American Institute for Int'l Steel, Inc. v. United States ( 2019 )


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  •                                      Slip Op. 19-37
    UNITED STATES COURT OF INTERNATIONAL TRADE
    AMERICAN INSTITUTE FOR
    INTERNATIONAL STEEL, INC., SIM-TEX,
    LP, and KURT ORBAN PARTNERS, LLC,
    Plaintiffs,                                Before: Claire R. Kelly, Jennifer
    Choe-Groves & Gary S. Katzmann,
    v.                                               Judges
    UNITED STATES and KEVIN K.                       Court No. 18-00152
    MCALEENAN, Commissioner, United
    States Customs and Border Protection,
    Defendants.
    OPINION
    [Denying Plaintiffs’ motion for summary judgment seeking a declaration that section 232
    of the Trade Expansion Act of 1962 contains an impermissible delegation of legislative
    authority and granting Defendants’ motion for judgment on the pleadings. Judge
    Katzmann files a separate dubitante opinion.]
    Dated: March 25, 2019
    Alan B. Morrison, George Washington University Law School, Donald Bertrand Cameron
    and Rudi Will Planert, Morris, Manning & Martin, LLP, of Washington, DC, and Gary N.
    Horlick, Law Offices of Gary N. Horlick, of Washington, DC argued for plaintiffs, American
    Institute for International Steel, Inc. a/k/a AIIS, Sim-Tex, LP, and Kurt Orban Partners,
    LLC. With them on the brief were Steve Charnovitz, George Washington University Law
    School, Julie Clark Mendoza and Brady Warfield Mills, Morris, Manning & Martin, LLP, of
    Washington, DC, and Timothy Lanier Meyer, Vanderbilt University Law School.
    Tara Kathleen Hogan, Assistant Director, Commercial Litigation Branch, Civil Division,
    U.S. Department of Justice, of Washington, DC, and Jeanne E. Davidson,
    Director, Commercial Litigation Branch, Civil Division, U.S. Department of Justice, of
    Washington, DC, argued for defendants. With them on the brief were Joshua E. Kurland
    and Stephen C. Tosini, Attorneys, and Joseph H. Hunt, Assistant Attorney General.
    Court No. 18-00152                                                                          Page 2
    Kelly, Judge: Before the court are American Institute for International Steel, Inc.,
    Sim-Tex LP, and Kurt Orban Partners, LLC’s (“Plaintiffs”) motion for summary judgment
    and Defendants’ motion for judgment on the pleadings, and their respective supporting
    memoranda. See [Plaintiffs’] Mot. Summary J. & Mem. Supp., July 19, 2018, ECF No.
    20 (“Pls.’ Br.”); Defs.’ Mot. J. Pleadings & Opp’n Pls.’ Mot. Summary J., Sept. 14, 2018,
    ECF No. 26 (“Defs.’ Opp’n Br.”). Plaintiffs seek declaratory and injunctive relief against
    enforcement of section 232 of the Trade Expansion Act of 1962, as amended 19 U.S.C.
    § 1862 (2012)1 (“section 232”), on the grounds that, on its face, it constitutes an improper
    delegation of legislative authority in violation of Article I, Section 1 of the U.S. Constitution
    and the doctrine of separation of powers.2 See Pls.’ Br. at 16–42; see also U.S. Const.
    art. I, § 1. Defendants argue that Plaintiffs’ claim is foreclosed by Fed. Energy Admin. v.
    Algonquin SNG Inc., where the Supreme Court stated that section 232’s standards are
    “clearly sufficient to meet any delegation doctrine attack.” Defs.’ Opp’n Br. at 13 (quoting
    Fed. Energy Admin. v. Algonquin SNG Inc., 
    426 U.S. 548
    , 559 (1976)).3 Alternatively,
    Defendants argue that the statutory scheme “amply satisfies the nondelegation doctrine.”
    
    Id. at 14.
    1Further citations to the Trade Expansion Act of 1962, as amended, are to the relevant provisions
    of the United States Code, 2012 edition.
    2Basrai Farms appears as amicus curiae in this action and filed a brief in support of Plaintiffs’
    position and in opposition to Defendants’ position. See generally Br. Basrai Farms Opp’n Defs.’
    Mot. J. Pleadings & Supp. Pls.’ Mot. Summary J., Oct. 5, 2018, ECF No. 39.
    3American Iron and Steel Institute (“AISI”) and Steel Manufacturers Association (“SMA”) appear
    as amici curiae in this action and filed a brief in opposition to Plaintiffs’ position. See generally
    Br. Amici Curiae [AISI] & [SMA] Opp’n Pls.’ Mot. Summary J., Sept. 14, 2018, ECF No. 30.
    Court No. 18-00152                                                                     Page 3
    BACKGROUND
    Section 232 authorizes the Secretary of Commerce to commence an investigation
    “to determine the effects on the national security of imports” of any article. 19 U.S.C.
    § 1862(b)(1)(A). The Secretary of Commerce must “provide notice to the Secretary of
    Defense” of the investigation’s commencement and, in the course of the investigation,
    “consult with the Secretary of Defense regarding the methodological and policy questions
    raised[.]” 19 U.S.C. § 1862(b)(1)(B); 19 U.S.C. § 1862(b)(2)(A)(i). The Secretary of
    Commerce must also “(ii) seek information and advice from, and consult with, appropriate
    officers of the United States, and (iii) if it is appropriate and after reasonable notice, hold
    public hearings or otherwise afford interested parties an opportunity to present
    information and advice relevant to such investigation.” 19 U.S.C. § 1862(b)(2)(A)(ii)–(iii).
    The Secretary of Defense shall also, if requested by the Secretary of Commerce, provide
    to the Secretary of Commerce “an assessment of the defense requirements of any article
    that is the subject of an investigation conducted under this section.”             19 U.S.C.
    § 1862(b)(2)(B).
    Upon the investigation’s completion or within the timeline provided, the Secretary
    of Commerce must provide the President with a report of the investigation’s findings,
    advise on a course of action, and if the Secretary determines that the article under
    investigation “is being imported into the United States in such quantities or under such
    circumstances as to threaten to impair the national security,” advise the President of the
    threat. 19 U.S.C. § 1862(b)(3)(A).
    Court No. 18-00152                                                                     Page 4
    After receiving the Secretary of Commerce’s report, if the President concurs with
    the finding that a threat exists, he shall “determine the nature and duration of the action
    that, in the judgment of the President, must be taken to adjust the imports of the article
    and its derivatives so that such imports will not threaten to impair the national security.”
    19 U.S.C. § 1862(c)(1)(A)(ii).
    Additionally,
    By no later than the date that is 30 days after the date on which the
    President makes any determinations under paragraph (1), the President
    shall submit to the Congress a written statement of the reasons why the
    President has decided to take action, or refused to take action, under
    paragraph (1).
    19 U.S.C. § 1862(c)(2).
    Finally, section (d) lists the following factors that the Secretary and the President should
    consider when acting pursuant to the statute:
    (d) Domestic production for national defense; impact of foreign competition
    on economic welfare of domestic industries
    For the purposes of this section, the Secretary and the President shall, in
    the light of the requirements of national security and without excluding other
    relevant factors, give consideration to domestic production needed for
    projected national defense requirements, the capacity of domestic
    industries to meet such requirements, existing and anticipated availabilities
    of the human resources, products, raw materials, and other supplies and
    services essential to the national defense, the requirements of growth of
    such industries and such supplies and services including the investment,
    exploration, and development necessary to assure such growth, and the
    importation of goods in terms of their quantities, availabilities, character, and
    use as those affect such industries and the capacity of the United States to
    meet national security requirements. In the administration of this section,
    the Secretary and the President shall further recognize the close relation of
    the economic welfare of the Nation to our national security, and shall take
    into consideration the impact of foreign competition on the economic welfare
    of individual domestic industries; and any substantial unemployment,
    Court No. 18-00152                                                                    Page 5
    decrease in revenues of government, loss of skills or investment, or other
    serious effects resulting from the displacement of any domestic products by
    excessive imports shall be considered, without excluding other factors, in
    determining whether such weakening of our internal economy may impair
    the national security.
    19 U.S.C. § 1862(d).
    JURISDICTION AND STANDARD OF REVIEW
    This Court has jurisdiction under 28 U.S.C. § 1581(i)(2),(4) (2012). Summary
    judgment is appropriate “if the movant shows that there is no genuine dispute as to any
    material fact and the movant is entitled to judgment as a matter of law.” USCIT R. 56(a).
    “Judgment on the pleadings is appropriate where there are no material facts in dispute
    and the party is entitled to judgment as a matter of law.” Forest Labs, Inc. v. United
    States, 
    476 F.3d 877
    , 881 (Fed. Cir. 2007) (citation omitted). Plaintiffs challenge the
    constitutionality of section 232. Compl. ¶ 11, June 27, 2018, ECF No. 10; Pls.’ Br. at 3,
    16–42. The issue of a statute’s constitutionality is a question of law appropriate for
    summary disposition, which the court reviews “completely and independently.” See, e.g.,
    Demko v. United States, 
    216 F.3d 1049
    , 1052 (Fed. Cir. 2000).
    DISCUSSION
    Article I, Section I of the U.S. Constitution provides that “all legislative Powers
    herein granted shall be vested in a Congress of the United States.” U.S. Const. art. I,
    § 1. The Supreme Court established the standard by which delegations are to be judged
    in J.W. Hampton, Jr., & Co. v. United States, 
    276 U.S. 394
    , 409 (1928), explaining that
    “[i]f Congress shall lay down by legislative act an intelligible principle to which the person
    Court No. 18-00152                                                                         Page 6
    or body authorized to fix such rates is directed to conform, such legislative action is not a
    forbidden delegation of legislative power.”
    Since 1935 no act has been struck down as lacking an intelligible principle. See
    Panama Refining Co. v. Ryan, 
    293 U.S. 388
    (1935); A.L.A. Schechter Poultry Corp. v.
    United States, 
    295 U.S. 495
    (1935). The Supreme Court has upheld delegations of
    authority as sufficient to guide the executive branch where they contained standards such
    as: regulating broadcast licensing as “public interest, convenience, or necessity” require,
    National Broadcasting Co. v. United States, 
    319 U.S. 190
    , 225–26 (1943); ensuring that
    a company’s existence in a holding company does not “unduly or unnecessarily
    complicate the structure” or “unfairly or inequitably distribute voting power among security
    holders[,]” American Power & Light Co. v. SEC, 
    329 U.S. 90
    , 104–05 (1946); and setting
    nationwide air-quality standards limiting pollution to the level required “to protect the
    public health.” Whitman v. Am. Trucking Ass’ns, Inc., 
    531 U.S. 457
    , 472 (2001). Most
    importantly for the challenge here, in Algonquin, the Supreme Court found that section
    232 “easily” met the intelligible principle standard because
    [i]t establishes clear preconditions to Presidential action[,] —[i]nter alia, a
    finding by the Secretary of the Treasury that an “article is being imported
    into the United States in such quantities or under such circumstances as to
    threaten to impair the national security.” Moreover, the leeway that the
    statute gives the President in deciding what action to take in the event the
    preconditions are fulfilled is far from unbounded. The President can act only
    to the extent “he deems necessary to adjust the imports of such article and
    its derivatives so that such imports will not threaten to impair the national
    security.” And §232(c),4 [a]rticulates a series of specific factors to be
    4 Section 232 has been amended since the Supreme Court issued Algonquin. Under the current
    law, section 232(d) mirrors what was previously section 232(c) and section 232(c) enumerates
    the President’s authority, as was previously codified in section 232(b). Section 232, substantively,
    remains the same in relevant part.
    Court No. 18-00152                                                                    Page 7
    considered by the President in exercising his authority under § 232(b). In
    light of these factors and our recognition that “(n)ecessity . . . fixes a point
    beyond which it is unreasonable and impracticable to compel Congress to
    prescribe detailed rules . . . ,” we see no looming problem of improper
    delegation.
    
    Algonquin, 426 U.S. at 559
    –60 (citation and footnote omitted). This court is bound by
    Algonquin.
    Plaintiffs argue unpersuasively that Algonquin does not control because the
    plaintiffs in Algonquin “did not bring a facial challenge to the constitutionality of section
    232,” but rather challenged the President’s statutory authority to impose a specific kind of
    remedy and argued for a narrow statutory construction to avoid a nondelegation problem.
    See Pls.’ Br. at 31–33; Resp. Mem. Supp. Pls.’ Opp’n Defs.’ Mot. J. Pleadings & Reply
    Mem. Supp. Pls.’ Mot. Summary J. at 4–7, Oct. 5, 2018, ECF No. 33 (Pls.’ Reply Br.”).
    This argument fails to carry the day, given that the parties in Algonquin argued the
    nondelegation issue, and the District Court for the District of Columbia and Supreme
    Court squarely addressed it. The district court ruled that section 232 is “a valid delegation
    of authority by Congress to the President and confers upon him the power to impose
    import license fees on oil imports once he determines the fact of threatened impairment
    of the national security.” Algonquin SNG, Inc. v. Fed. Energy Admin., 
    518 F.2d 1051
    ,
    1063 (D.C. Cir. 1975) (Robb, J., dissenting) (attaching, in the Appendix, the U.S. District
    Court for the District of Columbia’s opinion and order in this action stating that one thrust
    of the challenge is whether the proclamation at issue “is an unconstitutional delegation by
    Congress of legislative power”). Reversing the District Court, the U.S. Court of Appeals
    for the District of Columbia found that the President’s license fee program was not
    Court No. 18-00152                                                                   Page 8
    authorized by the statute, see 
    id. at 1055,
    1062. Thereafter, the Supreme Court squarely
    confronted the nondelegation challenge in response to the arguments put forth by parties
    in their briefs. 
    Algonquin, 426 U.S. at 559
    –60.
    Plaintiffs also argue that Algonquin does not control because, since its issuance,
    “the legal landscape of judicial review of presidential decisions involving implementation
    of federal statutes has changed markedly[.]” See Pls.’ Br. at 29–30. Specifically, Plaintiffs
    argue that the Supreme Court’s decisions explaining that the President is not an agency
    and therefore not subject to review under the Administrative Procedure Act (“APA”)
    undercut Algonquin’s relevance. See 
    id. at 29–31
    (citing Franklin v. Massachusetts, 
    505 U.S. 788
    (1992); Dalton v. Specter, 
    511 U.S. 462
    (1994)). Thus, Plaintiffs premise their
    quest to overcome Algonquin on their view that the Supreme Court and all parties in
    Algonquin assumed a more searching standard of judicial review, see 
    id. at 29–30,
    and
    that without the availability of such review, the standards articulated in section 232 must
    be considered anew to ascertain whether they meet the intelligible principle standard.
    See 
    id. at 30–33,
    42.
    Plaintiffs’ premise cannot withstand scrutiny. Dalton and Franklin did not change
    “the legal landscape of judicial review” with respect to section 232. See Pls.’ Br. at 29–
    30. Indeed, no court before or after Algonquin held that the President was subject to the
    APA. See 1 Kenneth Culp Davis, Administrative Law Treatise § 1.2 at 8 (2d ed. 1978); 1
    Kristin E. Hickman & Richard J. Pierce, Jr., Administrative Law Treatise § 1.2.4 at 15 (6th
    ed. 2019); see also 
    Franklin, 505 U.S. at 796
    , 800–01 (holding, definitively, that the
    Court No. 18-00152                                                                       Page 9
    President is not subject to review under the APA).5 More importantly for purposes of this
    case, the APA did not expand judicial review to include review of matters committed to
    presidential discretion. The Attorney General’s Manual on the Administrative Procedure
    Act, considered an authoritative interpretation of the APA and entitled to deference, see
    Vt. Yankee Nuclear Power Corp. v. Nat. Res. Def. Council, Inc., 
    435 U.S. 519
    , 546 (1978),
    makes clear that presidential determinations committed to the President’s discretion by
    an enabling statute are not subject to review for rationality, findings of fact, or abuse of
    discretion. See U.S. Dep’t of Justice, Att’y Gen.’s Manual on the APA at 94–95 (1947)
    (“Manual”) (noting, for example, that United States v. George S. Bush & Co., 
    310 U.S. 371
    (1940), held that the President’s actions under section 336(c) of the Tariff Act of 1930
    were unreviewable because the statute left the determination to the President “if in his
    judgment” action was necessary); see also Amalgamated Meat Cutters & Butcher
    Workmen of North America, AFL-CIO v. Connally, 
    337 F. Supp. 737
    , 760 (D.D.C. 1971)
    (Leventhal, J., for three-judge panel) (noting the rare occasions when Congress commits
    matters to executive discretion to avoid judicial review for errors of law and abuse of
    discretion). In fact, Dalton acknowledged that prior decisions similarly found that matters
    committed to presidential discretion could not be reviewed for abuse of that discretion.
    
    Dalton, 511 U.S. at 474
    (quoting Dakota Cent. Tel. Co. v. S.D. ex reI. Payne, 
    250 U.S. 5
    Courts had suggested, without deciding the question, that the APA applied to the President.
    See Amalgamated Meat Cutters & Butcher Workmen of North America, AFL-CIO v. Connally, 
    337 F. Supp. 737
    , 761 (D.D.C. 1971) (Leventhal, J., for three-judge panel) (noting scholars who
    believed the President was an agency under the APA); DeRieux v. Five Smiths, Inc., 
    499 F.2d 1321
    , 1332 & n.13 (Temp. Emer. Ct. App. 1974) (relying on Amalgamated Meat Cutters to review
    an executive order and stating that the court’s analysis assumed, for the sake of argument, “that
    the President is an agency within the meaning of the APA.”).
    Court No. 18-00152                                                                           Page 10
    163, 184 (1919), for the proposition that “where a claim ‘concerns not a want of
    [presidential] power, but a mere excess or abuse of discretion in exerting a power given,
    it is clear that it involves considerations which are beyond the reach of judicial power’”).
    Thus, prior to Dalton, and at the time of Algonquin, there was no judicial review of matters
    that Congress had committed to presidential discretion—such as those the President
    makes under section 232—for rationality, findings of fact, or abuse of discretion. See
    George S. Bush & 
    Co., 310 U.S. at 379
    –80; 19 U.S.C. § 1862(c)(1)(A)(ii).6 Instead, both
    before and after Algonquin, courts assessed presidential determinations committed to
    presidential discretion pursuant to nonstatutory review for being unconstitutional or in
    excess of statutorily granted authority.7
    6 Plaintiffs, perhaps unintentionally, touch upon this idea in their reply brief, stating that “even if
    there w[as] an express provision for judicial review, the courts would be assigned an impossible
    task.” Pls.’ Reply Br. at 20. Indeed, the task would be impossible not because Dalton and Franklin
    changed the legal landscape for judicial review of presidential action, but because section 232
    commits requisite determinations to the President’s discretion. See 19 U.S.C. § 1862(c). Judicial
    review was as much of an “impossible task” in Algonquin as it is here; neither Dalton nor Franklin
    made it any more or less practicable. The delegation of decision-making authority in section 232
    existed at the time of Algonquin and the Supreme Court nonetheless found that it “easily fulfills”
    the nondelegation test. 
    Algonquin, 426 U.S. at 559
    . This court is thus bound by Algonquin.
    7 In addition to establishing judicial power to review the constitutionality of statutes, Marbury v.
    Madison, 
    5 U.S. 137
    (1803), demonstrated that courts can review the President’s power under a
    statute and determine whether the President acted in excess of such statutory powers. This latter
    form of review has been described as nonstatutory review and is to be contrasted with the type
    of judicial review provided for by a specific statute, such as the APA. See Jonathan R. Siegel,
    Suing the President: Nonstatutory Review Revisited, 97 Colum. L. Rev. 1612, 1613–14 (1997)
    (discussing nonstatutory review). For example, in United States v. Yoshida International, Inc.,
    
    526 F.2d 560
    (C.C.P.A. 1975), the Court of Customs and Patent Appeals (“CCPA”) addressed
    whether Presidential Proclamation 4074 was within the President’s delegated authority.
    Proclamation 4074 declared, inter alia, a national emergency related to the country’s economic
    position, and assessed a supplemental duty of 10% on all dutiable products. Yoshida
    
    International, 526 F.2d at 567
    –68. Further, the proclamation authorized the President to, at any
    (footnote continued)
    Court No. 18-00152                                                                     Page 11
    Here, determinations pursuant to section 232 are committed to presidential
    discretion. See 19 U.S.C. § 1862(c). Section 232 empowers the President to either
    concur or not in the Secretary’s finding as to whether an article under investigation
    constitutes a threat to national security and to “determine the nature and duration of the
    action that, in the judgment of the President, must be taken to adjust the imports of the
    article and its derivatives so that such imports will not threaten to impair the national
    security.” 19 U.S.C. § 1862(c)(1)(A)(i)–(ii). The President’s determination of whether to
    concur is not qualified by any language or standard, establishing that it is left to his
    discretion. Accordingly, the President’s determination as to the form of remedial action
    is a matter “in the judgment of the President[.]”         19 U.S.C. § 1862(c)(1)(A)(ii).      By
    committing the determinations of whether to concur with the Secretary and what remedial
    action to take, if any, to the judgment of the President, Congress precluded an inquiry for
    rationality, fact finding, or abuse of discretion. See Manual at 94–96; George S. Bush &
    time, modify or terminate, in whole or in part, any proclamation made under his authority. 
    Id. at 568.
    The CCPA held that although neither the Tariff Act of 1930 nor the Trade Expansion Act of
    1962 authorized the proclamation, its adoption fell within the powers granted to the President
    under the Trading with the Enemy Act, i.e., to regulate or prohibit importation of goods during
    periods of war or national emergency. 
    Id. at 576.
    The court reviewed the action not under the
    APA or any statute conferring judicial review but sought to answer the question of whether
    Proclamation 4074 was an ultra vires presidential act. 
    Id. at 583.
    Likewise, U.S. Cane Sugar Refiners’ Ass’n v. Block, 
    683 F.2d 399
    (C.C.P.A. 1982), addressed
    whether the President acted within his delegated authority in issuing Proclamation 4941, which
    limited entry of sugar to a specific quantity between May 11, 1982, and June 30, 1982, and then
    to an amount as set by the Secretary of Agriculture. Under section 201(a) of the Trade Expansion
    Act of 1962, the President could proclaim additional import restrictions as deemed appropriate to
    carry out a trade agreement entered pursuant to section 201 between June 30, 1962, and July
    1,1967. 
    Id. at 401.
    The CCPA upheld the President’s action, holding that the Geneva Protocol
    of the General Agreement on Tariffs and Trade, which the President invoked in the proclamation,
    is a trade agreement for purposes of section 201, and thus the President’s act was authorized by
    statute. 
    Id. at 402,
    404. Such reviews of presidential action demonstrate the availability of
    nonstatutory review separate and distinct from review under the APA.
    Court No. 18-00152                                                                   Page 12
    
    Co., 310 U.S. at 379
    –80. Notwithstanding Dalton and Franklin, because the statutory
    language here commits determinations to the President’s discretion, the review available
    for presidential action has always been limited to constitutionality and action beyond
    statutory authority.   Thus, there has been no change in the legal landscape since
    Algonquin as far as section 232 is concerned.
    Nonetheless, Plaintiffs ask the court to consider the broad authority given to the
    President that triggers executive action, i.e., the “essentially unlimited definition of
    national security,” as well as the “limitless grant of discretionary remedial powers,” as
    indicative that the statute does not have an intelligible principle. See Pls.’ Br. at 5–6, 19–
    20; see also 19 U.S.C. § 1862(c)–(d).         Plaintiffs emphasize the expansive options
    available to the President to confront what he deems a national security issue. See Pls.’
    Br. at 6, 19–20. Plaintiffs argue the President is only limited by his imagination, see 
    id. at 20,
    and that the President could take any number of actions under the statute, including
    imposing tariffs on goods that are currently duty-free and increasing tariffs
    above those currently existing under the law for the subject article—with no
    limit on the level of the tariff. Thus, section 232 permits the President to
    impose tariffs—taxes—in unlimited amounts and of unlimited duration on
    any imported articles—or, as in the case with the steel tariff, on an entire
    class of imported articles. The President may also impose quotas—whether
    or not there are existing quotas—and with no limit on how much a reduction
    from an existing quota (or present or historical level of imports) there can
    be for the subject article. In addition, the President could choose to impose
    licensing fees for the subject article, either in lieu of or in addition to any
    tariff or quota already in place. Conversely, the President may also reduce
    an existing tariff or increase a quota, whenever he concludes that such a
    reduction or increase is in the interest of national security, as elastically
    defined. And for all these changes in the law, the President may select the
    duration of each such change without any limits on his choice, and he may
    make any changes with no advance notice or delay in implementation.
    Court No. 18-00152                                                                        Page 13
    Pls.’ Br. at 6.8 Admittedly, the broad guideposts of subsections (c) and (d) of section 232
    bestow flexibility on the President and seem to invite the President to regulate commerce
    by way of means reserved for Congress, leaving very few tools beyond his reach. See
    19 U.S.C. § 1862(c) (providing the President shall “determine the nature and duration of
    the action that, in the judgment of the President, must be taken to adjust the imports of
    the article and its derivatives so that such imports will not threaten to impair the national
    security.”), and 19 U.S.C. § 1862(d) (providing that the President shall take into
    consideration “the close relation of the economic welfare of the Nation to our national
    8 Plaintiffs emphasize the range of actions available to the President under section 232 and
    reference specific acts that he has taken. See Pls.’ Br. at 12, 19–20; Pls.’ Reply Br. at 5–6, 12–
    13. For example, on March 8, 2018, the President issued Proclamation 9705 imposing a 25%
    tariff on all imported steel articles, other than those imported from Canada and Mexico. See
    Proclamation 9705 of March 8, 2018, 83 Fed. Reg. 11,625 (Mar. 15, 2018). The President also
    enacted Proclamation 9704 under section 232, which imposed a tariff of 10% on aluminum
    articles, other than those imported from Canada and Mexico. See Proclamation 9704 of March
    8, 2018, 83 Fed. Reg. 11,619 (Mar. 15, 2018). Subsequently, the President issued several
    amendments to Proclamation 9705 under section 232, providing for various country-based
    exemptions from the steel tariff. See Proclamation 9711 of March 22, 2018, 83 Fed. Reg. 13,361
    (Mar. 28, 2018) (exempting, in addition to Canada and Mexico, the following countries from the
    steel tariff: the Commonwealth of Australia (“Australia”), the Argentine Republic (“Argentina”), the
    Republic of South Korea (“Korea”), the Federative Republic of Brazil (“Brazil”), and the European
    Union (“EU”) on behalf of its member countries); Proclamation 9740 of April 30, 2018, 83 Fed.
    Reg. 20,683 (May 7, 2018) (announcing an agreement with Korea to impose a quota on Korean
    imports of steel articles into the United States, extending the temporary exemption from the steel
    tariff for Argentina, Australia, and Brazil, and extending the temporary exemption for Canada,
    Mexico, and the EU); Proclamation 9759 of May 31, 2018, 83 Fed. Reg. 25,857 (June 5, 2018)
    (announcing agreements to exempt on a long-term basis Argentina, Australia, and Brazil from the
    steel tariff announced in Proclamation 9705). Plaintiffs also note the President is not required to
    apply his chosen remedy to imports from all countries but can pick and choose a remedy. See
    Pls.’ Br. at 7, 19–20. Such discretion was recently demonstrated, Plaintiffs note, when the
    President doubled the tariff on steel imports from Turkey with no national security justification
    beyond that which is applicable to steel imports from other countries. See Proclamation 9772 of
    August 10, 2018, 83 Fed. Reg. 40,429 (Aug. 15, 2018) (raising the steel tariff to 50% for Turkey);
    see also Pls.’ Reply Br. at 12 (reproducing the proclamation as Exhibit 15 to Supp. Mem. Supp.
    Pls.’ Mot. Summary J., Aug. 16, 2018, ECF No. 24).
    Court No. 18-00152                                                                Page 14
    security, . . . any substantial unemployment, decrease in revenues of government, loss
    of skills or investment, or other serious effects resulting from the displacement of any
    domestic products by excessive imports . . . , without excluding other factors, in
    determining whether such weakening of our internal economy may impair the national
    security.”).
    To be sure, section 232 regulation plainly unrelated to national security would be,
    in theory, reviewable as action in excess of the President’s section 232 authority. See,
    e.g., Indep. Gasoline Marketers Council, Inc. v. Duncan, 
    492 F. Supp. 614
    , 620 (D.D.C.
    1980) (holding that the President’s imposition of a gasoline “conservation fee” pursuant
    to section 232(b) of the Trade Expansion Act was not authorized by the statute).
    However, identifying the line between regulation of trade in furtherance of national
    security and an impermissible encroachment into the role of Congress could be elusive
    in some cases because judicial review would allow neither an inquiry into the President’s
    motives nor a review of his fact-finding. See George S. Bush & 
    Co., 310 U.S. at 379
    –80;
    Florsheim Shoe Co. v. U.S., 
    744 F.2d 787
    , 796–97 (Fed. Cir. 1984). One might argue
    that the statute allows for a gray area where the President could invoke the statute to act
    in a manner constitutionally reserved for Congress but not objectively outside the
    President’s statutory authority, and the scope of review would preclude the uncovering of
    such a truth. Nevertheless, such concerns are beyond this court’s power to address,
    given the Supreme Court’s decision in 
    Algonquin, 426 U.S. at 558
    –60.
    Court No. 18-00152                                                                            Page 15
    CONCLUSION
    For the foregoing reasons, the Plaintiffs’ motion for summary judgment is denied,
    and the Defendants’ motion for judgment on the pleadings is granted. Judgment will enter
    accordingly.
    /s/ Claire R. Kelly
    Claire R. Kelly, Judge
    /s/ Jennifer Choe-Groves
    Jennifer Choe-Groves, Judge
    Dated: March 25, 2019
    New York, New York
    Katzmann, Judge, dubitante.1 Section 232 of the Trade Expansion Act of 1962,
    as amended in 19 U.S.C. § 1862 (2012) (“section 232”), provides that if the Secretary of
    1 “[E]xpressing the epitome of the common law spirit, there is the opinion entered dubitante – the
    judge is unhappy about some aspect of the decision rendered, but cannot quite bring himself to
    record an open dissent.” Lon Fuller, Anatomy of the Law 147 (1968). See generally Jason
    Czarnezki, The Dubitante Opinion, 39 Akron L. Rev. 1 (2006).
    The dubitante opinion has a well-established place in American jurisprudence. See, e.g.,
    Radio Corp. of America v. United States, 
    341 U.S. 412
    , 421 (1951) (Frankfurter, J., dubitante)
    (“Since I am not alone in entertaining doubts about this case they had better be stated.”); O’Keefe
    v. Smith, Hinchman & Grylls Associates, 
    380 U.S. 359
    , 371–72 (1965) (Douglas, J., dubitante)
    (“I would not be inclined to reverse a Court of Appeals that disagreed with . . . findings as exotic
    as we have here.”); Kartell v. Blue Shield of Mass., Inc., 
    592 F.2d 1191
    , 1195–96 (1st Cir. 1979)
    (Coffin, C.J., dubitante) (“While I share the court’s desire to defer to Massachusetts courts for all
    the help we can get . . . I confess to some uneasiness about our privilege as an appellate court
    simply to abstain when the district court has not seen fit to do so . . . I hope the court is correct.”);
    Feldman v. Allegheny Airlines, Inc., 
    524 F.2d 384
    , 393 (2d Cir. 1975) (Friendly, J., concurring
    dubitante) (“Although intuition tells me that the Supreme Court of Connecticut would not sustain
    the award made here, I cannot prove it. I therefore go along with the majority, although with the
    gravest doubts.”); Wi-LAN, Inc. v. Kilpatrick Townsend & Stockton LLP, 
    684 F.3d 1364
    , 1374
    (Fed. Cir. 2012) (Reyna, J., dubitante) (“As I cannot prove or disprove our result, I go along with
    the majority – but with doubt.”).
    (footnote continued)
    Court No. 18-00152                                                                            Page 16
    Commerce finds that an “article is being imported into the United States in such quantities
    or under such circumstances as to threaten to impair the national security,” the President
    is authorized to “determine the nature and duration of the action that, in the judgment of
    the President, must be taken to adjust the imports of the article and its derivatives so that
    such imports will not threaten to impair the national security.”
    Section 232 was enacted pursuant to the power granted exclusively to Congress
    by Article I, Section 8 of the Constitution, which provides: “The Congress shall have Power
    To lay and collect Taxes, Duties, Imposts and Excises,” as well as “To regulate
    Commerce with foreign Nations.” There is no provision in the Constitution that vests in
    the President the same “Power To Lay and collect . . . Duties.” In short, the power to
    impose duties is a core legislative function.
    The dubitante opinion has also been issued where -- as I do in the case before us now --
    a judge considers himself or herself to be constrained or bound by precedent, but wishes to
    suggest an alternative view. See., e.g., Weaver v. Marine Bank, 
    683 F.2d 744
    , 749 (3rd Cir. 1982)
    (Sloviter, J., dubitante) (“With great deference to my colleagues on the court when the
    [precedential] decision was rendered, it appears to rest on a misapprehension and misapplication
    of the Supreme Court’s decision.”); United States v. Jeffries, 
    692 F.3d 473
    , 483 (6th Cir. 2012)
    (Sutton, J., dubitante) (“Sixth Circuit precedent compels this interpretation of § 875(c) . . . I write
    separately because I wonder whether our initial decisions in this area (and those of other courts)
    have read the statute the right way from the outset.”); PETA v. U.S. Dept. of Agriculture, 
    797 F.3d 1087
    , 1099 (D.C. Cir. 2015) (Millett, J., dubitante) (“If the slate were clean, I would feel obligated
    to dissent from the majority’s standing decision. But I am afraid that the slate has been written
    upon, and this court’s . . . precedent will not let me extricate this case from its grasp.”);
    Brenndoerfer v. U.S. Postal Service, 693 Fed.Appx. 904, 906–07 (Fed. Cir. 2017) (Wallach, J.,
    concurring dubitante) (“Because I am bound by our precedent, I agree with the majority that
    [Petitioner’s] petition must be dismissed for lack of subject matter jurisdiction. However, I reiterate
    that ‘[i]t may be time’ [to revisit the issue] in ‘light of recent Supreme Court precedent.’” (citations
    omitted)).
    Court No. 18-00152                                                                        Page 17
    On March 18, 2018, after receiving the report of the Secretary of Commerce, the
    President, invoking section 232, issued two proclamations imposing tariffs of 25% on steel
    and 10% on aluminum imports effective March 23, 2018,2 while providing for flexibility
    with regard to country and product applicability of the tariffs. The new tariffs were to be
    imposed in addition to duties already in place, including antidumping and countervailing
    duties under domestic laws designed to preserve fair trade for the American economy.3
    It appears that the March 18, 2018 proclamations were the first presidential actions based
    on section 232 in more than thirty years.4
    The question before us may be framed as follows: Does section 232, in violation
    of the separation of powers, transfer to the President, in his virtually unbridled discretion,
    2 Proclamation 9704 of March 8, 2018, 83 Fed. Reg. 11,619 (Mar. 15, 2018) amended in
    Proclamation 9776 of August 29, 2018, 83 Fed. Reg. 45,019 (Sept. 4, 2018) and Proclamation
    9705 of March 8, 2018, 83 Fed. Reg. 11,625 (Mar. 15, 2018) amended in Proclamation 9777 of
    August 29, 2018, 83 Fed. Reg. 45,025 (Sept. 4, 2018).
    3 “Dumping occurs when a foreign company sells a product in the United States at a lower price
    than what it sells that same product for in its home market. Such a product can be described as
    being sold below ‘fair value.’” Sioux Honey Ass’n v. Hartford Fire Ins. Co., 
    672 F.3d 1041
    , 1046
    (Fed. Cir. 2012). “[A] countervailable subsidy exists where a foreign government provides a
    financial contribution which confers a benefit to the recipient.” ATC Tires Private Ltd. v. United
    States, 42 CIT __, __, 
    322 F. Supp. 3d 1365
    , 1366–67 (2018). To empower the Department of
    Commerce (“Commerce”) to offset harmful economic distortions caused by countervailable
    subsidies and dumping, Congress enacted the Tariff Act of 1930. Sioux 
    Honey, 672 F.3d at 1046
    .
    Under the Tariff Act’s framework, Commerce may investigate potential countervailable subsidies
    or dumping and, if appropriate, issue orders imposing duties on the merchandise under
    investigation. 19 U.S.C. §§ 1671, 1673; see also Sioux 
    Honey, 672 F.3d at 1046
    ; ATC 
    Tires, 322 F. Supp. 3d at 1366
    –67.
    4 The Congressional Research Service has reported in a study that “[p]rior to the [current]
    Administration, a President arguably last acted under Section 232 in 1986. In that case,
    Commerce determined that imports of metal-cutting and metal-forming machine tools threatened
    to impair national security. . . . [T]he President sought voluntary export restraint agreements with
    leading foreign exporters, and developed domestic programs to revitalize the U.S. industry.”
    Cong. Research Serv., R45249, Section 232 Investigations: Overview and Issues for Congress 4
    (2018).
    Court No. 18-00152                                                                      Page 18
    the power to impose taxes and duties that is fundamentally reserved to Congress by the
    Constitution? My colleagues, relying largely on a 1976 Supreme Court decision, conclude
    that the statute passes constitutional muster. While acknowledging the binding force of
    that decision, with the benefit of the fullness of time and the clarifying understanding borne
    of recent actions, I have grave doubts. I write, respectfully, to set forth my concerns.
    It was the genius of the Framers of the Constitution of this Nation, forged from the
    struggle against tyranny, that they declared the essential importance of the separation of
    the powers.5 In The Federalist No. 47, James Madison wrote that “[n]o political truth is
    certainly of greater intrinsic value, or is stamped with the authority of more enlightened
    patrons of liberty than” the separation of powers. The Federalist No. 47, at 301 (James
    Madison) (Clinton Rossiter ed., 1961). “The accumulation of all powers, legislative,
    executive and judiciary in the same hands . . . must justly be pronounced the very
    definition of tyranny.” 
    Id. Although the
    Constitution does not have an explicit provision
    recognizing the separation of powers, the Constitution does identify three distinct types
    of governmental power -- legislative, executive and judicial -- and, in the Vesting Clauses,
    commits them to three distinct branches of Government. Those clauses provide that “[a]ll
    legislative Powers herein granted shall be vested in a Congress of the United States,
    which shall consist of a Senate and House of Representatives,” U.S. Const. art. I, § 1;
    “[t]he executive Power shall be vested in a President of the United States,” U.S. Const.
    art. II, § 1, cl. 1; and “[t]he judicial Power of the United States[] shall be vested in one
    5 See generally M.J.C. Vile, Constitutionalism and the Separation of Powers, 156–175 (1967)
    (reprinted in 1969); Keith E. Whittington & Jason Iuliano, The Myth of the Nondelegation Doctrine,
    165 U. Pa. L. Rev. 379 (2017).
    Court No. 18-00152                                                                 Page 19
    supreme Court, and in such inferior Courts as the Congress may from time to time ordain
    and establish,” U.S. Const. art. III, § 1. Insofar as the Constitution departs from a pure
    separation of powers model and allows some sharing of powers across the branches of
    government, those exceptions are set out in text. The President is given a share of the
    legislative power through the prerogative of the presidential veto. U.S. Const. art. I, § 7.
    The Senate is given a share of the executive power through the right to advise and
    consent to the appointment of government officers. U.S. Const. art. II, § 2.
    A review of Supreme Court jurisprudence, from the early days of the Republic,
    evinces affirmation of the principle that the separation of powers must be respected and
    that the legislative power over trade cannot be abdicated or transferred to the Executive.
    Indeed, the first case raising the question of unconstitutional delegation of legislative
    power was a trade case, Cargo of the Brig Aurora v. United States, 11 U.S. (7 Cranch)
    382, 382–85 (1813). That case involved the condemnation and seizure of cargo of the
    brig Aurora in the Port of New Orleans, imported from Great Britain in violation of the Non-
    Intercourse Act of 1809 (“1809 Act”). Ch. 242, 2 Stat. 528 (1809). The 1809 Act, which
    sought to keep the United States from entanglement in the war between Britain and
    France by forbidding the importation of goods from either of those nations, had authorized
    the President to lift the embargo upon his declaration that either of those nations had
    ceased to violate the neutral commerce of the United States. 
    Id. When the
    1809 Act
    expired, the Non-Intercourse Act of 1810 extended its terms but temporarily suspended
    its implementation to permit each of the two warring nations an opportunity to renounce
    her policies against American shipping and to announce respect for American neutrality.
    Court No. 18-00152                                                                   Page 20
    The President was again authorized to lift the embargo upon declaration by proclamation
    that the nation had “cease[d] to violate the neutral commerce of the United States.” Cargo
    of the Brig 
    Aurora, 11 U.S. at 384
    . The President issued a proclamation declaring that
    France had revoked her edicts such that she was now respectful of America’s neutral
    commerce, thus lifting the embargo against France.           
    Id. The President,
    however,
    determined that Britain had not modified its offending edicts, and thus the embargo
    against her remained in place. 
    Id. Counsel for
    the owner of the cargo contended that
    Congress had impermissibly “transfer[red] the legislative power to the President” and that
    Congress could not enact legislation which predicated the revival of an expired law upon
    a proclamation by the President attesting to facts as articulated by Congress. 
    Id. at 386.
    In rejecting this argument and upholding the act, the Court ruled that it could “see no
    sufficient reason[] why the legislature should not exercise it discretion in reviving the act,
    . . . either expressly or conditionally, as their judgment should direct . . . upon the
    occurrence of any subsequent combination of events.” 
    Id. at 388.
    In other words, the
    law was constitutional because the President was acting as a fact-finder, not a lawmaker.
    By the time the Supreme Court addressed its next nondelegation challenge in a
    trade case, Field v. Clark, 
    143 U.S. 649
    (1892), it had previously observed that “[t]he line
    has not been exactly drawn which separates those important subjects, which must be
    entirely regulated by the legislature itself, from those of less interest, in which a general
    provision may be made, and power given to those who are to act under such general
    provisions to fill up the details.” Wayman v. Southard, 23 U.S. (10 Wheat.) 1, 20 (1825).
    In the 1892 case, 
    Field, supra
    , importers brought a suit claiming that duties imposed
    Court No. 18-00152                                                                   Page 21
    pursuant to the Tariff Act of 1890 should be refunded because that act was an
    unconstitutional delegation of legislative power. The Tariff Act of 1890 provided:
    That with a view to secure reciprocal trade with countries producing
    [specified] articles . . . whenever, and so often as the [P]resident shall be
    satisfied that the [G]overnment of any country producing . . . such articles,
    imposes duties or other exactions upon the agricultural or other products of
    the United States, which in view of the free introduction of …[such articles]
    into the United States he may deem to be reciprocally unequal and
    unreasonable, he shall have the power and it shall be his duty to suspend,
    by proclamation to that effect, the provisions of this act relating to the free
    introduction of [such articles] . . . for such time as he shall deem just, and in
    such case and during such suspension duties shall be levied, collected, and
    paid upon [such articles] . . . .
    
    Field, 143 U.S. at 697
    –98.        In rejecting the claim that the Tariff Act of 1890
    unconstitutionally delegated legislative power to the President, the Court stated:
    That Congress cannot delegate legislative power to the [P]resident is a
    principle universally recognized as vital to the integrity and maintenance of
    the system of government ordained by the Constitution. The [A]ct of
    October 1, 1890, in the particular under consideration, is not inconsistent
    with that principle. It does not, in any real sense, invest the [P]resident with
    the power of legislation. . . . Congress itself prescribed, in advance, the
    duties to be levied, collected and paid . . .while the suspension lasted.
    Nothing involving the expediency or the just operation of such legislation
    was left to the determination of the [P]resident. . . . But when he ascertained
    the fact that duties and exactions, reciprocally unequal and unreasonable,
    were imposed upon the agricultural or other products of the United States
    by a country producing and exporting sugar, molasses, coffee, tea or hides,
    it became his duty to issue a proclamation declaring the suspension, as to
    that country, which [C]ongress had determined should occur. He had no
    discretion in the premises except in respect to the duration of the
    suspension so ordered. But that related only to the enforcement of the
    policy established by [C]ongress. As the suspension was absolutely
    required when the [P]resident ascertained the existence of a particular fact,
    it cannot be said that in ascertaining that fact, and in issuing his
    proclamation, in obedience to the legislative will, he exercised the function
    of making laws.
    
    Id. at 692–93.
    Court No. 18-00152                                                                   Page 22
    The next case adjudicating a challenge to a trade statute on the grounds of
    unconstitutional delegation of legislative power to the President was J.W. Hampton, Jr. &
    Co. v. United States, 
    276 U.S. 394
    (1928). An importer of barium dioxide challenged the
    tariff assessed on a shipment by virtue of the “flexible tariff provision” of the Tariff Act of
    1922, enacted:
    to secure by law the imposition of customs duties on articles of imported
    merchandise which should equal the difference between the cost of
    producing in a foreign country the articles in question and laying them down
    for sale in the United States, and the cost of producing and selling like or
    similar articles in the United States, so that the duties not only secure
    revenue, but at the same time enable domestic producers to compete on
    terms of equality with foreign producers in the markets of the United States.
    
    Id. at 404.
    In that provision, Congress authorized the President to adjust the duties set
    by the statute if the President determined after investigation that the duty did not “equalize
    . . . differences in costs of production in the United States and the principal competing
    country . . . . Provided, [t]hat the total increase or decrease of such rates of duty shall not
    exceed 50 per centum of the rates specified” by statute. 
    Id. at 401.
    Noting that the
    “difference which is sought in the statute is perfectly clear and perfectly intelligible,” the
    Court also observed that it was difficult for Congress to fix the rates in the statute. 
    Id. at 404.
    Accordingly, the Tariff Commission was assigned to “assist in . . . obtaining needed
    data and ascertaining the facts justifying readjustments,” to “make an investigation and in
    doing so must give notice to all parties interested and an opportunity to adduce evidence
    and to be heard.” 
    Id. The President
    would then “proceed to pursue his duties under the
    [A]ct and reach such conclusion as he might find justified by the investigation[,] and to
    proclaim the same, if necessary.” 
    Id. at 405.
    Court No. 18-00152                                                                  Page 23
    Noting that the Federal Constitution “divide[s] the governmental power into three
    branches,” the Hampton Court stated that “it is a breach of the national fundamental law
    if Congress gives up its legislative powers and transfers it to the President . . . .” 
    Id. at 406.
    However, Congress could “invoke the action” of the Executive “in so far as the action
    invoked shall not be an assumption of the constitutional field of action of [the Legislative]
    branch.” 
    Id. “[I]n determining
    what it may do in seeking assistance from [the Executive],
    the extent and character of that assistance must be fixed according to common sense
    and the inherent necessities of the governmental co-ordination.” 
    Id. Then the
    Hampton
    court announced what has come to be known as the “intelligible principle” formulation: “If
    Congress shall lay down by legislative act an intelligible principle to which the person or
    body authorized to fix such rates is directed to conform, such legislative action is not a
    forbidden delegation of legislative power.” 
    Id. at 409.
    Citing to 
    Field, supra
    , the Court
    pointed to the limited and circumscribed nature of the Executive action, concluding the
    President was:
    not in any real sense invest[ed] . . . with the power of legislation, because
    nothing involving the expediency or just operation of such legislation was
    left to the determination of the President; that the legislative power was
    exercised when Congress declared that the suspension should take effect
    upon a named contingency.
    
    Id. at 410.
    The President “was the mere agent of the law-making department.” 
    Id. at 411.
    “What the President was required to do was merely in execution of the act of
    Congress.” 
    Id. at 410–11.
    Court No. 18-00152                                                                   Page 24
    The “intelligible principle” standard is the standard which has since been applied
    to determine whether there has been an impermissible delegation of legislative power.
    As my colleagues note, in the years since the “intelligible principle” was announced, and
    in cases involving numerous statutes, only twice has the Court invalidated a statute
    because it impermissibly delegated the power vested in the Congress to the Executive.
    “In the history of the Court we have found the requisite ‘intelligible principle’ lacking in
    only two statutes, one of which provided literally no guidance for the exercise of discretion,
    and the other of which conferred authority to regulate the entire economy on the basis of
    no more precise a standard than stimulating the economy by assuring ‘fair competition.’”
    Whitman v. Am. Trucking Ass’ns, Inc., 
    531 U.S. 457
    , 474 (2001) (citing Panama Refining
    Co. v. Ryan, 
    293 U.S. 388
    (1935) and A.L.A. Schechter Poultry Corp. v. United States,
    
    295 U.S. 495
    (1935)). Since 1935, the Court has never invalidated a statute because of
    impermissible delegation of legislative power to the Executive. This deference “is a
    reflection of the necessities of modern legislation dealing with complex economic and
    social problems. . . . Necessity therefore fixes a point beyond which it is unreasonable
    and impracticable to compel Congress to prescribe detailed rules.” American Power &
    Light Co. v. SEC, 
    329 U.S. 90
    , 105 (1946).
    In the one trade case before the Court since Hampton where it was contended that
    the statute at issue constituted an unconstitutional delegation of legislative power to the
    Executive, the statute in question was the one before us now -- section 232. See Fed.
    Energy Admin. v. Algonquin SNG, Inc., 
    426 U.S. 548
    (1976). In that case -- after a
    determination that foreign petroleum was being imported into the United States in such
    Court No. 18-00152                                                                  Page 25
    quantities and at such low costs as to threaten to impair national security by inhibiting the
    development of domestic production and refinery capacity -- the President imposed
    license fees upon the exporters in an effort to control imports pursuant to section 232.
    The Attorney General of the Commonwealth of Massachusetts and others brought suit,
    primarily making the narrow statutory claim that while section 232 authorized the
    President to adjust the imports of petroleum and petroleum products by imposing quotas,
    the remedy that the President sought, import licensing fees, was not authorized by the
    statute. 
    Id. at 556.
    They also argued that unless this construction was adopted, the Court
    would have to reach the constitutional question of whether section 232 was an
    impermissible delegation of legislative power to the President. 
    Id. at 558–59.
    The
    Supreme Court opinion, as my colleagues note, not only decided (in favor the Federal
    Energy Administration) the statutory question as to whether licenses were permissible,
    but also reached the constitutional question. Referencing the “intelligible principle,” the
    Court ruled that “[e]ven if § 232(b) is read to authorize the imposition of a license fee
    system, the standards that it provides the President in its implementation are clearly
    sufficient to meet any delegation doctrine attack.” 
    Id. at 559.
    Of course, as a lower court, it behooves us to follow the decision of the highest
    court. It can also be observed that new developments and the record of history may
    supplement and inform our understanding of law. Indeed, the Algonquin court concluded
    with the following:
    Our holding today is a limited one.          As respondents themselves
    acknowledge, a license fee as much as a quota has its initial and direct
    impact on imports, albeit on their price as opposed to their quantity. As a
    consequence, our conclusion here, fully supported by the relevant
    Court No. 18-00152                                                                Page 26
    legislative history, that the imposition of a license fee is authorized by
    § 232(b) in no way compels the further conclusion that any action the
    President might take, as long as it has even a remote impact on imports, is
    also so authorized.
    
    Id. at 571
    (emphasis in original).
    Analyzing the delegation question from the face of the statute, the Algonquin court
    took note of “clear conditions to Presidential action” that established an intelligible
    principle restricting presidential action: The Secretary is required to make a finding that
    “an article is being imported into the United States in such quantities or under such
    circumstances as to threaten to impair the national security.” 
    Id. at 559.
    “The President
    can act only to the extent ‘he deems necessary to adjust the imports of such article and
    its derivative so that such imports will not threaten to impair the national security.’ And
    § 232(c) articulates a series of specific factors to be considered by the President in
    exercising his authority under § 232(b).” 
    Id. at 559.
    While section 232 states as the Court
    recited, there is no statutory requirement that the President’s actions match the
    Secretary’s report or recommendations. The President is not bound in any way by any
    recommendations made by the Secretary, and he is not required to base his remedy on
    the report or the information provided to the Secretary through any public hearing or
    submission of public comments. There is no rationale provided for how a tariff of 25%
    was derived in some situations, and 10% in others. There is no guidance provided on the
    remedies to be undertaken in relation to the expansive definition of “national security” in
    the statute – a definition so broad that it not only includes national defense but also
    encompasses the entire national economy. The record reveals, for example, that the
    Court No. 18-00152                                                                    Page 27
    Secretary of Defense stated that “the U.S. military requirements for steel and aluminum
    each only represent about three percent of U.S. production.”6
    As the preceding review of the trilogy of Aurora, Field, and Hampton evinces, the
    trade statutes in those cases did not impermissibly transfer the legislative function to the
    Executive because they provided ascertainable standards to guide the President –
    standards such that the congressional will had been articulated and was thus capable of
    effectuation. What we have come to learn is that section 232, however, provides virtually
    unbridled discretion to the President with respect to the power over trade that is reserved
    by the Constitution to Congress. Nor does the statute require congressional approval of
    any presidential actions that fall within its scope.7 In short, it is difficult to escape the
    conclusion that the statute has permitted the transfer of power to the President in violation
    of the separation of powers.
    To note these concerns is not to diminish in any way the reality, sanctioned under
    established constitutional principles, that in the workings of an increasingly complex
    world, Congress may assign responsibilities to the Executive to carry out and implement
    its policy. Nor is it to ignore the flexibility that can be allowed the President in the conduct
    of foreign affairs. See United States v. Curtiss-Wright Export Corp, 
    299 U.S. 304
    (1936).
    However, that power is also not unbounded, even in times of crisis. See Hamdi v.
    6 Letter from James N. Mattis, Secretary of Defense, to Wilbur L. Ross Jr., Secretary of
    Commerce (2018), Pl.’s Mot. for Summary J. (July 19, 2018) at Exh. 8, ECF No. 20-7.
    7 Compare the Crude Oil Windfall Profit Tax Act of 1980, creating a joint disapproval resolution
    provision under which Congress can override presidential actions in the case of adjustments to
    petroleum or petroleum product imports). The Crude Oil Windfall Profit Tax Act of 1980, § 402,
    Pub. L. 96-223, 19 U.S.C. § 1962, 94 Stat. 229, repealed by Omnibus Trade and Competitiveness
    Act of 1988, Pub. L. No. 100-418, 102 Stat. 1107, 1322.
    Court No. 18-00152                                                                       Page 28
    Rumsfeld, 
    542 U.S. 507
    , 536 (2004) (citing Youngstown Sheet & Tube Co. v. Sawyer,
    
    343 U.S. 579
    , 587 (1952)).8
    In the end, I conclude that, as my colleagues hold, we are bound by Algonquin,
    and thus I am constrained to join the judgment entered today denying the Plaintiffs’ motion
    and granting the Defendants’ motion. I respectfully suggest, however, that the fullness of
    time can inform understanding that may not have been available more than forty years
    ago. We deal now with real recent actions, not hypothetical ones. Certainly, those actions
    might provide an empirical basis to revisit assumptions. If the delegation permitted by
    section 232, as now revealed, does not constitute excessive delegation in violation of the
    Constitution, what would?
    /s/ Gary S. Katzmann
    Gary S. Katzmann, Judge
    8   Regarding the interplay between the Constitution and statute, one commentator has observed:
    The Constitution grants Congress the “Power To lay and collect Taxes, Duties,
    Imposts and Excises” and “To regulate Commerce with foreign Nations.” The
    president has no similar grant of substantive authority over economic policy,
    international or domestic. Consequently, international trade policy differs
    substantially from other foreign affairs issues, such as war powers, where the
    president shares constitutional authority with Congress. Where international trade
    policy is concerned, the president’s authority is almost entirely statutory.
    Timothy Meyer, Trade, Redistribution, and the Imperial Presidency, 44 Yale J. Int’l L. Online 16
    (2018) (footnotes omitted) available at http://www.yjil.yale.edu/features-symposium-international-
    trade-in-the-trump-era/.