Two cases being argued in January at the Federal Circuit attracted amicus brief. One of those cases is PrimeSource Building Products, Inc. v. United States, a trade case. In it, PrimeSource Building Products claims the President did not act within his statutory authority by extending national security tariffs he had previously applied to steel articles to include derivatives of those articles. Specifically, in this case, the Federal Circuit will review a determination by the Court of International Trade that the President exceeded his authority by issuing Proclamation 9980 outside the time limitations contained in 19 U.S.C. § 1862(c)(1). This is our argument preview.
In its opening brief, the United States argues the Federal Circuit’s prior judgment in another case “controls and compels reversal” because in that case the court “reversed a judgment premised on the same alleged statutory violation at issue here.” The government highlighted, moreover, that in the prior case the Federal Circuit “left for another day the question whether later presidential action might run contrary to the national security purpose of the statute, particularly if, for example, the President was acting upon stale information.” The government further argued that “[t]he President’s exercise of judgment and fact-finding are, of course, not subject to judicial review.” The government maintained that “the nexus between the President’s measure on derivative steel products and the original threat of impairment to national security is clear on the face of Proclamation 9980.” This is because “[t]he President was advised that increased imports of derivative products were undermining the effectiveness of the original measures,” and “[t]he President adjusted derivative imports to ensure the originally-stated capacity utilization goals would be met and to thwart the possibility that an influx of imports of steel and aluminum derivative products would undermine those goals.”
PrimeSource Building Products in its response brief first argues “[t]he President committed a significant procedural violation and acted outside the authority delegated to him by Congress.” In particular, the plaintiff argues this occurred “when he imposed tariffs on steel derivative products outside of the time constraints for him to act after receiving the Secretary’s report finding that imports threatened the national security of the United States.” Second, PrimeSource Building Products contends “[t]his case fits within the staleness” and other exceptions identified by the Federal Circuit in a prior case. Further, it argues, “[b]oth legislative history and separation-of-powers concerns mandate that there is an outer boundary on the authority delegated to the President by Congress to act outside of the [relevant] time constraints.”
The United States, in its reply brief, reasserted the arguments made in its opening brief. For example, it maintained that the Federal Circuit’s “intervening decision . . . requires reversal of the trial court’s judgment.” Moreover, it argues, “any sensible assessment of the issue establishes that Proclamation 9980 is firmly rooted in its originating action, Proclamation 9705.” Thus, says the government, “[i]t is on its face . . . a proper adjustment to the ‘continuing course of action’ laid out in” the original proclamation . . . , thus making it a valid and lawful exercise of the President’s power.”
The American Steel Nail Coalition filed an amicus brief in favor of the United States. It argues “Proclamation 9980 has had a positive impact on the domestic steel nails industry, and thus, on American steel production and capacity utilization generally.” Moreover, it contended, “Proclamation 9980 is not subject to judicial review because Section 232 [of the Trade Expansion Act of 1962, as amended, 19
U.S.C. § 1862,] commits actions to prevent threats to national security, including circumvention of such actions, to the discretion of the President.”
This case will be argued on Tuesday, January 10. We will report on any developments.