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The United States Court of Appeals for the Federal Circuit is now open and in session.

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God save the United States and this honorable court.

[00:00:11] Speaker 04:
Good morning.

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We are ready for oral arguments in today's case.

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We have only one case scheduled for oral arguments today.

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I happen to hear a lot of feedback at the moment.

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Perhaps people can meet their devices when they're not using them.

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I now call the first case.

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This is Trans-Pacific Steel versus the United States 20-2157.

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Councilor Hogan, are you ready to argue?

[00:00:46] Speaker 00:
I am, Your Honor.

[00:00:48] Speaker 04:
Okay.

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And remind me how much time you reserve for rebuttal.

[00:00:52] Speaker 00:
I have asked for four minutes, Your Honor.

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Okay.

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All right.

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You may be good.

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Thank you.

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Good morning, and may it please the court.

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The president acted constitutionally and lawfully by modifying the import restriction on steel articles from Turkey.

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In setting aside Proclamation 9772 as unlawful, the Court of International Trade committed two critical errors, both of which require reversal.

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First, the trial court ignored settled congressional meaning that action to adjust imports is a continuing authority

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and includes modifying previously taken action.

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We know this from the legislative history going back as early as 1955.

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And prior presidents exercised their 232 authority as a continuing authority.

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Counselor, is it your argument that the president has no limits that are imposed by any provisions in 232?

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Absolutely not, your honor.

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There are limits that are set forth in the statute.

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I think most notably, the president cannot act first without an investigation by the secretary.

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And of course, the president cannot take any action to adjust imports if he does not concur in the finding of the secretary.

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What about the time limits?

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What about the time limits that are in?

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Yes, the time frames are for concurrence and implementation.

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And I should note that in this case, the president did act.

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within those timeframes to concur with the Secretary's finding and to declare or proclaim the course of action that the President is going to take.

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But that's a separate question from the question of whether once the President has taken timely action, as he did here, the authority that has been delegated by Congress includes the authority to make adjustments to ensure that the national security objective of the statute can be met.

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And in this situation, the addition of those timeframes in 1988, Congress was not acting against a blank slate.

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It was carrying forward that same understanding and that same meaning that action to adjust imports is a continuing authority.

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And while... Ms.

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Hogan, this is Judge Gerardo.

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Can I ask you?

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Am I right that in the briefing in this case, there was no citation of the 1975 opinion of Attorney General Saxby, which has recently been relied on in one of the opinions in the CIT, in the prime source case, which seems to say things that have some bearing on this question of whether such action means a continuing course of action.

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Can you just address

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That opinion, is it relevant?

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If it's relevant, why haven't we seen it?

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And so on.

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Yes, Your Honor.

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I think it is relevant in that we believe that it correctly identifies how the statute should be interpreted.

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I think we have cited a lot of the legislative history and, again, the actual presidential principles that we have relied upon in our brief.

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So that we try to decide.

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Yes.

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This is Judge Chen.

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I'm not familiar with this 1975 opinion.

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Do you know the name of the trade court opinion that refers to this 1975 opinion?

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Yes, Your Honor.

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This was a recent decision by the Court of International Trade called Prime Source Building Products.

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And in that case, the dissenting opinion, the dissenting judge in that case.

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relied upon that, cited that opinion.

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And we did not cite it in our brief.

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We would certainly be happy to provide it to the court if that would be of use.

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I think that our, again, I think our position and our interpretation of statute is based on, it follows much the same in that opinion.

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we're relying upon the principles of congressional acquiescence, principles of settled legislative meaning.

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So I apologize to the court that we did not cite that specifically, but we thought that the sort of the original principles might be more directly relevant to this court's inquiry.

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Counselor, this is Judge Raina.

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It seems to me that you were arguing just before you started receiving additional questions that the President can modify his actions without getting a new report or getting additional data from the ITC.

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Is that correct?

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Yes, we are saying that the President does not need to begin a new investigation by the Secretary of Commerce.

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before he can adjust action that has been previously taken as he did in Proclamation 97?

[00:06:07] Speaker 04:
Well, if we look at the framework, the statutory framework that we're dealing with here that does contain some temporal limitations, it seems to me that that framework is based on ensuring that the President is taking action on recent data, a recent report.

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If the president could take action without a new report or an updated report, then how can we share, how do we know or how can we be sure that he's acting on updated information?

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Well, first I would say that the statute, the formal investigation by the secretary is not the only way in which a president can receive advice and information from his advisors.

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And particularly in this case, in Proclamation 9772, the president did say that he had received information from the secretary.

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And so nothing in the statute precludes the president from getting those updates that we might expect the president to have.

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But the question about whether the president's... And I assume those updates or the ability to obtain an update is based on

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Congress's view that the President should be acting on recent information or updated information?

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I think it's safe to assume that Congress wants the President to act on the best information that the President has, and I think that's in part the reason for the delegation, that it's the President and his advisors who are going to have the quickest

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most up-to-date access to information relevant to national security.

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And that's why there's deadlines within the statute, correct?

[00:08:06] Speaker 00:
Well, I would say that the deadlines are not so much to ensure that the president is acting on fresh information, but to ensure that once a threat of impairment to national security has been identified, that there's prompt action.

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So, you know, there's a deadline for the secretary to complete that investigation, and then there are deadlines, time limits for the president to determine whether he concurs and to implement that action.

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But there's nothing in the statute specifically that... When you say prompt action, how do we know action is prompt?

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Well, we know that the prompt action that Congress was most concerned about,

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was the President's concurrence and the President starting to do something.

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And we can look at the historical evidence of the machine tools case and the perception that Congress had that President Reagan was sitting on a report, not making a decision, not taking any action.

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It's very clear in the trial court did not dispute that what Congress was most concerned about in 1988 was

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delay in taking some action.

[00:09:24] Speaker 04:
But Congress did not... That delay, the guard against delay is brought about because there's a need to ensure that this type of action, this unilateral raising of tariffs, is done on an informed basis, wouldn't you say?

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I don't think we dispute that Congress intended that the President act on the best information that he has.

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And that's in part why the delegation has been given to the President rather than reserved.

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So how do we know whether the President is acting on best information if after making the original concurrence, then we

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we impose or there's no imposition on the president as to seeking additional information or seeking an updated report if additional action wants to be taken.

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Respectfully, that's not the court's role.

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It would be Congress's role.

[00:10:37] Speaker 04:
It seems to me that your argument defeats in part the purpose of the statute.

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And that's for the president to act on updated information.

[00:10:49] Speaker 00:
Well, again, I think we would disagree that the statute talks about updated information or that that was even driving the amendments in 1988.

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I think we certainly don't... Ms.

[00:11:02] Speaker 03:
Hogan?

[00:11:03] Speaker 03:
Ms.

[00:11:03] Speaker 03:
Hogan, this is Joe Toretto.

[00:11:05] Speaker 03:
Just on that specific thing, is there material, forgive me if I just don't remember it, from the, let's just call it legislative history broadly considered,

[00:11:18] Speaker 03:
that indicates that at least one, maybe even the dominant reason for the 1988 imposition of the time limits was to avoid action on stale information or was it, I guess the things that I guess I'm remembering from your point of view is that the concern was that without a deadline,

[00:11:44] Speaker 03:
the president could simply not take any action at all, and that was problematic.

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But are there materials that have been cited to us or that you're aware of in which portions of Congress committee members, members of Congress, whatever, say we're concerned about the staleness of information if the president waits too long after getting the secretary's report

[00:12:13] Speaker 00:
I certainly, I don't recall that, Your Honor.

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What I would say is that the concerns about staleness are addressed by the fact that the president must concur within 90 days and implement actions within 15 days.

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What would be the practical negative consequence of enforcing the deadline by requiring a new

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secretary report following the procedures of consultation for the President to impose additional impediments to importation after the times have run.

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Why is it not, oh, well, we may as well just

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insist on the report because it's not a big deal and that follows the statute better.

[00:13:15] Speaker 00:
Well, we disagree that it's what is required.

[00:13:17] Speaker 00:
I understand that.

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In terms of the practical consequence, Your Honor, it's a consequence to national security.

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It's not at a mere administrative inconvenience.

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And it is in some sense repeating the same work twice before... Well, unless the world has changed.

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unless the world has changed.

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And I would say that the president always has the right to ask the secretary for a new report.

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We see that President Nixon did that after 20 years of operating under the same original proclamation on petroleum products.

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But it's not what is required from the statute.

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And it would hinder the president's ability to be able to act quickly to address changing circumstances.

[00:14:09] Speaker 03:
Can I ask a change topic and ask this question?

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Is 9772 justified under, what's it called, C3A, little 2I, big 2I?

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Namely, that's the provision that says if the president actually negotiates an agreement with a particular country and among other things,

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or among other possibilities, finds that it is ineffective in averting the threat.

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The president shall take other action.

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Could 9772 be characterized as when the president says in the proclamation, we still have too many imports,

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capacity utilization of domestic or utilization of domestic capacity is still too low for a sustainable steel industry.

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And that is after the South Korea and Brazil agreements from a few months before.

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Is that a determination in substance that the agreements that have been reached with South Korea and Brazil

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are ineffective in averting the threat, or I say ineffective in eliminating the threat, I think is the statutory language.

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And therefore, this particular action is covered by the language of that provision.

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I'm not sure you've made that argument, but I'd like to hear your thoughts about it.

[00:15:53] Speaker 00:
Yes, you're correct that we did not

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make that argument because we think that the inherent authority is found in C1.

[00:16:01] Speaker 00:
You may continue.

[00:16:09] Speaker 00:
Thank you.

[00:16:09] Speaker 00:
I would say that we have not read the statute to that C3 would be authority for what the president did here.

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but perhaps I can give it a little bit more thought.

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But I would say that that's not the interpretation that we are relying upon here.

[00:16:33] Speaker 04:
When the president modifies the original remedy and increases tariffs dramatically, let's say, is it because the president in his discretion has determined that the national security interests has

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has increased as well.

[00:16:52] Speaker 04:
That risk to national security has increased as well.

[00:16:58] Speaker 00:
It's possible that that could be a reason.

[00:17:04] Speaker 00:
I mean, for example, when President Reagan essentially embargoed petroleum from Libya in 1982, there was a specific finding that trade with Libya would be inimical to our national security beyond the

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threat of impairment, generally, globally, with respect to petroleum products.

[00:17:25] Speaker 04:
In this particular case... That's a good example.

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Suppose that the President raises the tariffs and doesn't reveal why he has raised the tariffs.

[00:17:41] Speaker 04:
But he did it not because of an increase in the risk of national security, but because of trade dislocations that have been caused by the increase in the tariffs, say movement to labor, or even the sale of oil.

[00:17:54] Speaker 04:
Now the sale of oil is now the basis.

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Dislocation of sales of oil is now the basis for the President's determination to raise the tariffs additionally, not national security.

[00:18:06] Speaker 04:
Can the President do that?

[00:18:11] Speaker 00:
The action to adjust the imports, what action the President takes is entirely within his discretion.

[00:18:18] Speaker 00:
Once he's made that concurrence, that there is a threat of impairment to national security.

[00:18:24] Speaker 00:
So long as the President continues to believe that there's a threat of impairment to the national security, then the statute delegates a great amount of discretion to the President to determine how to... Okay, so whatever decision the President makes, it's got to be based on some

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form of impairment to national security?

[00:18:47] Speaker 00:
Yes.

[00:18:47] Speaker 04:
I would say both procedurally, that there has to be a concurrent, so there has to be an affirmative finding by the president, and second, that subsection E of the... So if that's the case, then can we assume that terrorists are increased, that they're increased because there's also a commensurate increase in risk to national security that must be answered?

[00:19:08] Speaker 00:
No, I don't think it's necessary for that assumption.

[00:19:11] Speaker 00:
I think that what the president and what the president did here is to say that the measures that I've selected to address that threat of impairment are ineffective.

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And so I need to make changes so that there will no longer be a threat of impairment to national security.

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In other words, so that I can achieve the statutory objective.

[00:19:29] Speaker 00:
I would say that the difference is that the sort of finding that there is a threat of impairment to the national security, which

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remains in place until the president determines otherwise.

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And then separately, what is the remedy that in the president's judgment is necessary to combat that threat?

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And that remedy may change.

[00:19:53] Speaker 02:
Ms.

[00:19:53] Speaker 02:
Hogan, this is Judge Chen.

[00:19:55] Speaker 02:
I'm interested in trying to understand better your conception of the president's authority under this statute and trying to figure out how far does that authority go

[00:20:07] Speaker 02:
It sounds like you're contending that once the Commerce Secretary in consultation with the Defense Secretary does an investigation and issues a report that there is a threat to national security and articulates a specific rationale for what that threat to national security is, and here it was the domestic

[00:20:36] Speaker 02:
steel plants being underutilized and not being utilized at a high enough level for US defense needs.

[00:20:48] Speaker 02:
And then the president acts and agrees under national security, the president needs to take action.

[00:20:58] Speaker 02:
And your position here is that the president has the right under the statute

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can take continued action, is that continued action, does it need to be tethered to not only national security, but the actual rationale that was articulated in the commerce secretary's report?

[00:21:21] Speaker 02:
Or in your view, is it that once the president agrees that there's a national security issue, then the president really has basically unfettered

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discretion in the name of national security to do whatever he wants, whenever he wants, and just invoke the concept of national security and say, well, now I'm moving the rates up.

[00:21:48] Speaker 02:
Now I'm moving them down.

[00:21:50] Speaker 02:
Now I'm switching over to quotas here, there, everywhere, all under the broad umbrella of national security.

[00:21:58] Speaker 02:
I'm not sure if my question is clear, but do you understand where I'm trying to go?

[00:22:03] Speaker 02:
I'm trying to figure out to what extent is the president's authority has some constraints and guardrails put in place given the preconditions articulated in the secretary's report on why there's a national security problem.

[00:22:25] Speaker 00:
So the president's discretion, while very broad, it is not untethered.

[00:22:30] Speaker 00:
It is tethered to

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the action that the statute charges the president with taking, which is adjusting imports.

[00:22:37] Speaker 00:
So the president is always limited to the articles or their derivatives that were the subject of the secretary's investigation, and the president has to act to adjust those imports.

[00:22:49] Speaker 00:
So he can't take any action.

[00:22:52] Speaker 00:
There has to be some connection to the articles that were the subject of the investigation.

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or their derivatives.

[00:23:01] Speaker 02:
I guess here's my question.

[00:23:02] Speaker 02:
Here's a hypothetical.

[00:23:04] Speaker 02:
Here it appears that the president took a second action because he concluded that the expected increase in domestic steel production under the first action didn't really happen.

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And so

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we as a country were not yet at that 80% utilization rate.

[00:23:31] Speaker 02:
So he said, OK, well, then we need to reduce imports further, and we're going to do that by increasing the tariffs on the imports coming in from Turkey.

[00:23:42] Speaker 02:
Fine.

[00:23:43] Speaker 02:
But what if, and your theory is there's a connection there between that second proclamation and the secretary's report.

[00:23:53] Speaker 02:
But what if the president instead had said,

[00:23:56] Speaker 02:
Well, I've decided now in August of 2018 that I want domestic steel utilization to be up to 100% because I think, as president, that's what best secures national security.

[00:24:12] Speaker 02:
So under that altered different rationale than the one that was given to me by the Commerce Secretary, I'm going to yank up tariffs on Turkey and maybe some other countries.

[00:24:27] Speaker 02:
In your view, would that be possible under the statute or, for example, would that be a non-delegation doctrine problem?

[00:24:43] Speaker 00:
I would say that, I mean, the president is not bound by the factual findings of the secretary.

[00:24:48] Speaker 00:
It's whether the, in terms of, you know, what's the best capacity utilization that would no longer threaten to impair

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national security might be.

[00:24:58] Speaker 00:
So I wouldn't want to suggest that there might be changing facts and circumstances that might alter how the president, I think that still gets to the question of the remedy that the president is selecting to address the national security impairment.

[00:25:19] Speaker 00:
Impairment is still caused by the quantity and circumstances of imports.

[00:25:25] Speaker 00:
sort of that effect is on the weakening of our internal economy.

[00:25:31] Speaker 00:
And so I wouldn't want to say that that would necessarily be precluded under the statute because I think that the rationale would still be the same.

[00:25:44] Speaker 02:
Well, what I'm trying to do in my hypothetical is create a different rationale.

[00:25:48] Speaker 02:
I mean, they're both invoking the notion of national security.

[00:25:52] Speaker 02:
I understand that.

[00:25:52] Speaker 02:
But it's a different rationale, a different

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understanding of what it would take in terms of protecting national security.

[00:26:01] Speaker 02:
And now the president is electing to act on a different rationale than the one that was articulated and earlier agreed upon with the secretary of commerce.

[00:26:14] Speaker 00:
Right.

[00:26:14] Speaker 00:
So I guess I would say that the secretary's role is to investigate whether there is a threat of impairments to national security.

[00:26:23] Speaker 00:
And the president has to concur or not concur.

[00:26:27] Speaker 00:
And there's no specific instructions in the statute about how descriptive the president must be in what he's concurring to other than the ultimate finding.

[00:26:38] Speaker 02:
So then if I understand your position then, as soon as there's a concurrence, a meeting of the minds between the president and the secretary of commerce, then the president basically has an open playing field

[00:26:52] Speaker 02:
any date after that to, you know, and successive presidents can, in the name of national security, again, for a basis that's perhaps different than, very different than, qualitatively than what was the initial basis for finding a national security threat, take many other actions in the future

[00:27:19] Speaker 02:
just because of this initial secretary report that was originally based on a different rationale for national security.

[00:27:26] Speaker 02:
Is that how I'm... Is that what your position is?

[00:27:33] Speaker 00:
I wouldn't say it exactly like that, Your Honor.

[00:27:35] Speaker 01:
Okay, you wouldn't say it like that, but, I mean, is the effect the same?

[00:27:39] Speaker 00:
Yeah, I think the effect is the same.

[00:27:41] Speaker 00:
Once the President has concurred with the finding, with the ultimate finding that there's a threat of impairment to national security caused by

[00:27:49] Speaker 00:
either the quantity or circumstances of influence.

[00:27:51] Speaker 02:
Then from that point forward, he has a tool that he can use whenever he wants to use.

[00:27:58] Speaker 02:
For whatever reason, when I say reason, I mean specific rationale, as long as he can say that it's connected to national security.

[00:28:12] Speaker 00:
So long as the reason is tied to the statutory objective, and it's

[00:28:19] Speaker 00:
you know, an action to adjust imports, which is the, you know, a limiting principle of the statute.

[00:28:25] Speaker 02:
Um, and, and yes, and I think that that's what Congress... Right, but the statutory objective to you is just national security.

[00:28:32] Speaker 00:
Well, I would say the statutory objective is to avert the threat of impairment to national security caused by imports of articles.

[00:28:41] Speaker 00:
So it's, it's a little bit

[00:28:43] Speaker 04:
How do you know that the national security threat is caused by a rise in imports or by certain imports?

[00:28:54] Speaker 04:
When the president concurs with the report of the secretary, the president isn't just saying, yes, I agree.

[00:29:01] Speaker 04:
The president is saying, yes, I agree to the data and the indicators included in the report that provide the basis

[00:29:12] Speaker 04:
for me to say that I need to increase tariffs.

[00:29:16] Speaker 04:
And it also provides me, the president, the basis by the levels at which to increase tariffs.

[00:29:24] Speaker 04:
If that's the case and the president concurs with that report in that manner, with the data in the report, then how is it that the president can later just increase at its own discretion and at its own will, make a dramatic increase in tariffs

[00:29:42] Speaker 04:
without any type of basis or anchor to the trade data in the matter?

[00:29:53] Speaker 00:
I would go back to the statute which does not require the President to concur or agree with any of the data or any of the recommendations for action that the Secretary puts forward in the report.

[00:30:09] Speaker 00:
What subsection C1A1 requires the president to do is to determine whether he concurs with the finding of the secretary and that finding is a finding that the article is being imported into the United States in such quantities or under such circumstances as to threaten to impair national security.

[00:30:29] Speaker 00:
So we would not say that the president is required to accept the data that the secretary provides or the recommendation.

[00:30:38] Speaker 04:
The finding is based on the data.

[00:30:42] Speaker 04:
In trade law, data is the evidence that you're dealing with.

[00:30:49] Speaker 04:
It provides the basis by which agencies make informed decisions.

[00:30:57] Speaker 04:
And that's the purpose of a 232 report, isn't it?

[00:31:00] Speaker 04:
To marshal together the evidence, the data, the trade data that exists

[00:31:07] Speaker 04:
and then to evaluate that trade data and then to make a recommendation to the president.

[00:31:11] Speaker 04:
If the president accepts that recommendation, then the president's accepting the basis of that recommendation.

[00:31:21] Speaker 04:
Is that true?

[00:31:26] Speaker 00:
I think respectfully that no, it would not be the case that the president is required to accept or be limited by the data that is in

[00:31:36] Speaker 00:
the Secretary's report of investigation.

[00:31:40] Speaker 00:
It certainly informs the President.

[00:31:41] Speaker 04:
It certainly... Then there's no purpose for the whole 232 exercise.

[00:31:48] Speaker 00:
We respectfully disagree, Your Honor.

[00:31:50] Speaker 00:
The Secretary's investigation is that consultative role to gather that data, to make analysis, to make reasonings, to consult with the Secretary of Defense,

[00:32:06] Speaker 00:
to involve the public if it's appropriate, and to provide the president with that information.

[00:32:14] Speaker 00:
That is certainly informs the president, but the president is not limited by it in any way.

[00:32:20] Speaker 00:
When the president is collecting.

[00:32:22] Speaker 04:
That's correct.

[00:32:23] Speaker 04:
The president is not limited, and the president can make a left turn instead of turning right.

[00:32:27] Speaker 04:
If the secretary says turn right, the president says, I agree with everything you say, but I'm going to turn left.

[00:32:34] Speaker 04:
But later on,

[00:32:37] Speaker 04:
Five years down the road, can the President say, I'm going to make a U-turn now?

[00:32:47] Speaker 04:
Can the President say, I'm going to go further or stop?

[00:32:56] Speaker 00:
Well, in terms of the remedy that the President is selecting,

[00:33:01] Speaker 00:
Yes, Congress intended that the President have continuing authority to modify, to terminate, to reduce, or to continue to adjust.

[00:33:10] Speaker 04:
But didn't Congress eliminate the modification that you're talking about in the 1988 amendment?

[00:33:18] Speaker 00:
No, we respectfully disagree that it did anything other than.

[00:33:22] Speaker 04:
Well, the statute at that time said the President shall take such action and for such time as he deems necessary.

[00:33:30] Speaker 04:
That was changed.

[00:33:33] Speaker 00:
That was changed.

[00:33:35] Speaker 04:
Yeah, so now the president cannot take a left turn five years down the road, correct?

[00:33:44] Speaker 04:
I think that... The statute was changed precisely to eliminate the type of discretion you're saying that the president has to take such action for such time as he deems necessary.

[00:33:56] Speaker 04:
That's what you're arguing.

[00:33:58] Speaker 04:
But that's not what the law says anymore.

[00:34:00] Speaker 04:
That was changed.

[00:34:00] Speaker 04:
Congress changed that.

[00:34:04] Speaker 00:
Congress did change it.

[00:34:05] Speaker 00:
And if the court, I know that I'm well over my time, but if the court would permit me to walk through that language, your honor is absolutely correct.

[00:34:15] Speaker 00:
Prior to 1988, the statute permitted the president to take such action and for such time.

[00:34:23] Speaker 00:
In the 1988 amendments, what the president is required to do is to determine the nature and the duration of the action that he deems necessary.

[00:34:34] Speaker 00:
We believe that that nature and duration language is the, is change in terminology without a difference.

[00:34:43] Speaker 00:
That for such time and such action and for such time is now the function, the equivalent now is the

[00:34:52] Speaker 00:
President's determination to identify the nature and the duration of the action.

[00:34:58] Speaker 04:
Chancellor, you've expressed a new rule of statutory interpretation, a change in terminology that makes no difference.

[00:35:06] Speaker 04:
I certainly would not be able to apply that in my line of business.

[00:35:13] Speaker 02:
Ms.

[00:35:15] Speaker 02:
Hogan, just so I understand nature and duration of the action,

[00:35:21] Speaker 02:
If the original proclamation, 9705, hadn't said anything about ordering the Commerce Secretary to continue monitoring steel imports and in case the President wants to make future adjustments, let's say that was deleted from this proclamation.

[00:35:46] Speaker 02:
Is it your view that

[00:35:49] Speaker 02:
Despite that silence in the original proclamation, the president still had the authority to continue to make future adjustments if and when he was apprised of, in his view, the need for further adjustments?

[00:36:08] Speaker 00:
Yes.

[00:36:09] Speaker 00:
And I think with, particularly with respect to that sort of nature and duration language, I mean the nature of the,

[00:36:17] Speaker 00:
measure that the president selected here was a strategy, right?

[00:36:23] Speaker 00:
One that primarily was tariffs, which is the action that we're talking about here, but also included negotiations with other countries and the monitoring that the court has omitted in the court's hypothetical.

[00:36:38] Speaker 00:
What has not changed in the statute is the direction to the court, the direction to the president's

[00:36:46] Speaker 00:
to take action to adjust imports.

[00:36:50] Speaker 02:
That has- So again, I'm just trying to understand, well, then where would the duration component come into play?

[00:36:58] Speaker 02:
Because I guess your position is duration encompasses an indefinite time period, an unspoken indefinite time period.

[00:37:10] Speaker 02:
Is that fair to say?

[00:37:14] Speaker 00:
Yes, Your Honor.

[00:37:14] Speaker 00:
The duration that the President proclaimed in 9705 was essentially that the import restrictions would remain in place until the President determines that they're no longer necessary.

[00:37:26] Speaker 00:
And I don't think there's any evidence that the Congress intended that the President, for example, say these tariffs will only be in place for one year.

[00:37:38] Speaker 00:
Because we don't think that that runs, one, contrary to sort of the predictive judgment that Congress has delegated to the president.

[00:37:46] Speaker 00:
And then just as a practical matter in terms of national security, it doesn't make any sense to proclaim that ahead of time to foreign countries who are equity.

[00:37:59] Speaker 02:
So I guess, again, in your view, although this proclamation was issued in 2018, a president

[00:38:07] Speaker 02:
2045 could refer back to this proclamation and say, well, I want to do the following increases and decreases to imports from the following countries by applying this new set of tariffs to those country products.

[00:38:29] Speaker 02:
Under national security, would that be okay?

[00:38:33] Speaker 00:
The best evidence that we have that that is okay is the congressional acquiescence to the operation of the petroleum import program over decades where Congress, even though it made, it acquiesced to presidents exercising that authority from a proclamation from 1959 all the way to 1982.

[00:38:58] Speaker 00:
And Congress can always

[00:39:00] Speaker 00:
pull back that authority.

[00:39:02] Speaker 00:
I think another point to make here is that, one, Congress knows how to put time limits on the president.

[00:39:09] Speaker 00:
We can see that in examples like Section 201 of the Trade Act, which limits the president.

[00:39:15] Speaker 02:
Ms.

[00:39:15] Speaker 02:
Hogan, I understand your view is that this is a very broad authority, and I understand your rationale for why that is so.

[00:39:24] Speaker 02:
But can I take you back to Algonquin and the non-delegation doctrine?

[00:39:31] Speaker 02:
And the concern there, well, you know, who knows what the state of play is with Algonquin today.

[00:39:40] Speaker 02:
But assuming that it's right, nevertheless, Algonquin's rationale was really about some kind of intelligible principle to which the president is directed to conform.

[00:39:57] Speaker 02:
And in Algonquin, the court said, well, it was that

[00:40:02] Speaker 02:
initial secretary report investigation and findings that was an important critical precondition to any presidential action.

[00:40:15] Speaker 02:
So I guess my concern with your position is that it seems to be the government's position that the president

[00:40:30] Speaker 02:
under this authority, under this statute, can take lots of different actions in the name of national security that doesn't necessarily conform to the articulated reasons the secretary had initially made an investigation and findings on in the name of national security.

[00:40:54] Speaker 02:
So can you explain why everything would still be

[00:41:00] Speaker 02:
constitutionally acceptable in view of a non-delegation doctrine?

[00:41:08] Speaker 00:
Well, the Algonquin Court found that there were no non-delegation concerns whatsoever with Section 232, or the earlier iteration of Section 232, which notably... I understand that.

[00:41:20] Speaker 02:
I'm talking about a hypothetical that you are embracing, which is the idea that the president really has

[00:41:28] Speaker 02:
this power, this very broad power to engage in all kinds of subsequent actions, entire litany of actions that go far into the future that are really, although in the name of national security, completely untethered to the specific rationale that the secretary had made for its basis why there was a national security threat.

[00:41:56] Speaker 02:
And then why isn't that a non-delegation problem in that situation?

[00:42:03] Speaker 00:
I mean, the non-delegation, well, let me first answer it specifically with respect to Algonquin.

[00:42:10] Speaker 00:
Because in Algonquin, the Supreme Court was actually reviewing action that was taken, again, some 20 years after the original

[00:42:25] Speaker 00:
Proclamation on Petroleum Products.

[00:42:27] Speaker 00:
And in that, the Supreme Court described what President Nixon had done as radically amending the program by moving away from a quota program into an import licensing scheme.

[00:42:41] Speaker 00:
So sort of the qualitative differences between the remedy that the president was imposing some 20 years afterwards.

[00:42:54] Speaker 00:
The court was aware of the president's usage and exercise of power under Section Q32.

[00:43:00] Speaker 03:
And that's... This is just a factual matter.

[00:43:05] Speaker 03:
Did President Nixon's Secretary of Treasury, I guess, the person at the time, make a new report at that time, or was this all based on the Eisenhower-era report?

[00:43:18] Speaker 00:
No.

[00:43:18] Speaker 00:
At that time, the secretary... There was no new investigation

[00:43:23] Speaker 00:
until 1975.

[00:43:24] Speaker 00:
So it was still two years after President Nixon started winding down the quota program.

[00:43:34] Speaker 04:
And this is before the 1988 amendments, correct?

[00:43:39] Speaker 04:
I mean, we were looking at a different statute at that time.

[00:43:44] Speaker 00:
Yes, although if anything, I think what the court is concerned about is whether

[00:43:51] Speaker 00:
there's any non-delegation concerns, which this court already recently, in a non-presidential opinion, concluded that this court was still bound to follow Algonquin.

[00:44:04] Speaker 04:
So I'd like to follow up a little bit on the discussion with Judge Chen.

[00:44:09] Speaker 04:
And this goes back to the nature and duration provision of the statute.

[00:44:15] Speaker 04:
And we can see in there that there's got to be some sort of tie between any action taken by the president and a sense of impairment to the national security.

[00:44:27] Speaker 04:
What if the president determines later on to take action that's not tied to a sense of impairment of national security?

[00:44:38] Speaker 04:
What if it's outside of the realm of national security?

[00:44:41] Speaker 04:
Does the president have discretion under the statute to do that?

[00:44:48] Speaker 00:
The president has to follow the statute.

[00:44:53] Speaker 00:
The statute outlines non-exhaustive factors in subsection two of what the president is to consider in addressing national security.

[00:45:02] Speaker 00:
And if the Congress believes that the president is not acting consistent with our national security, it always has the power to rein in the president.

[00:45:18] Speaker 04:
But the suggestion that the court can... Wouldn't the court also have the authority to determine that a president is acted outside its statutory authority?

[00:45:35] Speaker 00:
Yes, to the extent that it does not require this court to review the factual findings or the exercise of the president's judgment.

[00:45:43] Speaker 03:
Correct.

[00:45:44] Speaker 03:
Okay.

[00:45:45] Speaker 03:
Can I just... Do my colleagues... Yeah, I do.

[00:45:48] Speaker 03:
Go ahead.

[00:45:48] Speaker 03:
So we just spent a lot of time talking about what I guess I would expect the executive branch to say, which is, no, we don't see very many limits on the authority.

[00:46:01] Speaker 03:
But I'm trying to figure out

[00:46:03] Speaker 03:
how much of that is essentially hypothetical and how much of it is presented here.

[00:46:08] Speaker 03:
Is it the case that in this situation we have two things, namely the 9705, the original pronouncement or proclamation, expressly says that we're going to keep an eye on what's going on in the future, including with respect to

[00:46:30] Speaker 03:
agreements we're going to negotiate, and depending on what we negotiate in agreements, we may actually need a corresponding adjustment to the tariff as it applies to other countries.

[00:46:42] Speaker 03:
And second, when 9772 comes along in August of 2018, it doesn't vary, depart from, it doesn't depart from the rationale of the secretary's report.

[00:46:58] Speaker 03:
It says the problem is that the 80% utilization ratio that we're looking for hasn't been achieved yet, so we need to do more.

[00:47:10] Speaker 03:
So is it right that the kinds of situations that you were discussing at length about powers that you think the president would have are not

[00:47:24] Speaker 03:
presented here or are they presented here?

[00:47:27] Speaker 03:
We seem to have both an express initial proclamation that says I'm putting into place a course of action, elements of which will be chosen in the future as circumstances permit or require, and second, the factual basis for the Commerce Report is the very basis on which the 9772 proclamation rests.

[00:47:53] Speaker 03:
Can you address that?

[00:47:55] Speaker 00:
Yes, Your Honor.

[00:47:56] Speaker 00:
I think that it's really appreciated the Court's questions with respect to the outer bounds of the President's authority.

[00:48:04] Speaker 00:
In this case, it seems that what the President did here is exactly what Congress intended the President to do.

[00:48:12] Speaker 00:
He timely made a finding a concurrence.

[00:48:15] Speaker 00:
He timely identified a course of action, a strategy for addressing the impairment of

[00:48:21] Speaker 00:
the threat of impairment to national security.

[00:48:25] Speaker 00:
And then in Proclamation 9772, in paragraphs 1 and 2, he referenced those, the Secretary's report referenced his original proclamation and finding.

[00:48:41] Speaker 00:
And then he explained that he'd received additional information suggesting that the capacity utilization rate is still low.

[00:48:50] Speaker 03:
And... But just to be clear, did he or did he not adhere to, I think it was an 80% target figure that was in the secretary's report, or did he change it to some higher figure?

[00:49:08] Speaker 00:
No, Your Honor.

[00:49:08] Speaker 00:
In paragraph four of proclamation 9772, the President explained that the target capacity...

[00:49:18] Speaker 00:
that basically the imports, I'm sorry, the production capacity, target capacity utilization level recommended in the report had not been met and was not being met.

[00:49:30] Speaker 00:
So he did reference the secretary's recommendations, although of course he's not tied in the statute to the secretary's recommendation.

[00:49:39] Speaker 03:
Well, but the of course part is I think what we've been exploring at some length

[00:49:45] Speaker 03:
and how the outer limits do raise questions about a statute in which I think you agree with this.

[00:49:53] Speaker 03:
If the Commerce Secretary in his or her report says, I don't think there's a threat, then the President cannot act, right, under this provision.

[00:50:04] Speaker 00:
There is nothing for the President to do in that circumstance.

[00:50:06] Speaker 00:
Right.

[00:50:06] Speaker 03:
So Congress clearly put in place a precondition with various

[00:50:12] Speaker 03:
department heads playing a role in making reports to establish procedural prerequisites that clearly matter, and maybe they matter particularly in a context in which the substantive judicial review of an eventual

[00:50:32] Speaker 03:
presidential determination has to be extremely limited because of the national security area, as we said, making it particularly important that the procedural requirements be adhered to.

[00:50:44] Speaker 03:
And that does at least then raise the question of where the line is for when the president either departs from or doesn't depart from the basis in the secretary's report.

[00:50:56] Speaker 03:
But I think, as I understand,

[00:50:59] Speaker 03:
your point.

[00:51:00] Speaker 03:
In this case, the President didn't depart from the Secretary's basis.

[00:51:05] Speaker 00:
That is correct, Your Honor.

[00:51:07] Speaker 02:
Ms.

[00:51:08] Speaker 02:
Hogan, thank you for your endurance during this oral argument.

[00:51:14] Speaker 02:
I do have another question, though.

[00:51:17] Speaker 02:
Now, and that goes to 1862 C3A.

[00:51:22] Speaker 02:
Judge Toronto had raised this provision earlier.

[00:51:28] Speaker 02:
This is in the circumstance where there is a negotiated agreement of some kind between the president and a foreign country and under double little i Roman numeral 2, if that agreement has been entered into and is not carried out or is ineffective in eliminating the threat to the national security posed by imports of such articles,

[00:51:58] Speaker 02:
then the president shall take other actions to adjust the imports of the article.

[00:52:04] Speaker 02:
And the question and concern I have here is that right here in this provision, Congress has expressly authorized the president to take further action when his initial action, in this particular instance reaching an agreement with a foreign nation,

[00:52:23] Speaker 02:
has proven to be ineffective in eliminating the threat to national security.

[00:52:29] Speaker 02:
And so the inference or one inference could be given that Congress included such an express authorization for the president to take further action in this particular circumstance and that we see no such corresponding express authority from Congress to the president

[00:52:53] Speaker 02:
in the more general determination of the nature and duration of the action in 1862 C1, should we take away from that?

[00:53:06] Speaker 02:
Why shouldn't we take away from that the idea that Congress did not contemplate the president to take subsequent actions under his C1 authority, but instead Congress

[00:53:20] Speaker 02:
only provided such subsequent action authority under C3A when an agreement has not proven to be effective?

[00:53:34] Speaker 00:
We think that the better inference is that, again, given the historical context of the machine tools case and the particular problem that Congress saw itself solving in 1988, which was its perception that the President was

[00:53:50] Speaker 00:
letting a national security threat linger and not timely entering into negotiations or addressing the threat, that it makes sense that Congress would provide specific instructions to the president in that circumstance.

[00:54:04] Speaker 00:
And to read subsection C3A in the way that the trial court did, which is as the only way for the president under the statute to be able to modify action, actually leads to an absurd result.

[00:54:19] Speaker 00:
in that it would mean that the president can take action five years after an agreement is entered into if those measures prove ineffective.

[00:54:31] Speaker 00:
The president is then authorized to, for example, impose a tariff.

[00:54:36] Speaker 00:
But the president would be precluded from doing what he did here, which is identifying a different remedy, a tariff, and then making an adjustment to that tariff five months after the original proclamation.

[00:54:48] Speaker 00:
And there's no reason why, nothing in the legislative history, nothing in the historical understanding of the statute that should lead the court to that conclusion.

[00:54:57] Speaker 00:
It's not required by the statute, and it is not the best reading in terms of the national.

[00:55:03] Speaker 00:
Ms.

[00:55:03] Speaker 02:
Hogan, then is it your view that this particular provision in C3A about, hey, if the agreement turns out to be ineffective, the president shall take further action

[00:55:18] Speaker 02:
Are you saying that that wasn't a necessary provision there, that if you had pulled that out of the statute, the president would have had that same authority anyway?

[00:55:30] Speaker 00:
Yes.

[00:55:31] Speaker 00:
We believe that the president has always had that authority going back to 1955.

[00:55:34] Speaker 02:
No, but I'm talking about the circumstance that's presented in C3A.

[00:55:40] Speaker 02:
Once the president reaches an agreement with a country or multiple countries and then concludes that

[00:55:48] Speaker 02:
Those agreements haven't had the effect, the intended effect.

[00:55:54] Speaker 02:
And so therefore, the president can take additional further actions.

[00:55:59] Speaker 02:
What I'm asking is, if you pull that out of the statute, in your view, would the president nevertheless, under the statute, have that authority to take those kinds of subsequent further actions?

[00:56:13] Speaker 00:
Yes, Your Honor, I think that would be encompassed within the general understanding of what the, that the action to adjust imports is a continuing authority irrespective of what remedy the President selects.

[00:56:29] Speaker 00:
Okay.

[00:56:29] Speaker 00:
C3A.

[00:56:32] Speaker 04:
Go ahead, go ahead and finish the answer.

[00:56:36] Speaker 00:
That C3A is best read as

[00:56:39] Speaker 00:
sort of providing further guidance and directions to the President in that particular circumstance that Congress was particularly concerned about.

[00:56:49] Speaker 00:
And that includes further reporting to Congress.

[00:56:54] Speaker 00:
So we think that is explained by the historical basis for the amendments.

[00:57:00] Speaker 04:
Okay.

[00:57:00] Speaker 04:
I'd like to go ahead and conclude this part of the arguments, but I'll ask my colleagues if they have any further questions.

[00:57:09] Speaker 04:
No, no, no, nothing more for me.

[00:57:12] Speaker 04:
Okay.

[00:57:12] Speaker 04:
Counselor Hogan, thank you so much for indulging us.

[00:57:15] Speaker 04:
We, we had a lot of questions and, and, um, we appreciate your responses.

[00:57:22] Speaker 04:
Um, I'm going to go ahead and preserve your four minutes of rebuttal time.

[00:57:26] Speaker 04:
Um, so let's hear now from counselor Nolan.

[00:57:31] Speaker 05:
Is Matt Nolan may it please the court?

[00:57:33] Speaker 05:
Uh, that known I'm appearing on behalf of the plaintiff appellee's trans specific steel.

[00:57:37] Speaker 05:
Boris on management and Jordan International.

[00:57:40] Speaker 05:
We thank the court for taking this case up expeditiously today and look forward to your questions.

[00:57:46] Speaker 05:
I would like to pick up where the government left off on the discussion of the government's continuing position that they have continuing authority or that somehow the president has the ability to take a single comprehensive action which lasts forever

[00:58:07] Speaker 05:
as long as he feels is necessary to remedy a perceived national security threat.

[00:58:14] Speaker 05:
The government relies strongly on pre-1988 law.

[00:58:18] Speaker 05:
That's not the law that exists today.

[00:58:21] Speaker 05:
The Congress put the May amendments to Section 232 in place in 1988 for the specific purpose of putting strict timelines on presidential action.

[00:58:32] Speaker 03:
It seems to me there's

[00:58:33] Speaker 03:
The same words about time limits in 1988 can mean radically different things.

[00:58:41] Speaker 03:
One is we really want the president to act within some time period and not ignore the obligation.

[00:58:53] Speaker 03:
And another is we're setting a time limit that sets an outer limit on the time to act so that once that time passes,

[00:59:02] Speaker 03:
the pre-existing power disappears.

[00:59:05] Speaker 03:
What evidence is there that Congress had concern that was trying to do the second thing?

[00:59:13] Speaker 05:
So, obviously, thank you, Roger.

[00:59:15] Speaker 05:
The 1980 amendments clearly were designed to compel immediate and effective action by the President, right?

[00:59:23] Speaker 03:
At the price of no power after that time limit?

[00:59:29] Speaker 05:
I would say the power is time limited unless the President goes back and gets a refresh or obtains a refreshment on the report.

[00:59:37] Speaker 03:
Let me just try to focus this.

[00:59:41] Speaker 03:
Put aside what is obviously the most important or at least the first thing, which is

[00:59:46] Speaker 03:
what message you would get out of the current words of the statute.

[00:59:50] Speaker 03:
Really, put aside that for a minute.

[00:59:51] Speaker 03:
What evidence is there that Congress was trying to do the thing that you say it did, which is to close the window on presidential action after certain periods?

[01:00:10] Speaker 05:
So beyond the plain language of the statute, which would indicate that there is a specific limitation on the nature and duration of the action taken that's in the statute, you also have in the legislative history where the Congress actually considered giving the President more leeway to extend out the time period for which he would act.

[01:00:29] Speaker 05:
And they rejected that in the legislative history.

[01:00:31] Speaker 05:
They came back and said, look, Mr. President, we want you to get the report

[01:00:36] Speaker 03:
make a decision within ninety days and implement the action that you're going to take with respect to that report within a hundred and five days and i don't know if we said i don't have to that material in front of me but at least as you just described it it seems to me it wholly fails to make that the crucial distinction you're making where did congress say if you don't act by a certain time we yank your power to act uh... i think that this goes back

[01:01:06] Speaker 05:
both with the nineteen eighty eight amendments but you can also go back before the nineteen eighty eight amendments because in past administrations in administering section two thirty two the government has actually the president has actually gone back and gotten supplemental reports from the commerce secretary in order to achieve the objective and i take you back to present president ford's modification of proclamation thirty two seventy nine and i don't know if you know if the judge can i'm

[01:01:34] Speaker 02:
I, too, am really interested in hearing a direct answer to Judge Toronto's question.

[01:01:42] Speaker 02:
And let me repeat it.

[01:01:44] Speaker 02:
It's where is there any expression of legislative intent that these time limits that were installed in 1988 into Section 232B were designed to yank away from the president any authority to take actions

[01:02:04] Speaker 02:
outside of that time limit.

[01:02:07] Speaker 02:
Is that the answer?

[01:02:08] Speaker 02:
There really isn't anything in the legislative history on that?

[01:02:11] Speaker 05:
I would have to agree with you, Otter.

[01:02:13] Speaker 05:
There's nothing in the legislative history that says that.

[01:02:15] Speaker 05:
However, I would also say that if it is interpreted that those amendments don't in any way constrain the president's ability to act subsequently, what is the purpose of 1988 amendments in terms of putting guardrails on presidential action in the future?

[01:02:34] Speaker 05:
Where are we going to take the analysis?

[01:02:35] Speaker 05:
Because if we go there, are we then saying the president, once he has the authority and takes that initial action within the time frame, he can take whatever action he wants in the future at what time, at what duration, or of whatever nature that he feels is appropriate?

[01:02:52] Speaker 02:
Would you agree that the pre-1988 version, in fact, did confer that degree of authority to the president?

[01:03:02] Speaker 05:
It gave the President, it wasn't a time, the time limitation did not exist.

[01:03:06] Speaker 05:
Subsection C did not exist prior to 1988.

[01:03:09] Speaker 02:
Okay, so then, so let me just make sure I get a yes or no.

[01:03:12] Speaker 02:
So the pre-1988 version, you would agree it gave the President the authority to do subsequent actions years after the initial proclamation.

[01:03:24] Speaker 05:
Is that right?

[01:03:25] Speaker 05:
That is the way the statute reads, but I also would take the court to look at what actually has been going on with respect to the application of 232 prior to 1988.

[01:03:36] Speaker 05:
As I said before, as indicated in the Court of International Trade's opinion, the government actually has gone back and gotten supplemental reports from the Secretary of Commerce to support a change in decision.

[01:03:49] Speaker 03:
Did the government consistently do that?

[01:03:53] Speaker 03:
I was remembering that it was undisputed that on numerous occasions the president did not go back, even if on some occasions the president did.

[01:04:05] Speaker 03:
Right.

[01:04:05] Speaker 05:
Well, part of the issue is with this, there is such a paucity of decisions with respect for us to rely on in this.

[01:04:11] Speaker 05:
Um, if you actually look at the history of section two 32 of all of the investigations that took place, I think a total of some 31 or 32, including the Trump administration,

[01:04:22] Speaker 05:
all of the in and of course of the pre trump uh... cases only sixteen in sixteen of the cases commerce found no threat existed nine of those were like we're related to presidential action and most of those were crude oil so we're really arguing about here is those cruel cases right those are the only ones where there was an action and then potential subsequent actions

[01:04:43] Speaker 05:
In most of the cases, the president either didn't take action, which is one of the reasons why we got to the 1988 amendments in the first place.

[01:04:50] Speaker 03:
Isn't there, I thought I saw somewhere in the briefing here, or maybe in the more recent CIT decisions, that there was, I don't know, a couple of handfuls of modifications of the petroleum.

[01:05:04] Speaker 05:
Yes, there were, actually, and one of those, yes, there were, Your Honor.

[01:05:08] Speaker 03:
And how many times did the President go back to the Secretary for a new investigation?

[01:05:12] Speaker 05:
I know of at least the one time that the President went back.

[01:05:14] Speaker 03:
In 1975?

[01:05:15] Speaker 05:
In 1975.

[01:05:17] Speaker 03:
Okay, and that was, in particular, I think, Ms.

[01:05:21] Speaker 03:
Hogan said that the particular action that was on review in Algonquin in the Supreme Court was one in which the President did not go back for an investigation.

[01:05:31] Speaker 05:
Right, that's true.

[01:05:32] Speaker 05:
You're right, Your Honor.

[01:05:33] Speaker 05:
I will also say there was one case where the president's change in action was challenged by the American Gasoline Refiners Association and a district court found that the president couldn't take the action that he took.

[01:05:48] Speaker 03:
Can you just address anything you want to about the 1975 opinion of Attorney General Saxby, which at least on its face seems to have

[01:05:59] Speaker 03:
some confirmatory bearing on this continuing course of action authorization.

[01:06:05] Speaker 05:
So by yes, the way I would look at that is, is obviously that that opinion took place prior to the 1988 amendments.

[01:06:12] Speaker 05:
So it was looking at the old law.

[01:06:14] Speaker 05:
It wasn't interpreting the law as it exists today with us.

[01:06:18] Speaker 05:
Um, but I also would take the court to take a look at, uh, the, uh, the legal counsel's report that was issued in 1982 where

[01:06:28] Speaker 05:
the government uh... in a in a uh... at a report to uh... because i don't know if you can yes yes it was the attorney general office of legal counsel issued a report on proclamation forty three forty one which was done for ten days but it says it if you know it is not an insurmountable burden to require that the president returned to the secretary and obtain a new report prior to taking action under section two thirty two this is a legal opinion issued by the government

[01:06:58] Speaker 05:
to the president's office where they in nineteen eighty two actually indicated that they would anticipate a new report or refresh report going back to the president to support a group of new or different action being taken in connection with the petroleum actions being taken

[01:07:14] Speaker 05:
And that then prompted President Ford to get a new report, which only took them 10 days to prepare.

[01:07:19] Speaker 05:
Wait a minute.

[01:07:20] Speaker 03:
1982 can't be President Ford.

[01:07:22] Speaker 05:
Oh, I'm sorry.

[01:07:22] Speaker 05:
I'm sorry.

[01:07:23] Speaker 05:
It was 82.

[01:07:23] Speaker 05:
That was the decision.

[01:07:24] Speaker 05:
Yes.

[01:07:25] Speaker 05:
President Ford's request for a new report was 75.

[01:07:29] Speaker 05:
I'm getting a little mixed up.

[01:07:30] Speaker 02:
So I'm sorry.

[01:07:32] Speaker 02:
When was this OLC opinion?

[01:07:34] Speaker 02:
What year?

[01:07:35] Speaker 05:
1982.

[01:07:36] Speaker 05:
It's actually referenced in the Court of International Trade opinion under footnote nine.

[01:07:41] Speaker 02:
OK.

[01:07:41] Speaker 02:
So was it President Ford or was it

[01:07:44] Speaker 02:
President Reagan?

[01:07:45] Speaker 02:
It would have been President Reagan at that point.

[01:07:47] Speaker 02:
OK.

[01:07:49] Speaker 02:
Can I ask you about your understanding of the restriction on the president's authority?

[01:07:59] Speaker 02:
As I understand it, you read the statute as giving the president 90 days to take action, and he must take action.

[01:08:07] Speaker 02:
But then after that 90 days, if the president wants to take

[01:08:13] Speaker 02:
any further action, he needs to get another secretary report.

[01:08:18] Speaker 02:
Is that right?

[01:08:19] Speaker 05:
Yes, he should go back to the secretary and get a refresh report.

[01:08:22] Speaker 02:
Would that include terminating the tariffs?

[01:08:27] Speaker 05:
Well, Your Honor, obviously a President always has the ability to rescind a proclamation or an executive order.

[01:08:33] Speaker 05:
And of course, we're seeing a lot of that lately with President Biden.

[01:08:36] Speaker 02:
But I thought you just said to me that for the President to be able to take any further action of any kind outside the 90-day window, he has to go back to get the report from the Commerce Secretary who confers with the Department of Defense Secretary and other important officials in order to

[01:08:53] Speaker 02:
investigate, come up with findings, and issue a new report and recommendation.

[01:08:58] Speaker 05:
Well, I guess what I should have said, a modification or a supplemental action taken, not a simple rejection or rescinding of a proclamation or executive order.

[01:09:07] Speaker 03:
What's the take for the distinction?

[01:09:09] Speaker 05:
I think a president within a statutory confines has always had the authority to remove or rescind a proclamation by a prior president.

[01:09:17] Speaker 05:
That exists.

[01:09:19] Speaker 05:
But I think there is a difference between that

[01:09:21] Speaker 05:
and giving the president basically unfettered authority to apply a statute for as long as he feels is in his interest, whether or not, you know, it continues to be guided by national security.

[01:09:37] Speaker 03:
Not in his interest.

[01:09:41] Speaker 03:
He has to do it for, on the specific statutory basis, which is admittedly quite broad, national security, which goes beyond, in fact, defense needs.

[01:09:52] Speaker 03:
under the statutory definition, and it has to be specifically responsive to a threat that imports make to national security, not just using imports for some other national security purpose in the U.S.

[01:10:08] Speaker 03:
relations with a particular country.

[01:10:11] Speaker 05:
Your Honor is correct, yes.

[01:10:12] Speaker 05:
There has to be a national security purpose behind it that is being advanced.

[01:10:17] Speaker 04:
You know, just to add to that, it's not just imports in general, it's Turkish imports that have heightened national security, correct?

[01:10:28] Speaker 05:
That is correct.

[01:10:28] Speaker 05:
That is what the president espoused when he put the 50% tariffs on.

[01:10:32] Speaker 05:
I might add that the president removed those tariffs the following August of 2019 and dropped them back to 25%.

[01:10:42] Speaker 02:
And again, that would be outside his authority to do that.

[01:10:45] Speaker 05:
Yes, that would be outside his prescribed authority without having gone back, going back to obtain a refresh of the Commerce Department report to support the actions being taken.

[01:10:56] Speaker 05:
And I guess what I'm saying is the font of the President's authority under Section 232 is derived from the Commerce, the Secretary's report.

[01:11:05] Speaker 05:
It's in that report that a national security threat is identified

[01:11:10] Speaker 05:
And recommendations are made to the president.

[01:11:12] Speaker 05:
Once that happens, the president does have authority to either follow those recommendations, change them, alter them to fit what he thinks is the proper approach to go forward.

[01:11:22] Speaker 05:
But once he commits to that action, then there has to be some circumscription on his ability to forevermore change or adapt those actions as long as he feels, or as long as it exists.

[01:11:35] Speaker 02:
Why wouldn't that constraint in this particular instance be the secretary's report, which said we need an 80% domestic steel industry utilization rate?

[01:11:51] Speaker 02:
And then now in this particular instance, the president discovers, okay, I agree, that's what we need, and this is the tariffs I'm going to

[01:12:00] Speaker 02:
apply and then half a year or a year later he learns, wait a second, we only got a very modest step increase in the utilization rate of the domestic steel plants and so therefore we haven't met the agreed upon objectives articulated in the secretary's report so we just have to go higher with at least some

[01:12:27] Speaker 02:
tariffs on some of these imports of steel.

[01:12:30] Speaker 02:
What is wrong with that outcome?

[01:12:32] Speaker 02:
Because in that sense, it is tethered to the secretary's report.

[01:12:35] Speaker 05:
It is tethered to the secretary's report, but I guess how far afield are we going to go from what the report actually says?

[01:12:43] Speaker 05:
Because the report indicates that the national security threat were steel imports writ large right from around the world coming into the United States and creating a threat to US domestic production.

[01:12:55] Speaker 05:
The recommended measures were put in place were either a global quota, a global tariff, or a tariff of much higher proportions on some 12 or 13 countries.

[01:13:05] Speaker 05:
The President chose a slightly higher tariff on the global stage, but also agreed at the same time that he was going to undertake the clause in the statute which allows him to negotiate an agreement with certain countries, which he did with Mexico and Canada and South Korea and Brazil.

[01:13:22] Speaker 03:
When were the Canadian and Mexican agreements?

[01:13:26] Speaker 05:
Those were, I think those were in May in the summer, if I'm correct, after the original March.

[01:13:32] Speaker 03:
So by the time August of 2018 comes around, if what you just said is right, we have agreements with four of the five exporters of steel to the United States that are above

[01:13:52] Speaker 03:
Turkey in the list, the only one there's no agreement with is Russia.

[01:13:58] Speaker 03:
So the choice of the next biggest importer would be Russia or Turkey.

[01:14:08] Speaker 05:
That would be correct if we were to go back and look at the extrinsic evidence available.

[01:14:14] Speaker 03:
That list is in the report and I thought you just indicated that there were

[01:14:21] Speaker 03:
Well, I guess we do have at least two proclamations indicating agreements with South Korea and Brazil.

[01:14:31] Speaker 03:
Was it April and May of 2018?

[01:14:33] Speaker 03:
I'm not sure, at least the Joint Appendix has anything about Canada and Mexico except that they were omitted from the initial one because negotiations looked promising.

[01:14:45] Speaker 03:
But was an agreement reached with those two countries before August of 2018?

[01:14:52] Speaker 05:
There was a voluntary agreement put in place.

[01:14:55] Speaker 05:
I don't think the president ever had to come to a final decision because there was a voluntary, I think you're going to call it a voluntary restraint agreement.

[01:15:01] Speaker 05:
The Mexicans agreed not to go above a certain threshold.

[01:15:05] Speaker 03:
And do we know anything about Russia, which would then be the only country with a larger volume of steel imports into the United States higher on the list than Turkey at that period?

[01:15:19] Speaker 05:
Other than the fact that they had 25% duties imposed, and that was about it.

[01:15:23] Speaker 02:
OK.

[01:15:25] Speaker 02:
Mr. Nolan, I understand there were a lot of actions taken by the president vis-a-vis different countries that

[01:15:34] Speaker 02:
were spurred by this secretary report here on Steele.

[01:15:38] Speaker 02:
In your view, which of those actions were outside the president's authority?

[01:15:47] Speaker 05:
I believe that the actions that he took with respect to coming to agreements were within the statutory framework under subsection whatever the 180-day period that he had.

[01:15:57] Speaker 02:
OK, even though he may have initially applied the 25%

[01:16:05] Speaker 02:
additional tariffs?

[01:16:07] Speaker 02:
Correct.

[01:16:08] Speaker 02:
Okay.

[01:16:11] Speaker 02:
And that's because those negotiations occurred inside the 180-day period?

[01:16:17] Speaker 05:
Correct.

[01:16:17] Speaker 05:
Yes.

[01:16:21] Speaker 02:
So the only actions that he took coming out of this Secretary's report that were outside of his statutory authority in your view was this

[01:16:33] Speaker 02:
Proclamation 9772 and then subsequent action.

[01:16:38] Speaker 05:
Well, I don't believe so, but I couldn't swear to it because obviously we are focused on this, this case, this particular case with Turkey.

[01:16:46] Speaker 05:
I'm not challenging other actions that he's taken.

[01:16:48] Speaker 05:
We're only challenging with respect to Turkey.

[01:16:50] Speaker 02:
No, I understand.

[01:16:51] Speaker 02:
I'm just trying to at the same time.

[01:16:52] Speaker 02:
I don't think there was, I don't recall.

[01:16:55] Speaker 05:
Yeah.

[01:16:56] Speaker 05:
I don't recall there was another action outside.

[01:16:58] Speaker 05:
But I would have to go back and take a long hard look at the history of the record on that one.

[01:17:04] Speaker 04:
Counselor, is this case truly distinguishable from Allegheny Pittsburgh Coal?

[01:17:14] Speaker 05:
I would say it's distinguishable, obviously, because the law was different.

[01:17:20] Speaker 05:
The statute was different.

[01:17:24] Speaker 05:
I'm not sure what else to say about it.

[01:17:25] Speaker 04:
Okay.

[01:17:26] Speaker 04:
All right.

[01:17:27] Speaker 04:
Fair enough.

[01:17:28] Speaker 04:
Any other questions?

[01:17:31] Speaker 04:
Okay, hearing no other questions, let's go back to Councilor Hogan.

[01:17:36] Speaker 04:
You have four minutes of rebuttal time.

[01:17:40] Speaker 00:
Thank you, Your Honor.

[01:17:41] Speaker 04:
Councilor, before you start it, and I won't dock you on this, but can you also tell us what the status of the stay is and the injunction?

[01:17:51] Speaker 00:
I'm sorry, the status of the stay in this case?

[01:17:54] Speaker 04:
Yes.

[01:17:56] Speaker 04:
Had there been any payment of duties yet or refunds?

[01:18:00] Speaker 00:
Oh, oh.

[01:18:01] Speaker 00:
Yes, Your Honor.

[01:18:01] Speaker 00:
All of the judgments have been paid to the four importers.

[01:18:06] Speaker ?:
Okay.

[01:18:10] Speaker 03:
The reading of the staff... Can you say something about the 1982 OLC opinion, which I'm afraid I have not looked at?

[01:18:23] Speaker 00:
I will confess that I'm struggling to remember which particular... Okay, that's fine.

[01:18:28] Speaker 03:
I don't want to waste your time by each of us guessing, so that's fine.

[01:18:32] Speaker 00:
I guess what I would say is that the notion that it might be a good policy reason for the president to request a new investigation from the secretary or to request for it is not the same as whether the statute requires it or whether the president is cut off from the power to take any kind of action,

[01:18:53] Speaker 00:
adjustment of the rate of tariff, whether that's a reduction of the tariff, whether that's a termination of the measure.

[01:19:00] Speaker 00:
Under the reading that the trial court imposed, the trial court's reading and the importer's reading of the statute, the President wouldn't even be able to implement the tariff

[01:19:15] Speaker 00:
exclusion program that the Department of Commerce administers because those actions necessarily take place outside of the 90 and 15 day time periods.

[01:19:27] Speaker 00:
And that just can't be the case that the President is totally precluded from taking any kind of action after the 90 plus 15 day windows.

[01:19:38] Speaker 04:
We would say here that the time frames... Wouldn't Congress have an interest

[01:19:43] Speaker 04:
in ensuring that the delegation of its authority to manage the tariff to the president under these circumstances has some limitation to it.

[01:19:53] Speaker 04:
And isn't that interest reflected in the 88 Amendment?

[01:20:00] Speaker 04:
The other side of this coin that I'm describing is Congress simply giving away its authority to the president, an authority that's been delegated to Congress under the Constitution.

[01:20:13] Speaker 04:
So what's your response to there being a delegation issue here, if we accept your argument?

[01:20:26] Speaker 00:
The Supreme Court has already said that there's no non-delegation problem with this statute.

[01:20:32] Speaker 00:
And nothing in the 1988 amendments altered that.

[01:20:35] Speaker 00:
I mean, if anything, Congress provided more

[01:20:39] Speaker 00:
guardrails by providing these timeframes for concurrence and implementation.

[01:20:44] Speaker 00:
And those guardrails served their purpose here because the president did act timely to concur and implement action within the time frame set for the statute, set for action.

[01:20:56] Speaker 00:
And that doesn't preclude the president.

[01:21:00] Speaker 04:
So what are the guardrails you're talking about right now?

[01:21:04] Speaker 00:
So Congress wanted the president to

[01:21:08] Speaker 00:
act timely, to not sit on a report that there was a threat of impairment to national security.

[01:21:13] Speaker 04:
So if the president does not act timely, is Z without authority under the statute?

[01:21:26] Speaker 00:
Probably not, for the reason that we described in our brief, which is a slightly different principle, but simply that there's not any evidence that Congress intended for the president to

[01:21:38] Speaker 00:
to lose his authority if he's a day late or two weeks late.

[01:21:43] Speaker 00:
Congress intended that the mandatory job be done and that job is to protect national security.

[01:21:49] Speaker 00:
So much in the same way as the Supreme Court has read that the term shall need something more than the term shall in order to cut off power to act.

[01:22:01] Speaker 00:
We believe that that principle applies here.

[01:22:04] Speaker 04:
How do we know that the President is acting

[01:22:07] Speaker 04:
on behalf of the national security.

[01:22:11] Speaker 00:
We take what the president says, and in this circumstance... It takes value.

[01:22:15] Speaker 04:
The president just simply says, I believe, wakes up some morning and says, you know, I believe today I'll impose more tariffs on Turkey.

[01:22:24] Speaker 04:
You know, I kind of don't like them, and I'm going to impose more tariffs.

[01:22:29] Speaker 04:
Would that be within his authority?

[01:22:33] Speaker 04:
No, he wouldn't.

[01:22:34] Speaker 04:
He would have to go back.

[01:22:35] Speaker 04:
He would have to base that decision on trade data, either his or the Secretary's.

[01:22:43] Speaker 04:
And here, hasn't Congress said you must base this on the Department of Commerce data?

[01:22:53] Speaker 00:
Congress has not said that.

[01:22:54] Speaker 00:
Congress has said that there must be an investigation.

[01:22:57] Speaker 00:
Congress has not prohibited the President from meeting with his advisors, obtaining new information,

[01:23:03] Speaker 00:
on an informal or confidential basis that can inform the president's adjustment of the remedy that he selects.

[01:23:11] Speaker 00:
The remedy that he selects is entirely within his discretion.

[01:23:15] Speaker 04:
But it's got to be related to tariffs, correct?

[01:23:25] Speaker 00:
It has to be related to action to adjust imports, whether that's tariffs, quotas, embargoes, some other action.

[01:23:32] Speaker 00:
It would not necessarily be limited to tariffs, although that is the tool that, one of the primary tools that she selected in this case.

[01:23:43] Speaker 00:
Just to, I think the court had a question to my colleague about the Allegheny Pittsburgh case.

[01:23:50] Speaker 00:
And I understand we never addressed the equal protection claims.

[01:23:54] Speaker 00:
So perhaps I'll just briefly address that particular case, which is an entirely different

[01:24:01] Speaker 00:
proposition because our entire trade regime, we do not have a principle of equal taxation under our trade regime unlike the West Virginia state constitution which embodied a principle of equal taxation.

[01:24:18] Speaker 00:
Our entire import scheme is based on the principle that products from different countries can be and are routinely

[01:24:31] Speaker 00:
treated differently.

[01:24:32] Speaker 00:
So we think that's a critical distinction and a critical error that the Court of International Trade reached in the equal protection portion of its judgment.

[01:24:46] Speaker 04:
Okay.

[01:24:48] Speaker 04:
Go ahead.

[01:24:49] Speaker 00:
I was going to say, I think I would respectfully request that the Court reverse the judgments for those two reasons and vacate the judgment.

[01:25:01] Speaker 04:
OK, thank you so much.

[01:25:03] Speaker 04:
We thank the parties for their arguments this morning.

[01:25:07] Speaker 04:
This court will now take this matter under advisement and stand in recess.

[01:25:17] Speaker 00:
This honorable court is adjoined from day to day.