on the agency record without deference. See Fedmet Resources Corp. v. United States, 755 F.3d 912, 918 (Fed. Cir. 2014). This appeal involves only legal issues, which we decide de novo. See GPX Int‘l Tire Corp. v. United States, 780 F.3d 1136, 1140 (Fed. Cir. 2015).
A
The Trade Court concluded that
The key issue is whether
authority of the President includes authority to adopt and carry out a plan of action that allows adjustments of specific measures, including by increasing import restrictions, in carrying out the plan over time. Transpacific does not argue that Proclamation 9772 is unlawful under the statute if, as we conclude, the President has the authority to adopt and pursue such a continuing course of action.
In our statutory analysis, we consider text and context, including purpose and history. Judge Reyna, in dissent, reaches different conclusions about these considerations and about the bottom-line result. Our discussion of the individual considerations provides, without further direct reference to Judge Reyna’s dissent, the reasons we take a different view on the points of disagreement.
1
We start with the text of
(c) Adjustment of imports; determination by President; report to Congress; additional actions; publication in Federal Register
(1)(A) Within 90 days after receiving a report submitted under subsection (b)(3)(A) in which the Secretary finds that an article is being imported into the United States in such quantities or under such circumstances as to threaten to impair the national security, the President shall—
- determine whether the President concurs with the finding of the Secretary, and
- if the President concurs, determine the nature and duration of the action that, in the judgment of the President, must be taken to adjust the imports of the article and its derivatives so that such imports will not threaten to impair the national security.
(B) If the President determines under subparagraph (A) to take action to adjust imports of an article and its derivatives, the President shall implement that action by no later than the datе that is 15 days after the day on which the President
determines to take action under subparagraph (A).
Paragraph (1) contains several time directives. Within 90 days after receiving a report with a finding that importation of an article threatens to impair national security, the President shall, first, determine whether the President concurs with the finding of the Secretary,
The Trade Court’s interpretation of subsection (c)(1)’s time directives does not follow from the ordinary meaning of the provision’s language at the time of enactment. In two ways, the Trade Court took too narrow a view of what the ordinary meaning allows.
First: The Trade Court indicated its view that the necessary implication of the timing provisions was that no burden-increasing action could be taken after the specified times. Transpacific I, 415 F. Supp. 3d at 1275 n.13; Transpacific II, 466 F. Supp. 3d at 1252 ([T]he temporal restrictions on the President’s power to take action pursuant to a report and recommendation by the Secretary is not a mere directory guideline, but a restriction that requires strict adherence. To require adherence to the statutory scheme does not amount to a sanction, but simply ensures that the deadlines are given meaning and that the President is acting on up-to-date national security guidance.). But that is not a necessary implication of the words.
As a matter of ordinary meaning, a command to take this action by time T is often, in substance, a compound command—one, a directive (with conferral of authority) to take the action, and, two, a directive to do so by the prescribed time. A violation of the temporal obligation imposed by the second directive does not necessarily negate the primary obligation imposed by—let alone the grant of authority implicit in—the first directive. For example: Most people would understand the directive return the car by 11 p.m. to require the return of the car even after 11 p.m. See, e.g., Henson v. Santander Consumer USA Inc., 137 S. Ct. 1718, 1722 (2017) (using a conversation between friends to show ordinary meaning). That is why a real addition of meaning, or at least a resolution of uncertainty, results when take this action by time T is followed by words like or else don’t take it at all.
The Supreme Court has recognized this linguistic point in the context of statutory commands to executive officers to take action within a specified time. It has made clear that such a command does not, without more, entail lack of authority, or of obligation, to take the action after that date has passed, even though the obligation to act by the specified time has been violated. The Court so ruled in 1986 in Brock v. Pierce County, concluding that the mere use of the word shall in [a statute], standing alone, is not enough to remove the [official’s] power to act after the time deadline. 476 U.S. 253, 262 (1986). As the Supreme Court summarized the point some years later, Brock held that the particular time command was meant to spur the Secretary to action, not to limit the scope of his authority, so that untimely action was still valid. Barnhart v. Peabody Coal Co., 537 U.S. 149, 158 (2003) (quoting Brock, 476 U.S. at 265). In 2003, the Court emphasized: Nor, since Brock, have we ever construed a provision that the Government shall act within a specified time, without more, as a jurisdictional limit precluding action later. Id.; see also, e.g., id. at 157 (It misses the point simply to argue that the October 1, 1993, date was mandatory, imperative, or a deadline, as of course it was, however unrealistic the mandate may have been.); id. at 160–61 (explaining that Brock made clear that a statute directing official action needs more than a mandatory shall before the grant of power can sensibly be read to expire when the job is supposed to be done); United States v. James Daniel Good Real Prop., 510 U.S. 43, 63 (1993) ([I]f a statute does not specify a consequence for noncompliance
The commonsense linguistic point, and its application in the statutory setting, formed the backdrop to Congress’s amendments to
Second: The Trade Court’s ruling also appears to rest on a premise that the provisions of
The terms action and take action are not limited in that way, but can readily be used to refer to a process or launch of a series of steps over time. See, e.g., Action, Black’s Law Dictionary 49 (4th ed. 1957) (an act or series of acts); Black’s Law Dictionary 26 (5th ed. 1979) (same); Garner’s Dictionary of Modern Legal Usage 19 (2d ed. 1995) (action suggests a process—the many discrete events that make up a bit of behavior—whereas act is unitary); Garner’s Dictionary of Legal Usage 18 (3d ed. 2011) (same); Black’s Law Dictionary 37 (11th ed. 2019) (The process of doing something); see also, e.g., Action, Random House Webster’s Unabridged Dictionary 20 (2d ed. 2001) (similar); American Heritage Dictionary 17 (3d ed. 1992) (similar); Garner’s Dictionary of Modern American Usage 14 (1998) (Act is unitary, while action suggests a process—the many discrete events that make up a bit of behavior.); Garner’s Modern American Usage 16 (3d ed. 2009) (same). The authorization for the President to determine the nature and duration of the action,
2
What the terms of subsection (c)(1) indicate, relevant statutory context reinforces. See Merit Mgt. Group, LP v. FTI Consulting, Inc., 138 S. Ct. 883, 892–93 (2018) (considering [t]he language of [the provision at issue], the specific context in which that language is used, and the broader statutory structure); Johnson v. United States, 559 U.S. 133, 139 (2010) (Ultimately, context determines meaning.); Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts § 24, at 167 (2012) ([T]he whole-text canon . . . calls on the judicial interpreter to consider the entire text, in view of its structure and of the physical and logical relation of its many parts.).
Paragraph (3) specifically bolsters the understanding that the President is not barred, by paragraph (1), from adopting, outside the 15-day period for implementation, specific new burden-imposing measures not decided on and adopted within the period. Paragraph (3) so indicates for the situation when the initially proclaimed action is (bilateral or multilateral) negotiation:
(3)(A) If—
- the action taken by the President under paragraph (1) is the negotiation of an agreement which limits or restricts the importation into, or the exportation to, the United States of the article that threatens to impair national security, and
- either—
- no such agreement is entered into before the date that is 180 days after the date on which the President makes the determination under paragraph (1)(A) to take such action, or
- such agreement that has been entered into is not being carried out or is ineffective in eliminating the threat to the national security posed by imports of such article,
the President shall take such other actions as the President deems necessary to adjust the imports of such article so that such imports will not threaten to impair the national security. The President shall publish in the Federal Register notice of any additional actions being taken under this section by reason of this subparagraph.
Subparagraph (A) indicates that one of the President’s options is to try to secure agreements with foreign nations. Negotiation and agreement themselves will typically occur after the 15 days specified in subsection (c)(1)(B) have passed. That is all the more true of the other actions the President is directed to take if negotiations fail or if resulting agreements are violated or are ineffective in eliminating the national-security threat. Those provisions run counter to the Trade Court’s view that Congress forbade presidential imposition of newly specified burdens after
This does not mean that the statutory purpose is furthered by permitting any presidential imposition after the 15-day period, even an imposition that makes no sense except on premises that depart from the Secretary’s finding, whether because the finding is simply too stale to be a basis for the new imposition or for other reasons. The statute indisputably incorporates a congressional judgment that an affirmative finding of threat by the Secretary is the predicate for presidential action, while also incorporating a congressional judgment that how to address the problem identified in the finding is a matter for the President, whose choices about remedy are not constrained by the Secretary’s recommendations. See
It is enough to say that the Trade Court’s categorical narrow reading of
Transpacific has suggested that the President’s authority to act outside the 15-day period without securing a new report from the Secretary is limited to relaxing impositions imposed initially within that
3
The legal and historical backdrop against which Congress legislated confirms that under
a
Since 1955, Congress has delegated to the President broad discretion to adjust imports of an article that threaten to impair national security, if a designated executive officer has made a finding of such a threat. Subsequent amendments made changes, including changes to enhance the process leading to the predicate finding at the agency level and, at the presidential level, generally to add to the President’s authority and obligation to act in response to the relevant official’s threat finding. Throughout, Congress has retained the key term action in describing the President’s response.
Section 7 of the Trade Agreements Extension Act of 1955 provided in relevant part:
(b) In order to further the policy and purpose of this section, whenever the Director of the Office of Defense Mobilization has reason to believe that any article is being imported into the United States in such quantities as to threaten to impair the national security, he shall so advise the President, and if the President agrees that there is reason for such belief, the President shall cause an immediate investigation to be made to determine the facts. If, on the bаsis of such investigation, and the report to him of the findings and recommendations made in connection therewith, the President finds that the article is being imported into the United States in such quantities as to threaten to impair the national security, he shall take such action as he deems necessary to adjust the imports of such article to a level that will not threaten to impair the national security.
Trade Agreements Extension Act of 1955, ch. 169, § 7, 69 Stat. 162, 166 (emphasis added). The provision gave the executive officer the responsibility to make a preliminary reason to believe finding, but it did not expressly declare that the officer, after investigation, must make a positive finding of threat as a precondition to presidential action.
In the Trade Agreements Extension Act of 1958, Congress made that precondition explicit and also made other amendments, while keeping the word action. See Algonquin, 426 U.S. at 568 (The 1958 amendments added no limitations with respect to the type of action that
(b) Upon request of the head of any Department or Agency, upon application of an interested party, or upon his own motion, the Director of the Office of Defense and Civilian Mobilization (hereinafter in this section referred to as the Director) shall immediately make an appropriate investigation, in the course of which he shall seek information and advice from other appropriate Departments and Agencies, to determine the effects on the national security of imports of the article which is the subject of such request, application, or motion. If, as a result of such investigation, the Director is of the opinion that the said article is being imported into the United States in such quantities or under such circumstances as to threaten to impair the national security, he shall promptly so advise the President, and, unless the President determines that the article is not being imported into the United States in such quantities or under such circumstances as to thrеaten to impair the national security as set forth in this section, he shall take such action, and for such time, as he deems necessary to adjust the imports of such article and its derivatives so that such imports will not threaten to impair the national security.
Pub. L. No. 85–686, § 8(b), 72 Stat. 673, 678 (emphases added).
In addition to making explicit that the designated officer must make the threat finding, the 1958 provision embodied four relevant changes from the 1955 version. First, Congress expanded the President’s power by adding that the President may adjust not only the article but also its derivatives, even though the executive officer’s report had to investigate only the article. Second, Congress clarified that the President’s discretion for the action included not only the nature of the action (i.e., such action) but its duration (i.e., for such time). Third, Congress broadened what would suffice as the predicate for the President’s authority: [W]hile under the 1955 provision the President was authorized to act only on a finding that ‘quantities’ of imports threatened to impair the national security, the 1958 provision also authorized Presidential action on a finding that an article is being imported ‘under such circumstances’ as to threaten to impair the national security. Algonquin, 426 U.S. at 568 n.24. Fourth, Congress removed the requirement that the relevant officer seek the President’s approval before starting an investigation. These features stayed materially the same until 1988.
In 1962, Congress reenacted the 1958 provision—without material change, the Supreme Court has noted, though some wording was altered (e.g., the predicate opinion became a predicate finding)—as section 232 of the Trade Expansion Act of 1962, Pub. L. No. 87–796, 76 Stat. 872, 977. See Algonquin, 426 U.S. at 568 (When the national security provision next came up for re-examination, it was re-enacted without material change as § 232(b) of the Trade Expansion Act of 1962.). Between 1966 and 1988, Congress made various changes to the statute that have not been featured in the arguments made to this court in this case. For example, in 1975, Congress made the Secretary of the Treasury the official with the predicate-finding responsibility and relocated the unless clause addressing presidential disagreement with the predicate threat finding. See Trade Act of 1974, Pub. L. No. 93–618, § 127(d)(3), 88 Stat. 1978, 1993 (replacing the Director of the Office of Emergency Planning with the Secretary of
Just before Congress enacted its amendments in 1988,
Upon request of the head of any department or agency, upon application of an interested party, or upon his own motion, the Secretary of the Treasury (hereinafter referred to as the Secretary) shall immediately make an appropriate investigation, in the course of which he shall seek information and advice from, and shall consult with, the Secretary of Defense, the Secretary of Commerce, and other appropriate officers of the United States, to determine the effects on the national security of imports of the article which is the subject of such request, application, or motion.
The Secretary shall, if it is appropriate and after reasonable notice, hold public hearings or otherwise afford interested parties an opportunity to present information and advice relevant to such investigation. The Secretary shall report the findings of his investigation under this subsection with respect to the effect of the importation of such article in such quantities or under such circumstances upon the national security and, based on such findings, his recommendation for action or inaction under this section to the President within one year after receiving an application from an interested party or otherwise beginning an investigation under this subsection.
If the Secretary finds that such article is being imported into the United States in such quantities or under such circumstances as to threaten to impair the national security, he shall so advise the President and the President shall take such action, and for such time, as he deems necessary to adjust the imports of such article and its derivatives so that such imports will not threaten to impair the national security, unless the President determines that the article is not being imported into the United States in such quantities or under such circumstances as to threaten to impair the national security.
In sum, from the beginning, Congress delegated broad powers to the President to combat imports that a designated executive officer found to threaten to impair national security. The word action, which reflected the President’s broad discretion in determining the nature of the act, has always been present. Congress broadened the President’s already broad power in 1958 and, at the same time, reinforced the range of presidential discretion by adding the phrase for such time.
b
Practice under
i
From 1955 to 1988, Presidents frequently adjusted imports, including by increasing
The specific impоsition initially adopted in Proclamation 3279 was modified at least 26 times before a new investigation and report were completed—16 years later in 1975. See Restriction of Oil Imports, 43 Op. Att’y Gen. 20, 22 (1975) (1975 AG Opinion) (Proclamation 3279 has been amended at least 26 times since its issuance in 1959. (citing
In 1975, the Attorney General formally opined on the proper interpretation of the statute and concluded that it permitted modifications of prior actions:
The normal meaning of the phrase such action, in a context such as this, is not a single act but rather a continuing course of action, with respect to which the initial investigation and finding would satisfy the statutory requirement. This interpretation is amply supported by the legislative history of the provision, which clearly contemplates a continuing process of monitoring, and modifying the import restrictions, as their limitations become apparent and their effects change.
1975 AG Opinion at 21 (emphases added).7 The Attorney General emphasized the long
In 1982, the Office of Legal Counsel stated that, for at least some changes, it would be advisable to seek a new predicate finding, but the circumstances, involving remoteness or indirectness of the connection of the presidential action to the threat, are not present here. See 6 Op. O.L.C. at 561 (discussing remoteness of a program’s impact on importation); see also The President’s Power to Impose a Fee on Imported Oil Pursuant to the Trade Expansion Act of 1962, 6 Op. O.L.C. 74, 77–80 (1982) (discussing whether to get a new report with a predicate finding to avoid challenges based on the remoteness or indirectness of the proposed import restrictions). We have no occasion to explore such situations.
Congress amended the statute in April 1980, adding what is now subsection (f), which addresses petroleum and sets out a congressional-disapproval process. Crude Oil Windfall Profit Tax Act, § 402, 94 Stat. at 301. Between the Attorney General’s 1975 opinion and that amendment, which was the last one before 1988, the President continued to modify measures adopted under the statute without obtaining new formal reports. See PrimeSource Bldg. Prods., Inc. v. United States, 497 F. Supp. 3d 1333, 1375–76, 1387–88 (Ct. Int’l Trade 2021) (Baker, J., concurring in part and dissenting in part) (noting at least seven instances). Between the April 1980 amendment and the inauguration of the new President in January 1981, the President modified a prior proclamation at least four times without a new investigation and report. See id. (noting at least four instances). It is not disputed before us that the modifications during the decades of practice included impositions of additional restrictions. See, e.g., id. at 1386–88.
At the time of the 1988 amendments, then, practice under and executive interpretation of the statute provided a settled meaning of action as including a plan or a continuing course of action. See Oral Arg. at 1:04:06–1:04:21 (Q: The pre-1988 version, you would agree, it gave the President the authority to do subsequent actions years after the initial proclamation? Is that right? A: That is the way the statute reads.). This settled meaning is strongly presumed to have continued through the 1988 amendments, which kept the key term action, even while making other changes to the provision, indeed the subsection, in which the term appeared. See, e.g., Helsinn Healthcare S.A. v. Teva Pharms. USA, Inc., 139 S. Ct. 628, 633–34 (2019) (In light of this settled pre-AIA precedent on the meaning of ‘on sale,’ we presume that when Congress reenacted the same language in the AIA, it adopted the earlier judicial construction of that phrase.); Dir. of Revenue of Missouri v. CoBank ACB, 531 U.S. 316, 324 (2001) (requiring a clear indication of a change in meaning to disrupt the 50-year history of state taxation of banks for cooperatives); cf. NLRB v. Noel Canning, 573 U.S. 513, 525 (2014) ([T]he longstanding practice of the government can inform our determination of what the law is. (cleaned up)); Trump v. Hawaii, 138 S. Ct. 2392, 2415 (2018) (looking at historical practice for statutory interpretation).
ii
Overcoming the strong implication of continuity of the settled meaning would require a clear indication from Congress of a change in policy. United States v. O’Brien, 560 U.S. 218, 231 (2010) (internal quotation marks omitted). There is no such indication. Congress did not change action in 1988. And what it did change fails to imply the narrowing of presidential authority the Trade Court found.
In the 1988 amendments, Congress elaborated on the process by which the executive official responsible for making the predicate finding of threat—by then, the Secretary of Commerce—was to make that decision.
for what ended up as inaction or ineffective action.
None of the new language in the statute, on its own or by comparison to what came before, implies a withdrawal of previously existing presidential power to take a continuing series of affirmative steps deemed necessary by the President to counteract the very threat found by the Secretary. To be sure, Congress did change “for such time” language to “duration” language, but that change was a “stylistic” one only, not suggesting a change of meaning. Jama v. Immigration & Customs Enforcement, 543 U.S. 335, 343 n.3 (2005); see also Scalia & Garner, Reading Law § 40, at 256 (“stylistic or nonsubstantive changes” do not imply change of prior meaning); Universal Steel Prods., Inc. v. United States, 495 F. Supp. 3d 1336, 1351–52 (Ct. Int‘l Trade 2021); PrimeSource, 497 F. Supp. 3d at 1378 (Baker, J., concurring in part and dissenting in part). The same is true of the change from “take such action . . . as [the President] deems necessary” to “determine the nature . . . of the action that, in the judgment of the President, must be taken.”
The new provisions have the evident purpose of producing more action, not less—and of counteracting a perceived problem of inaction, including inaction through delay. In this context, the directive to the President to act by a specified time is not fairly understood as implicitly meaning “by then or not at all” as to
There is no material dispute that the background to the 1988 amendments was a perceived problem of inaction, including by delay. The conferees stated the problem: “Present law provides no time limit after the Commerce Secretary‘s report for the President‘s decision on the appropriate action to take.” Conf. Rep. at 711. Indeed, in 1982, having received a report from the Secretary finding a national-security threat from imports of ferroalloy products, the President was advised by the Office of Legal Counsel that “[n]o time frame constrains the President” in acting on the report. Presidential Authority to Adjust Ferroalloy Imports Under § 232(b) of the Trade Expansion Act of 1962, 6 Op. O.L.C. 557, 562 (1982); see also id. at 558, 563. Congress plainly acted to oblige the President to act within specified periods, but as Transpacific has acknowledged, nothing in the legislative history suggests that, if that duty was breached, the President could not act later. Oral Arg. at 1:02:44–1:03:16 (Q: “Where is there any expression of legislative intent that these time limits that were installed in 1988 into section 232(b) were designed to yank away from the President any authority to take action outside of that time limit? Is the answer that there really isn‘t anything in the legislative history on that?” A: “I would have to agree with Your Honor, yes, there is nothing in the legislative history that says that.“).
The specific focus of Congress‘s concern involved presidential inaction concerning imports of machine tools. Based on a March 1983 request for investigation, the Secretary, in February 1984, sent the President a report finding that “imports in certain machine tools markets did threaten the U.S. national security.” See General Accounting Office, International Trade: Revitalizing the U.S. Machine Tool Industry 9 (1990) (GAO). The President responded that the “report should incorporate new mobilization, defense, and economic planning factors then being developed by an interagency group” and “directed the Secretary of Commerce to update the machine tools investigation.” Statement on the Machine Tool Industry, 1986 Pub. Papers 632, 632–33 (May 20, 1986). Nearly two years later, in March 1986, the Secretary submitted an updated report, and two months after that, the President announced that he agreed with the Secretary‘s finding and proclaimed his “action plan,” his “course of action,” id.—to “seek voluntary export restraint agreements to reduce machine tool imports as part of an overall Domestic Action Plan supporting the industry‘s modernization efforts,” GAO at 9. About seven months later, in December 1986, the President announced that he reached a five-year voluntary restraint agreement with Japan and Taiwan. Id.; see also Statement on the Revitalization of the Machine Tool Industry, 1986 Pub. Papers 1632, 1632–33 (Dec. 16, 1986).
It is undisputed that “Congress did not applaud the” President‘s delay for the machine-tools articles. Fed. Republic of Germany, 141 S. Ct. at 711. The Trade Court has recognized as much. See Transpacific II, 466 F. Supp. 3d at 1252 (“[T]he 1988 Amendments were passed against the backdrop of President Reagan‘s failing to take timely action in response to the Secretary‘s report finding that certain machine tools threatened to impair national security and Congress‘s resulting frustration.“); Universal Steel, 495 F. Supp. 3d at 1352 n.17 (“The history of the 1988 amendments reveals that the amendments were motivated in no small part by a desire to accelerate Presidential action pursuant to Section 232. Congress had been frustrated by perceived undue Presidential delay in taking timely or effective action pursuant to the Secretary‘s report that machine
This history tends to undermine, not support, the Trade Court‘s ruling that the new timing provisions were meant not only to create a duty to act within specified periods but also to disable the President from acting later if those periods had ended, even if the actions were needed to effectuate the Secretary‘s finding of threat following a timely-announced plan of action.
4
Transpacific suggests that the Trade Court‘s narrow reading of
Relatedly, we reject Transpacific‘s suggestion that the Trade Court‘s interpretation of subsection (c)(1) is supported by the fact that paragraph (1) uses “action” (singular) while paragraph (3) uses “actions” (plural). Transpacific Response Br. at 24. “[U]nless the context indicates otherwise[,] words importing the singular include and apply to several persons, parties, or things; words importing the plural include the singular.”
Transpacific also suggests that the timing provisions were meant to prevent the President from acting on stale information. Transpacific Response Br. at 29; see also Transpacific II, 466 F. Supp. 3d at 1252. But that observation does not support the categorical narrow interpretation adopted by the Trade Court and pressed by Transpacific, especially given the already-discussed considerations of text and context, including purpose and history, that strongly undermine the narrow interpretation. Concerns about staleness of findings are better treated in individual applications of the statute, where they can be given their due after a focused analysis of the proper role of those concerns and the particular finding of threat at issue. In so stating, we add, we are not prejudging the scope of judicial reviewability of presidential determinations relevant to that concern.9
Here, there is no genuine concern about staleness. Proclamation 9772, the challenged proclamation, came only months after the initial announcement, which itself provided for just such a possible change in the future, and rested on a determination by the Secretary—about needed domestic-plant capacity utilization—as to which no substantial case of staleness has been made.10
Finally, Transpacific argues that the constitutional-doubt canon supports its narrow reading of
* * *
For the foregoing reasons, we reverse the Trade Court‘s determination that Proclamation 9772 violated
B
It is well established that the Fifth Amendment‘s Due Process Clause has an equal-protection guarantee that mirrors the Fourteenth Amendment‘s Equal Protection Clause. See Weinberger v. Wiesenfeld, 420 U.S. 636, 638 n.2 (1975);
The most demanding standard that could apply here is the undemanding rational-basis standard. Transpacific has made no persuasive case that the class of importers of a particular product from a particular country falls into any category for which a heightened standard of review under equal-protection analysis has been recognized. The Supreme Court “has long held that a classification neither involving fundamental rights nor proceeding along suspect lines cannot run afoul of the Equal Protection Clause if there is a rational relationship between the disparity of treatment and some legitimate governmental purpose.” Armour v. City of Indianapolis, 566 U.S. 673, 680 (2012) (cleaned up).
Under rational-basis review, Transpacific, as the challenger, has the burden to establish that there is no “reasonably conceivable state of facts that could provide a rational basis for the classification.” Heller v. Doe, 509 U.S. 312, 320 (1993) (internal quotation marks omitted); see also FCC v. Beach Commc‘ns, Inc., 508 U.S. 307, 313 (1993) (“In areas of social and economic policy, a statutory classification that neither proceeds along suspect lines nor infringes fundamental constitutional rights must be upheld against equal protection challenge if there is any reasonably conceivable state of facts that could provide a rational basis for the classification.“); Williamson v. Lee Optical of Oklahoma Inc., 348 U.S. 483, 487–88 (1955) (“But the law need not be in every respect logically consistent with its aims to be constitutional. It is enough that there is an evil at hand for correction, and that it might be thought that the particular legislative measure was a rational way to correct it.“).
Transpacific has failed to meet its burden. Proclamation 9772‘s “policy is plausibly related to the Government‘s stated objective to protect” national security. Hawaii, 138 S. Ct. at 2420. In Proclamation 9772, the President noted that the Secretary in the January 2018 report had recommended “applying a higher tariff to a list of specific countries should [the President] determine that all countries should not be subject to the same tariff“—a list that includes Turkey—and stated that “Turkey is among the major exporters of steel to the United States for domestic consumption.” 83 Fed. Reg. at 40,429, ¶ 6. And the President highlighted that the Secretary “advised [him] that this adjustment will be a significant step toward ensuring the viability of the domestic steel industry.” Id. For at least those reasons, the President determined that it was “necessary and appropriate”
Transpacific complains that the President singled out Turkey, even though other countries export more. Transpacific Response Br. at 38 (noting that “Canada, Mexico, Brazil, South Korea, Russia, Japan, Germany, and China” are major exporters of steel). But it is rational for the President to try a steep increase on tariffs for only one major exporter to see if that strategy helps to achieve the legitimate objective of improving domestic capacity utilization without extending the increase more widely. That is especially true because the United States‘s relations with any given country often will differ, in ways relevant to
Here, of the eight countries Transpacific mentions, the President was negotiating with at least four. See, e.g., Proclamation 9740, 83 Fed. Reg. at 20,683–84, ¶¶ 4–6 (noting negotiations with South Korea, Brazil, Canada, and Mexico, among other countries). Of those four, the President had reached agreements with two of them (Brazil and South Korea) before issuing Proclamation 9772. See, e.g., id. at 20,683–84, ¶¶ 4–5 (agreement with South Korea, which included “a quota that restricts the quantity of steel articles imported into the United States from South Korea“); Proclamation 9759, 83 Fed. Reg. at 25,857–58, ¶ 5 (agreement with Brazil, among other countries). And of the four countries the President might not have been negotiating with, two of them did not appear on the Secretary‘s list of a subset of countries to impose tariffs on. See January 2018 report, 85 Fed. Reg. at 40,205 (not listing Japan or Germany but listing “Brazil, South Korea, Russia, Turkey, India, Vietnam, China, Thailand, South Africa, Egypt, Malaysia and Costa Rica“). More generally, we see no authority or sound basis for treating equal-protection analysis under the rational-basis standard as requiring judicial inquiry into differences among particular countries’ relations with the United States that might legitimately affect the possibility of negotiations or furnish reasons not to include particular countries in efforts to reduce overall imports of a particular article. See Hawaii, 138 S. Ct. at 2421 (“[W]e cannot substitute our own assessment for the Executive‘s predictive judgments on such [foreign-policy] matters, all of which are delicate, complex, and involve large elements of prophecy.” (internal quotation marks omitted)).
The Trade Court concluded that the present “case is materially indistinguishable from Allegheny Pittsburgh Coal Company v. County Commission of Webster County, 488 U.S. 336 (1989).” Transpacific II, 466 F. Supp. 3d at 1258. We disagree. Allegheny must be read narrowly; the Supreme Court has made clear that it is the “exception,” the “rare case.” Armour, 566 U.S. at 686–87; see also Nordlinger v. Hahn, 505 U.S. 1, 16 (1992) (”Allegheny Pittsburgh was the rare case where the facts precluded any plausible inference that the reason
In the present case, in contrast, there is no applicable federal-law prohibition on different treatment of the imports of articles from different countries. The Trade Court cited
Transpacific also points to certain sources outside the agency record—i.e., outside the record on which the Trade Court‘s judgment rested, by joint motion—to support its argument that the only purpose of Proclamation 9772‘s policy is animus toward U.S. importers of Turkish steel. E.g., Transpacific Response Br. at 43. But Transpacific has not shown how animus towards importers of goods from a particular country (which is not animus towards people from particular countries) would, if shown, alter the applicability of rational-basis review. And in any event, Transpacific‘s evidence does not justify altering our conclusion. Nearly all of Transpacific‘s extrinsic evidence consists of statements by the President that are too “remote in time and made in unrelated contexts” to “qualify as ‘contemporary statements’ probative of the decision at issue.” Dep‘t of Homeland Sec. v. Regents of the Univ. of California, 140 S. Ct. 1891, 1916 (2020) (plurality opinion) (quoting Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 268 (1977)). And the statement from the President on the same day as Proclamation 9772 does not reflect animus toward U.S. importers of Turkish steel, let alone negate the reasonably conceivable state of facts establishing a rational basis for the policy. See J.A. 499.
III
We reverse the Trade Court‘s decision and remand the case for entry of judgment against Transpacific. On remand, the Trade Court may determine whether that judgment should include dismissal of the claim against the President.
The parties shall bear their own costs.
REVERSED AND REMANDED
TRANSPACIFIC STEEL LLC, BORUSAN MANNESMANN BORU SANAYI VE TICARET A.S., BORUSAN MANNESMANN PIPE U.S. INC., THE JORDAN INTERNATIONAL COMPANY, Plaintiffs-Appellees v. UNITED STATES, JOSEPH R. BIDEN, JR., IN HIS OFFICIAL CAPACITY AS PRESIDENT OF THE UNITED STATES, UNITED STATES CUSTOMS AND BORDER PROTECTION, TROY MILLER, IN HIS OFFICIAL CAPACITY AS SENIOR OFFICIAL PERFORMING THE DUTIES OF THE COMMISSIONER FOR UNITED STATES CUSTOMS AND BORDER PROTECTION, DEPARTMENT OF COMMERCE, GINA RAIMONDO, IN HER OFFICIAL CAPACITY AS SECRETARY OF COMMERCE, Defendants-Appellants
2020-2157
United States Court of Appeals for the Federal Circuit
Filed: 07/13/2021
REYNA, Circuit Judge dissenting.
John Adams warned that “Power must never be trusted without a Check.”1 The expression of caution from our Founding Father is as much true today as it was at the founding of our nation. It also has exact application to this appeal. The essential question posed by this appeal is whether Congress enacted
The U.S. Court of International Trade, in a special three judge panel,2 determined that President Trump exceeded his statutory authority by adjusting tariffs imposed for national security reasons outside the time limits specified in
INTRODUCTION
My dissent is based on three grounds. First, the majority overlooks the context of
DISCUSSION
I
Congress‘s Authority Over Trade
The majority decision is based on a rationale that ignores the history of the U.S. trade law framework. It ignores that significant experience that Congress has in enacting delegation statutes, experience that stretches back to the founding of this country. In vitiating the express limits imposed on a narrow delegation of Congressional authority, the majority tears at the legal framework established by the Founders and Congress and imperils the very relief sought to be provided under
The Constitution vests in Congress sole power over the Tariff when it confers on Congress the power “To lay and collect Taxes, Duties, Imposts, and Excises” and “To regulate Commerce with foreign Nations.”
Over time, Congress has delegated to the Executive Branch authority to act on certain matters involving tariffs. For example, Congress has delegated to the Executive Branch authority to negotiate tariff reductions via multilateral trade agreements, such as the General Agreement on Tariffs and Trade (“GATT“) (reciprocal and non-reciprocal tariff reduction among the contracting members); regional trade agreements, such as the North American Free Trade Agreement (“NAFTA“) (eliminating tariffs on almost 100% of the trade among the parties to the agreement); and non-reciprocal programs, such as the Generalized System of Preferences (“GSP“) (programs designed to assist the economic development of lesser developed economies).4 But in each instance, Congress has maintained oversight by, for example, reviewing negotiating objectives and holding hearings. Congress has also held the ultimate authority to approve the results of the Executive Branch‘s negotiations.5 Under our constitutional scheme, any statutory limitations placed by Congress on a delegation of authority to the President bind him to act within those limits, and any action taken outside such limits exceeds such authority and is therefore illegal. That precisely is what happened in this case.
Section 232
Section 232 is a trade relief statute, a narrow delegation of authority by Congress to the President to take trade-related action when necessary to safeguard national security. See
The
involving the production, commercialization, and importation of the good subject to investigation. Factors examined often include U.S. shortages; U.S. and foreign production; excess and underutilized capacity; U.S. shipments and domestic consumption; plant closures; prices; and worker and manufacturing dislocations caused by bilateral or multilateral trade arrangements.6
No more than 270 days after the investigation is initiated, the Secretary of Commerce must submit a report to the President on the effects of the importation at issue, whether a threat to national security exists, and the recommended course of action, if any. Id.
The President is then required to “implement that action by no later than the date that is 15 days after the day on which the President determines to take action.” Id.
Because the procedures set forth in
is no. Congress has placed time limits upon the President that are plain, clear, and unmistakable, and has mandated that, if the President decides to act, he must do so “by no later than” those time limits.
II
The plain language and legislative history of
The Plain Language
Statutory interpretation begins with the language of the statute. United States v. Ron Pair Enters., Inc., 489 U.S. 235, 241 (1989). If the language is plain, then the inquiry ends, and “the sole function of the courts is to enforce it according to its terms.” Id. (citation and quotation omitted). Here,
The majority decides that “shall” means “may.” Maj. Op. at 23–24. I discern no sound reason for that interpretation permitting the President to modify the action indefinitely outside the statutory time limits. The word “shall” in a statute “normally creates an obligation impervious to judicial discretion.” Lexecon Inc. v. Milberg Weiss Bershad Hynes & Lerach, 523 U.S. 26, 35 (1998); see also Kingdomware Techs., Inc. v. United States, 136 S. Ct. 1969, 1977 (2016) (“Unlike the word ‘may,’ which implies discretion, the word ‘shall’ usually connotes a requirement.“); United States v. Rodgers, 461 U.S. 677, 706 (1983). Applying the normal legal meaning of “shall,”
The majority also interprets the word “action” to encompass a “plan of action” that may be modified and completed long after the statutory time limits expire. Maj. Op. at 25–26. This reading is unavailing. Section 232 repeatedly refers to taking an action, and plans cannot be taken. Section 232‘s use of the word “implement” does not change this conclusion: a tariff can be implemented, but that does not make that tariff a plan of action or series of actions. Further, Congress chose the singular form of “action” even though, there is no question, it was capable of selecting the plural.
The majority‘s reading should also be rejected because it clashes with several other aspects of
Maine, 140 S. Ct. at 1323 (citations and quotations omitted). First,
Section 232 also permits the President to take “such other actions as the President deems necessary” if the President initially selected the action of negotiation and the ensuing negotiations are unfruitful.
The majority also reduces the statutory deadlines themselves to mere optional suggestions. The majority reasons that
Lastly, even assuming that an “action” may encompass a “plan of action,” it does not follow that
Because
Legislative History
The legislative history of
In 1988, “frustrated” with the status quo, id., Congress enacted requirements that the President must set a duration for his action, carry out that action, and report to Congress, all within specific deadlines. Specifically, Congress amended
The 1988 amendments were a “clear indication from Congress of a change in policy” that overcomes the implication of continuity, United States v. O‘Brien, 560 U.S. 218, 231 (2010) (citation and quotation omitted), and the majority offers no support for its contention that the changes were only stylistic in nature, Maj. Op. at 41. Congress‘s removal of the language, “for such time[] as he deems necessary,” indicates that the President may no longer act for such time as he deems necessary following the 1988 amendments. Indeed, “[f]ew principles of statutory construction are more compelling than the proposition that Congress does not intend sub silentio to enact statutory language that it has earlier discarded.” Sale v. Haitian Centers Council, Inc., 509 U.S. 155, 168 n.16 (1993) (citations and quotations
Congress‘s approach in 1988 wisely ensured that the President acted with a current report and thus warded off continuing modifications based on stale information or based on a changed purpose, such as a purpose or reasons not relating to the subject importation‘s effect on national security. I agree with the majority that the purpose of the 1988 amendments was to produce more action, not less. Maj. Op. at 41. But that does not negate that Congress has clearly required the President to act within the specified time limits. See also H.R. REP. NO. 99-581, pt. 1, at 135 (1986) (“The Committee believes that if the national security is being affected or threatened, this should be determined and acted upon as quickly as possible.“). Although the majority contends that staleness concerns are not present here given that President Trump acted only a few months after the time limits under
CONCLUSION
The Constitution vests Congress with sole power over the Tariff.