[00:00:00] Speaker 05: We will have two arguments this morning. [00:00:03] Speaker 05: The first one is number 212066, prime source building products against the United States. [00:00:15] Speaker 05: Mr. Olin. [00:00:17] Speaker 02: May it please the court, the president acted lawfully when he issued proclamation 9980. [00:00:22] Speaker 02: The trial court reversibly aired when it declared otherwise. [00:00:26] Speaker 02: This case presents two legal challenges. [00:00:28] Speaker 02: The first is whether the president acted ultra-virus when he issued Proclamation 9980. [00:00:33] Speaker 02: The second is whether accepting our interpretation of Section 232 violates the non-delegation doctrine. [00:00:39] Speaker 02: If the court doesn't want me to start elsewhere, I'll address the statutory question first. [00:00:43] Speaker 05: And just to be clear, you don't mean anything special about ultra virus. [00:00:48] Speaker 05: You just mean in violation of the statute. [00:00:49] Speaker 02: In violation of the statute, correct. [00:00:51] Speaker 02: The statutory question here turns on this court's recent decision in Trans-Pacific. [00:00:57] Speaker 02: In Trans-Pacific, this court rejected the trial court's basis for declaring Proclamation 9980 invalid under the statute. [00:01:05] Speaker 02: What Transpacific held is that the task to determine whether a proclamation is in line with a downstream tariff proclamation is whether that modification is in step with the announced plan of action by adding impositions on imports [00:01:20] Speaker 02: to achieve the stated implementation objective. [00:01:24] Speaker 02: The trial court erred because it did not recognize the possibility of announcement of a course of action, as the president did in Proclamation 9705, or the possibility of a continuing course of action, which is what the president did in Proclamation 9980. [00:01:36] Speaker 02: In other words, according to TransPacific, the question before the court is whether the new pronouncement constitutes a continuation of a course of action [00:01:45] Speaker 02: or whether that action is so divorced from the originating action that it must be deemed a new action for statutory purposes, thereby re-triggering all of Section 232's procedural requirements. [00:01:56] Speaker 02: In our view, a square application of the transpacific test should decide this case. [00:02:00] Speaker 02: First, the text. [00:02:01] Speaker 02: The text of Proclamation 9980 refers back to the text of Proclamation 9705 multiple times repeatedly. [00:02:09] Speaker 02: The context of Proclamation 9980 is that it is a complement to Proclamation 9705. [00:02:15] Speaker 02: In fact, Proclamation 9980 in and of itself seems to make little sense unless it's read as part of a complementary whole. [00:02:22] Speaker 02: Then there's history. [00:02:24] Speaker 02: We know that based upon Proclamation 9705, Proclamation 9772, Proclamation 9886, and down to Proclamation 9980 that the president was really focused on achieving [00:02:36] Speaker 04: a very clear objective, which was- Did Proclamation 9705 say anything about steel derivatives? [00:02:42] Speaker 02: Proclamation 9705 recognized the president's authority to take action as to steel articles and its derivatives. [00:02:50] Speaker 02: It then described what action the president was taking and described that action as a first step, and then announced a continuing course of action that the president would instruct the secretary to continue to monitor the situation and determine whether circumstances weren't an adjustment on that initial step. [00:03:05] Speaker 02: So we think that this case would fall under the test laid out in the transcript. [00:03:10] Speaker 04: In this case, the president received some fresh new information from the secretary in 2018, 2019. [00:03:18] Speaker 04: Is that right? [00:03:19] Speaker 04: Correct. [00:03:20] Speaker 04: Right. [00:03:22] Speaker 04: What if the president hadn't received any updates like that? [00:03:26] Speaker 04: Would the president have legitimately been able to issue this proclamation just based on the strength of the secretary report? [00:03:35] Speaker 02: on the strength of the secretary. [00:03:37] Speaker 02: That would be a closer question, Judge Chen. [00:03:39] Speaker 04: Because the secretary report didn't say anything about derivatives. [00:03:41] Speaker 02: Right. [00:03:41] Speaker 02: And to be fair, I mean, the secretary's report didn't have to. [00:03:44] Speaker 02: I mean, the reason why it might present a closer question is I think Trans-Pacific recognized there could be a staleness sort of concern where circumstances change. [00:03:53] Speaker 02: I think this case is different, though, because here we do know that the president announced a plan of action that he would continue [00:03:59] Speaker 02: to be advised by the secretary, along with other cabinet members, and then he would, you know, he afforded himself the right to adjust his plan of action as necessary, as circumstances arose. [00:04:10] Speaker 02: And in fact, in Proclamation 9980, the president described what those circumstances were in, we think, fairly great detail. [00:04:16] Speaker 02: He announced that he had gotten updated information from the secretary, that it appeared that importers were using circumvention efforts, funneling their imports into a different- Was there a stipulation below that the government can't rely on those updated updates from the secretary? [00:04:31] Speaker 02: There is no stipulation below on that issue. [00:04:34] Speaker 02: In fact, I think the fact that- Did Prime source- [00:04:39] Speaker 02: Argue that in a briefing? [00:04:40] Speaker 02: I don't believe so, Your Honor. [00:04:41] Speaker 02: No. [00:04:42] Speaker 02: There are two things I think that I'm sure of. [00:04:44] Speaker 05: Isn't there some kind of stipulation that the updated communication from the Secretary would not itself satisfy the threshold conditions if satisfaction of those threshold conditions were required? [00:04:57] Speaker 02: That is correct. [00:04:59] Speaker 02: So we stipulated that the conferral process described in 1980 did not constitute a new report under subpart B of the statute. [00:05:06] Speaker 02: So that's what we stipulated to. [00:05:08] Speaker 02: But our position has always been that a new report is not required under the statute because this is part of a continuing course of action. [00:05:16] Speaker 02: We think that sort of makes sense as we read Trans-Pacific because what Trans-Pacific recognized was that [00:05:20] Speaker 02: The institution of these time limits in subpart B of the statute was not divesting the president of authority to take or implement some action with a mandatory, consequentially coercive within these time limits. [00:05:33] Speaker 02: What the Trans-Pacific Court did was it looked back at history, text, context, and recognized that throughout Section 232's existence, [00:05:41] Speaker 02: The president always had authority to adjust and to address circumstances as they evolved. [00:05:46] Speaker 02: In fact, in Proclamation 3279, the petroleum products tariff proclamation, we see over a 16-year period, 26 modifications. [00:05:55] Speaker 02: The president made radical amendments to that initial tariff proclamation, even to extend out to derivative products. [00:06:01] Speaker 02: So there are multiple proclamations within that span of products where the president's [00:06:05] Speaker 02: And not just President Eisenhower, but downstream presidents are expanding tariff coverage or changing tariff coverage to include derivative products, to change it to a quota or licensing system. [00:06:14] Speaker 02: So we think that's perfectly in accord with history and practice and the text of the statute as well. [00:06:19] Speaker 02: Ultimately, we think the trial court erred when it held that the president was not allowed to take action outside the time limit specified in subpart C. We think Trans-Pacific is consonant with our view of the case and that that trial court decision should be overturned. [00:06:35] Speaker 05: Can I ask you about one truly minor matter? [00:06:39] Speaker 05: In Trans-Pacific, we included a footnote that raised the question about whether there was jurisdiction to name the president. [00:06:49] Speaker 05: Do you know what became of that, or do you have a view about it? [00:06:54] Speaker 02: I don't know what became of that. [00:06:58] Speaker 02: I do know that in this case, the trial court, the majority held that the challenge is against the proclamation itself, not against the president. [00:07:07] Speaker 02: So there by jurisdiction over that question, there was a concurrence slash dissent by Judge Baker disagreeing with that proposition. [00:07:13] Speaker 05: I'm sorry. [00:07:13] Speaker 05: I don't know what it means to say that the defendant is the proclamation. [00:07:17] Speaker 05: I thought that's not a sound proposition. [00:07:22] Speaker 02: Yeah. [00:07:23] Speaker 02: I'm not entirely. [00:07:24] Speaker 02: I don't have a clear answer for you, Judge Stronto. [00:07:25] Speaker 02: I apologize. [00:07:26] Speaker 02: I don't think we took a clear position there. [00:07:28] Speaker 02: I'm not sure what happened in Trans-Pacific. [00:07:30] Speaker 02: I do think it's sort of an open question. [00:07:32] Speaker 02: We didn't raise the jurisdiction issue below. [00:07:34] Speaker 02: That aside, the other side of my friend's argument is that if the court accepts their statutory argument, that there are non-delegation problems. [00:07:42] Speaker 02: Again, this court in Trans-Pacific evaluated subpart C1 of the statute, looked at the time limits, said even with those time limits, there's not a serious concern about a non-delegation. [00:07:52] Speaker 02: It still fulfills the intelligible principles test laid out in Algonquin. [00:07:56] Speaker 02: We think that that same holding would apply here as well. [00:08:00] Speaker 02: I don't know if there are any other questions. [00:08:03] Speaker 02: see the rest of it. [00:08:04] Speaker 04: Is there anything in your view that could be remanded, like a possible fact question? [00:08:11] Speaker 02: Like staleness, for example. [00:08:13] Speaker 02: I don't think so, Judge Chen. [00:08:15] Speaker 02: And I'll explain why. [00:08:16] Speaker 02: In Trans-Pacific, this court recognized that continuing course of action was allowed. [00:08:23] Speaker 02: It looked at 9772, and it looked at the face of that proclamation, which is precisely what any court should do. [00:08:29] Speaker 02: It shouldn't go beyond the face of the proclamation. [00:08:31] Speaker 02: It shouldn't go into the president's fact finding. [00:08:33] Speaker 02: And it said, this makes sense. [00:08:35] Speaker 02: It looks like it's a continuing course of action. [00:08:37] Speaker 02: All we're asking is for the court here to do the exact same thing that it did in Trans-Pacific, which is to look at the face of proclamation 9980 [00:08:45] Speaker 02: and make the determination on the face of that document, whether it's consonant with the continuing course of action laid out in Proclamation 97-05. [00:08:51] Speaker 05: Even though the period of time between the original and the at-issue one is substantially longer in this case. [00:08:59] Speaker 02: Correct, because even in Trans-Pacific, the court didn't go into the question of what information the secretary got or the secretary conveyed to the president in terms of that updated information. [00:09:09] Speaker 02: Here, I think the case is even better because the president tells us precisely what information he got. [00:09:14] Speaker 02: And so I think my friends on the other side maybe want to question the veracity of that information. [00:09:18] Speaker 02: But again, those sorts of questions are out of bounds according to this court's precedent in Zilfab Solar and Florsheim and George Bush, cases like that. [00:09:29] Speaker 04: I understand that some of the broad language in Trans-Pacific and interpreting the statute and how those time provisions aren't necessarily time limits in the way that prime source would argue or Trans-Pacific argued. [00:09:45] Speaker 04: But just listening to you, it does sound like the government thinks the president's authority here under a continuing course of action is essentially boundless. [00:09:58] Speaker 04: Is there something you can say to make me feel better? [00:10:00] Speaker 04: To believe that the government believes there are, in fact, some hard boundaries somewhere in terms of the president's [00:10:07] Speaker 04: authority to take action, I don't know, decades and decades after the original process? [00:10:14] Speaker 02: I understand that concern, Judge Shen. [00:10:15] Speaker 02: I think you asked the same question in the Trans-Pacific case. [00:10:18] Speaker 02: I think Trans-Pacific lays out pretty decent guardrails for this case. [00:10:22] Speaker 02: You know, again, the test is whether it's in step with what the president did in the initial implementation of his course of action and whether it fulfills that implementation objective. [00:10:30] Speaker 02: And then it said, you know, let's take each subsequent proclamation on a case-by-case basis. [00:10:35] Speaker 02: As to concerns about staleness, I mean, what I'd point back to is the petroleum products tariff proclamations, right? [00:10:40] Speaker 02: So in that case, we have over a 16-year span, 1959 and 1974, [00:10:45] Speaker 02: 15 years, man. [00:10:46] Speaker 02: 26 adjustments. [00:10:48] Speaker 02: So really, the period of staleness has to be read against the backdrop of what we're talking about and what the president's course of action is. [00:10:56] Speaker 02: So here, I can't say there's going to be a defined time limit. [00:10:58] Speaker 02: The president said, we want to reach an 80% domestic capacity utilization rate. [00:11:03] Speaker 02: This proclamation comes 21 months after proclamation 9705. [00:11:07] Speaker 02: We know throughout the other proclamations, the president is tracking the data and trying to be faithful to what he said his plan was. [00:11:14] Speaker 02: So those staleness concerns don't apply here. [00:11:16] Speaker 02: And I think if we're thinking about how broad the statute extends, it's probably pretty broad if we're looking at history. [00:11:22] Speaker 00: It could cover decades. [00:11:25] Speaker 00: think about any circumstances where there wouldn't be a continuing course of action, either because the secretary hasn't reported something to the president or because it goes outside the bounds of the initial proclamation? [00:11:38] Speaker 02: I could think of proclamations. [00:11:41] Speaker 02: This came up during one of my moods. [00:11:43] Speaker 02: If there was a steel report and the president said, I want to cover neckties, OK, that's clearly out of bounds. [00:11:48] Speaker 02: There were probably closer questions, I think, [00:11:51] Speaker 02: Maybe, and I'm not even sure this would totally qualify, but if there was some report that said we need to meet a 50% domestic capacity utilization rate, and 50 years later the president issues a proclamation saying, I'd rather see 100. [00:12:04] Speaker 02: There's probably a much better argument there that that's not exactly in line with the stated implementation objective. [00:12:10] Speaker 02: So there could be that issue. [00:12:11] Speaker 02: But I think the cases just have to be taken on a case-by-case basis, which is what Trans-Pacific recognized. [00:12:18] Speaker 02: And so when we're applying the principles laid out in Trans-Pacific to this particular case, it doesn't seem to raise the concerns that Trans-Pacific specified in its decision. [00:12:30] Speaker 02: If there are no further questions, I'll see the rest of my time and reserve it for rebuttal. [00:12:34] Speaker 02: Thank you. [00:12:36] Speaker 05: Thank you. [00:12:37] Speaker 05: Mr. Caritas? [00:12:38] Speaker 03: Caritas. [00:12:41] Speaker 03: Good morning, Your Honors, and may it please the Court. [00:12:44] Speaker 03: My name is Andrew Karidis of Parkins Couey, appearing today on behalf of Oman Fasteners in Hudig. [00:12:50] Speaker 03: It had been my intention to focus on the text and constitutional bounds of 232 and for my co-counsel, Jeff Grimson, to primarily address the Court's decision in Trans-Pacific and why it is inapplicable to Proclamation 9980 and this case. [00:13:05] Speaker 03: Having learned of the constitution of this panel this morning, I realized that my plans in that case may have been somewhat naive. [00:13:12] Speaker 03: And I am, of course, happy to answer any of the court's questions, including involving the Trans-Pacific opinion. [00:13:19] Speaker 03: Aside from naked presidential fiat, Proclamation 9980 bears no relationship to either the 2018 Steele Report issued by the Secretary of Commerce or Proclamation 9705, where the president [00:13:33] Speaker 03: announced his plan or course of action to address the threat identified by the Secretary of Commerce in the Steele Report. [00:13:41] Speaker 03: However, as the government was quick to point out in its briefing, the court cannot review the wisdom, efficacy, or rationale of Proclamation 9980. [00:13:50] Speaker 03: This is true even though there was indisputably no fact finding linking the imports of the smattering of Steele derivative products that were included in Proclamation 9980 [00:14:03] Speaker 03: to U.S. [00:14:03] Speaker 03: steel capacity utilization. [00:14:06] Speaker 03: In fact, as we pointed out in our brief, the included derivatives amounted to a minuscule amount of total U.S. [00:14:15] Speaker 03: imports of steel derivative products, approximately 1% of all U.S. [00:14:20] Speaker 03: steel products. [00:14:22] Speaker 04: And less than 1%... [00:14:25] Speaker 04: I don't know, show his work in the proclamation and do some kind of mathematical justification? [00:14:32] Speaker 04: I don't remember us requiring that or in Trans-Pacific when the president decided to up the tariffs for turkey imports from 25 to 50. [00:14:43] Speaker 03: Your Honor, the president does not have to show his work. [00:14:45] Speaker 03: In fact, the president, there is very little that the president has to do under the statute other than follow the procedural limitations of the statute. [00:14:55] Speaker 03: Really, it is the secretary. [00:14:56] Speaker 04: We're not supposed to review presidential proclamations for substantial evidence, right? [00:15:02] Speaker 03: Exactly, Your Honor. [00:15:03] Speaker 03: And that's precisely. [00:15:04] Speaker 04: So I guess what I'm wondering is, I'm not sure where this argument gets you. [00:15:10] Speaker 03: Your Honor, the reason for the argument is that precisely because this court cannot question the substantive decision making of the president, it cannot [00:15:21] Speaker 03: question either the president's decision to take an action under Section 232 or the particular action that the president determines to take, the only effective review of presidential action and the only way to cabin the president's authority under the delegation of power from Congress are the procedural constraints under Section 232. [00:15:41] Speaker 03: If those procedural constraints are nullified, essentially the president has writ large [00:15:47] Speaker 03: to regulate trade and commerce, which are explicitly provided to powers of Congress under the Constitution, not the president. [00:15:57] Speaker 03: And specifically, the Supreme Court stated in Algonquin that Section 232 does not simply authorize any action the president might take, as long as it has even a remote impact on imports. [00:16:11] Speaker 03: And this court in Trans-Pacific stated its intent to prohibit presidential action that made no sense [00:16:17] Speaker 03: except on premises that depart from the secretary's finding and the steel report. [00:16:22] Speaker 03: That is precisely what we have here, Your Honors. [00:16:25] Speaker 03: There was no fact finding linking these derivative articles and their imports to steel capacity utilization. [00:16:34] Speaker 03: As Your Honor pointed out when opposing counsel was arguing, the steel report did not have any reference to derivative articles. [00:16:44] Speaker 03: It's folks only to primary articles of steel and how imports of those articles were endangering the domestic steel industry. [00:16:54] Speaker 03: Similarly, Proclamation 9705 did not speak to derivative articles at all, but focused on primary product articles of steel and how those imports of those articles were harming the domestic steel industry. [00:17:10] Speaker 03: and how placing limits on imports of those articles would allow the threat to the domestic steel industry to be remedied. [00:17:17] Speaker 05: I don't recall exactly, but in the subsections, I think it's B that discusses what the secretary's job is as a threshold to any further action. [00:17:31] Speaker 05: Is there any mention of, essentially, [00:17:36] Speaker 05: the remedy question. [00:17:39] Speaker 05: I thought that the secretary's job is to determine if there is a threat to national security. [00:17:45] Speaker 05: And the secretary said, yeah, there is if so much steel is coming into the United States that the domestic steel makers are under-utilizing [00:17:56] Speaker 05: And capacity is under utilization will create a problem. [00:18:00] Speaker 05: But remedy is left entirely to the president. [00:18:03] Speaker 05: Have I got that wrong? [00:18:05] Speaker 03: No, Your Honor, you're correct. [00:18:07] Speaker 03: I'm sorry. [00:18:07] Speaker 03: I think there's an issue with the timer. [00:18:09] Speaker 03: I think the time kept counting down from opposing counsel's argument, because I noticed there are only two minutes left. [00:18:16] Speaker 03: And I know I haven't been speaking for 13 minutes. [00:18:19] Speaker 03: Oh, really? [00:18:21] Speaker 03: All right. [00:18:21] Speaker 03: I apologize. [00:18:22] Speaker 03: Because you have an eight and seven split. [00:18:24] Speaker 03: Oh, OK, so it takes that into account. [00:18:26] Speaker 03: Thank you. [00:18:27] Speaker 03: I apologize. [00:18:28] Speaker 03: Your Honor, you're absolutely correct. [00:18:30] Speaker 05: So why is it, even as a statutory matter, a sound view, which I think you're suggesting that the question of which articles need to be part of the remedy for the problem found by the secretary, that that question itself has to be one that the secretary addresses? [00:18:54] Speaker 03: Your Honor, the Secretary does not have to address that question. [00:18:58] Speaker 03: The President, when he decided to declare his courts or plan of action pursuant to the Steele Report, was free to declare a plan of action that diverged from the recommendations of the Secretary in the Steele Report, which, as Your Honor correctly points out, the Secretary was not required to provide. [00:19:17] Speaker 03: But that is simply not what the president did. [00:19:19] Speaker 00: Council, so you think there'd be a different outcome had the initial proclamation referred to derivative articles and a potential treatment of derivative articles down the road? [00:19:32] Speaker 00: Is that what you're saying? [00:19:33] Speaker 03: Yes, Your Honor. [00:19:34] Speaker 03: I think there isn't a question that if Proclamation 9705 had said, it is my intention to impose duties on these primary articles of steel [00:19:45] Speaker 03: and these derivative articles of steel, then under this course decision of Trans-Pacific, that would be the end of the case. [00:19:53] Speaker 00: Why isn't it just a little bit more for the secretary then to come around? [00:19:57] Speaker 00: The president did say that the secretary should continue to monitor the situation. [00:20:03] Speaker 00: And then the secretary does so, and then lets the president know there's now a new problem with an increase in derivative imports. [00:20:13] Speaker 03: Well, Your Honor, first of all, even the note in Proclamation 9705 asking the Secretary of Commerce to continue to monitor the situation says nothing about derivative articles. [00:20:26] Speaker 03: The only mention of derivative articles in Proclamation 9705 is in a block quote of the statutory text. [00:20:35] Speaker 03: None of the paragraphs wherein the President discusses his plan of action [00:20:42] Speaker 03: in order to remedy the threat, involve any discussion of derivative articles, nor do any of the paragraphs where the president posits what may need to happen in the future. [00:20:54] Speaker 00: Given the language of the statute, is it surprising that a president would address derivative articles? [00:21:05] Speaker 00: Doesn't the statute refer to derivative articles? [00:21:08] Speaker 03: Well, Your Honor, the President was announcing his plan of action. [00:21:11] Speaker 03: The President has discretion to choose that plan of action, including discretion to determine whether that plan of action does or does not include derivative articles. [00:21:21] Speaker 03: The question for this Court today is, does Section 232 require the President to announce his plan of action or his course of action [00:21:31] Speaker 03: within the timeframe provided by the statute, which then would allow Congress meaningful oversight over the president's use of Section 232 through the procedure set out by the statute, including the notification provision that requires the president to provide Congress with reasoning for his course of action within 30 days. [00:21:52] Speaker 05: Or you have used more than one minute beyond your allocated time. [00:21:57] Speaker 05: Unless you have an agreement with your co-counsel, I think you're now eating into his time. [00:22:03] Speaker 03: If there are no further questions for me, I'm happy to see my time to go home. [00:22:09] Speaker 03: Stop eating into co-counsel's time. [00:22:10] Speaker 03: Thank you, Your Honors. [00:22:16] Speaker 01: May it please the court, Your Honor, it's Jeff Grimson for Plenifaculty Prime Source. [00:22:20] Speaker 01: I have seven minutes here to cover some ground, some of which will overlap, I think, with Mr. Karidis. [00:22:27] Speaker 01: But first, I wanted to address a couple of, I guess I'll call them housekeeping points. [00:22:33] Speaker 01: First is, as to whether the government [00:22:35] Speaker 01: disclaimed any further fact finding. [00:22:38] Speaker 01: I refer the court to the appendix, Joint Appendix 1749, which was a joint status report filed with the Court of International Trade, where when given the opportunity to provide facts, something that met the requirements of a report beyond what was in Proclamation 9980 itself, the government declined and said, we appreciate the opportunity. [00:23:01] Speaker 01: to provide more information. [00:23:03] Speaker 01: I am going to paraphrase now, because this is long. [00:23:06] Speaker 01: But they said that defendant's position continues to be that the procedural preconditions for the issuance of Proclamation 9980 were met by the secretary's 2018 steel report. [00:23:18] Speaker 01: That's one thing. [00:23:19] Speaker 01: So on the question of the possibility of remand, I don't think there are more facts to find. [00:23:25] Speaker 01: The government council referenced the many revisions to original proclamation 3279. [00:23:34] Speaker 01: And indeed, that was persuasive to the Supreme Court in Algonquin and to this court in Trans-Pacific, where Judge Baker below referred to 13 additional modifications of proclamations on top of the 26 that the Algonquin court had in mind. [00:23:55] Speaker 01: mentioned that those all were modifications of the original 3279 of President Eisenhower, which found that, quote, [00:24:05] Speaker 01: crude oil and the principal crude oil derivatives and products are being imported in such quantities and under such circumstances as to threaten to impair the national security," unquote. [00:24:16] Speaker 01: So all those modifications have little relevance here, even though they dealt with derivative oil products, because derivative oil products were part of the original threat finding. [00:24:27] Speaker 01: And that's where we part ways with the situation in Trans-Pacific. [00:24:31] Speaker 01: which I'll now discuss. [00:24:33] Speaker 01: So Trans-Pacific does not govern this case, and the government's incorrect that it resolves that case. [00:24:39] Speaker 01: The majority took pains to limit its findings at 1310, 1323, and 1332, most particularly that the modification on Turkish imports related to, quote, the particular finding of threat at issue. [00:24:57] Speaker 01: And this is where we get into why the derivative articles were actually mentioned in 9705. [00:25:02] Speaker 05: Can I just ask, is the theory of the relationship of the derivatives to the [00:25:13] Speaker 05: originally tariffed articles that the point is to keep American production of steel sufficiently high compared to utilization capacity. [00:25:26] Speaker 05: If a bunch of foreign steel is coming in, that's a problem. [00:25:32] Speaker 05: But if we impose tariffs and those foreign steel makers now don't have quite the market in the US for their steel because of the tariffs, [00:25:41] Speaker 05: They look elsewhere to sell their steel to foreign steel nails makers, turn that steel into nails. [00:25:51] Speaker 05: The nails come in without the tariffs, thereby making it more difficult for the US steel makers to produce steel for the making of nails. [00:26:04] Speaker 05: Have I understood the basic theory? [00:26:07] Speaker 05: And that doesn't seem very complicated. [00:26:10] Speaker 01: The theory is not complicated, and it would not have been difficult for the president to actually comply with the law and have a new finding and a report from the Secretary of Commerce. [00:26:20] Speaker 01: That finding, the finding by the Secretary of Commerce of a threat, was the key in Algonquin, the key clear precondition, as Justice Marshall called it, why there wasn't a delegation problem. [00:26:33] Speaker 01: And in this court, in Trans-Pacific, the court found that [00:26:37] Speaker 01: the modification sufficiently linked back to the threat that was identified. [00:26:42] Speaker 01: So the economics theory may be perfectly valid. [00:26:47] Speaker 01: I would take another view of it and say by the government arguing that there was a loophole, they're essentially conceding that derivative articles were actually not covered by 9705. [00:27:00] Speaker 01: If there was a loophole, it was because something was not covered. [00:27:03] Speaker 01: Was it difficult? [00:27:04] Speaker 01: Would it be onerous? [00:27:06] Speaker 01: Which judge made the below? [00:27:07] Speaker 05: I'm sorry. [00:27:07] Speaker 05: When you mean not covered, you mean there were no tariffs on them? [00:27:11] Speaker 05: That's not disputed, right? [00:27:13] Speaker 01: It's not disputed, but it was also not part of the threat identified. [00:27:17] Speaker 01: And if I could refer the court to what the president's finding [00:27:22] Speaker 01: paragraph 11 of 9705, where the President said, and this is at appendix page 164, kind of in the end of the top paragraph, it is my judgment that the tariff imposed by this proclamation is necessary and appropriate to adjust imports of steel articles so that such imports will not threaten to impair the national security, as defined in section 232. [00:27:48] Speaker 01: The such imports and the steel articles [00:27:52] Speaker 01: There's no dispute here that that did not cover derivative articles. [00:27:57] Speaker 01: OK, so in Trans-Pacific, when the court found that it didn't depart from constitutional or statutory grounds to modify duties on imports of Turkish steel five months after the original action, where Turkish steel was identified as part of the threat, there was a sufficient nexus there. [00:28:18] Speaker 01: We don't have that here. [00:28:20] Speaker 01: The only word derivative comes up [00:28:22] Speaker 01: and essentially a copy and paste of the statutory language in the original plan. [00:28:27] Speaker 01: And that's why, if there is no statutory bound here for what the government can do, our position is that we create a constitutional problem if this is permitted. [00:28:42] Speaker 05: And you don't think that the statute essentially makes the necessary connection of derivatives to the underlying article. [00:28:54] Speaker 05: There's a finding in B, which B doesn't talk about derivatives or even the particular mechanism. [00:29:00] Speaker 05: It says there's a finding when certain articles are threatening national security for a particular reason, which is underutilization. [00:29:08] Speaker 05: And then the statute says, when there is that finding that doesn't mention the derivatives, the president nevertheless can address derivatives because of the obvious tie between derivatives and the article. [00:29:22] Speaker 01: I see my time has expired. [00:29:23] Speaker 01: Yeah, please, yeah. [00:29:26] Speaker 01: If the president had chosen to take action against steel derivatives in original 9705, I would concede, as my co-counsel did, we probably wouldn't be standing here. [00:29:36] Speaker 01: We would be in the Trans-Pacific. [00:29:38] Speaker 01: school of thought of a modification of an original adjustment. [00:29:41] Speaker 05: So your argument really comes down to the fact that... This is a new action. [00:29:45] Speaker 05: The opportunity to exercise the derivative authority does lapse when not exercised initially, even if all that the president has to do is adopt a plan of action with [00:30:01] Speaker 05: options open. [00:30:03] Speaker 01: Exactly right. [00:30:04] Speaker 01: And if you look at the proclamation underlying the Algonquin case, 4341, [00:30:12] Speaker 01: That was the proclamation issued after the Secretary of, I think it was Treasury in that time, did make a finding and issue a report, even though the Saxby memo that this court was quite interested in, Trans-Pacific, said the president did not have to do. [00:30:30] Speaker 01: He did it in 4341. [00:30:31] Speaker 01: He issued a new report and a new finding. [00:30:37] Speaker 04: I guess an alternative reading of proclamation 9705 is, [00:30:42] Speaker 04: Based on the secretary's report, I see that there is a national security threat. [00:30:45] Speaker 04: And there's an implementation objective, in my view, which is to get to 80% capacity of domestic steel plant utilization. [00:30:56] Speaker 04: And so now I'm going to do what I think needs to be done to get there. [00:31:01] Speaker 04: And here's my first step in taking that action. [00:31:06] Speaker 04: And in that sense, the president has perhaps reserved all statutory authority to him to make subsequent implementation steps, adjustments in future proclamations. [00:31:25] Speaker 01: Our view, Your Honor, is in taking the court's rental car analogy in Trans-Pacific, [00:31:32] Speaker 01: The president starts with zero constitutional authority to impose duties on imports. [00:31:38] Speaker 01: He only gets what Congress gives. [00:31:40] Speaker 01: And in this case, it wasn't the checking out of the rental car. [00:31:43] Speaker 01: It was how much fuel in the rental car did Congress give the president to keep on driving. [00:31:48] Speaker 01: That expired after the time limits. [00:31:50] Speaker 01: And I'm not going to re-argue Trans-Pacific, but I'll say that the president had a limited time opportunity to identify the threat and act promptly, which is what Congress wanted. [00:31:59] Speaker 01: He did identify the threat. [00:32:01] Speaker 01: It did not include steel derivative articles. [00:32:03] Speaker 01: It would be not onerous or irrational to require the president to commission a new report from the secretary of Congress. [00:32:11] Speaker 01: It happened in only 19 days in Proclamation 4341, beginning to end. [00:32:16] Speaker 01: That was the proclamation underlying the Algonquin case. [00:32:20] Speaker 01: It's not difficult to require the president to go through the procedural steps that are the hook to the statute, that are the hook to the intelligible principle. [00:32:30] Speaker 01: And because of this, Your Honor, we have a lot of problems with what happened. [00:32:36] Speaker 01: Most of our claims were shut down by the court below. [00:32:39] Speaker 01: But we're here on a statutory issue. [00:32:42] Speaker 01: And we think that the president clearly acted out of bounds here and out of the context of a plan that he had announced. [00:32:52] Speaker 01: Thank you very much. [00:32:55] Speaker 05: Thank you very much. [00:32:55] Speaker 05: Mr. O, five minutes. [00:32:58] Speaker 05: We'll have five minutes to come close to evening things out if you need it. [00:33:02] Speaker 02: I'll be very brief. [00:33:04] Speaker 02: The trial court's decision should be overturned. [00:33:06] Speaker 02: The baseline for the trial court's holding runs contrary to this court's holding in Trans-Pacific. [00:33:10] Speaker 02: And without that underlying baseline, the trial court's decision is incorrect. [00:33:14] Speaker 02: First, the text. [00:33:15] Speaker 02: Nothing in the statute says that these deadlines discussed in subpart C1 are strict, coercive, or mandatory, or consequential. [00:33:23] Speaker 02: consequentially coercive. [00:33:25] Speaker 02: It would be weird to read subpart C1 of the statute, those timelines, as not applying to the articles, but then also applying them to their derivatives. [00:33:33] Speaker 02: We think it would really create some disjointed interpretation principles in the language of subpart C1. [00:33:38] Speaker 02: If the time limit doesn't apply to the articles, it also shouldn't apply to the derivatives. [00:33:41] Speaker 04: What about the other side's argument that [00:33:44] Speaker 04: President has broad authority under the statute, but then elected to use that authority in a somewhat limited manner, focusing only on articles. [00:33:56] Speaker 04: And then from that jumping off point, anything that the president wanted to do in a continuing course of action was limited to the scope of what was articulated in the original proclamation, in this particular case, articles only. [00:34:11] Speaker 02: That could probably be true in a general sense. [00:34:13] Speaker 02: I don't think it applies here, though. [00:34:14] Speaker 02: It could be true in the general sense if, for example, the president never announced a continuing course of action. [00:34:19] Speaker 02: He just said, I'm going to impose my tariff and doesn't mention anything about a continuing course of action. [00:34:25] Speaker 02: I think you'd have a much stronger case than if the president came down the line and tried to do something else and said, oh, that didn't work. [00:34:30] Speaker 02: I actually wanted to reserve this right. [00:34:32] Speaker 02: You'd have a much better case for my friends on the other side. [00:34:35] Speaker 02: That's not this case, though, because this case is exactly as you would probably argue against that, though. [00:34:41] Speaker 05: Presumably, you would find an implicit reservation of modification. [00:34:46] Speaker 05: Never mind. [00:34:47] Speaker 02: No, Judge Taranto, I think under this court's decision in transit. [00:34:51] Speaker 02: It would be necktie doctrine. [00:34:54] Speaker 02: Well, I think there are a lot of interesting hypotheticals we can ask about how far the doctrine stretches. [00:34:58] Speaker 02: I think there is an argument to be made. [00:35:00] Speaker 02: I'm not making it here. [00:35:01] Speaker 02: But there is an argument to be made that those time limits wouldn't even apply if the president didn't reserve for himself that right. [00:35:07] Speaker 02: But we don't have that case here. [00:35:08] Speaker 02: What we have here is one where the president did take a first step, did announce a continued course of action, specified what his statutory power was, and we think reserved for himself the right to later make adjustments, including on derivative articles. [00:35:21] Speaker 02: And again, when we're talking about the time limits here, that time limit argument has already been rejected by this court in Trans-Pacific. [00:35:27] Speaker 02: It would be weird to apply it to derivatives, but then not apply it to articles when those two are taken together as a noun phrase, articles and their derivatives. [00:35:36] Speaker 02: So we think that would do a little bit of violence to the text of the statute. [00:35:40] Speaker 02: Next is the context. [00:35:41] Speaker 02: When we read the statute as a whole, the manifest purpose of the statute is to address the issues of national security. [00:35:46] Speaker 02: And it says, Trans-Pacific says, don't read subpart C1 as impeding the statutory objective. [00:35:51] Speaker 02: Reading that language in subpart C1 in such a narrow and categorical way, we think, would actually obstruct the statutory purpose, which is exactly what Trans-Pacific countenance is against. [00:36:02] Speaker 02: Then we have history. [00:36:03] Speaker 02: Transpacific referred back to the history of what these proclamations were doing, including the petroleum products cases where the president announced a tariff imposition on articles, petroleum products, and then a decade later, over a decade later, adjusted that tariff proclamation to start covering derivatives. [00:36:21] Speaker 02: That was perfectly acceptable under the previous iteration of the statute. [00:36:24] Speaker 02: Transpacific recited the previous iteration of the statute to indicate that these time limits don't change the calculus. [00:36:31] Speaker 02: And so we think the same reasoning would apply in this case. [00:36:34] Speaker 02: My friend's argument on the other side in it. [00:36:36] Speaker 05: Do you recall in the petroleum situation what the underlying finding of the threat to national security was that would be a counterpart to the finding here that domestic capacity is underutilized, and if it continues to be underutilized, that a bunch of the steel plants will shut down? [00:37:02] Speaker 02: I will confess that I don't recall. [00:37:04] Speaker 02: I apologize. [00:37:05] Speaker 02: The nutshell argument for my friends on the other side is I think they're trying to elevate this [00:37:10] Speaker 02: rigid sense of formalism over substance. [00:37:12] Speaker 02: They're saying you didn't expressly reserve the right in proclamation 97805 to later adjust for rude articles. [00:37:18] Speaker 02: We would argue the president has done that. [00:37:20] Speaker 02: He recognized his statutory power. [00:37:22] Speaker 02: He implemented a course of action. [00:37:24] Speaker 02: He said what he was doing as to articles was his first step. [00:37:27] Speaker 02: And then he told the secretary to continue to monitor the situation and that he would make adjustments as necessary. [00:37:32] Speaker 02: We think the trial court reversibly erred when it said the president couldn't do that. [00:37:37] Speaker 02: We respectfully request that this court overturn the trial court's judgment. [00:37:41] Speaker 05: Thank you. [00:37:43] Speaker 05: Thanks to all counsel and cases submitted.