USP Holdings, Inc. v. United States, No. 21-1726 (Fed. Cir. 2022)
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The Trade Expansion Act authorizes the President to adjust imports if he concurs with a determination by the U.S. Secretary of Commerce “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” and to “determine the nature and duration” of the corrective action, 19 U.S.C. 1862(c)(1)(A). In a 2018 report, the Secretary determined that excessive steel imports threatened to impair national security. The President concurred and issued proclamations that imposed a 25 percent tariff on steel imports from several countries.
The Court of International Trade rejected arguments that the President’s and Secretary’s finding of a threat to national security and the President’s imposition of a tariff for an indefinite duration conflicted with the statute. The Federal Circuit affirmed. While claims that the President’s actions violated the statutory authority delegated by section 1862 are reviewable, the President cannot be sued directly to challenge his threat determination. The Secretary’s threat determination is a reviewable final action, as a predicate to the President’s authority, but is reviewable only for compliance with the statute and not under the arbitrary and capricious standard. The court rejected an argument that the President failed to satisfy 1862(c)(1)(A)'s “nature and duration” requirement."
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