PrimeSource Building Products, Inc. v. United States, et al.

The Trade Expansion Act of 1968 delegates Congress’s constitutional power to set import duties and regulate foreign trade to the President whenever the President declares that imports “threaten to impair the national security.” 19 U.S.C. § 1862(c)(1)(A)(ii), (d). The only real constraints on the delegation are procedural: the President can only act in response to a public investigation and report by the Secretary of Commerce, and he must “determine the nature and duration of the action” he will take “[w]ithin 90 days after receiving [that] report.” Id. § 1862(b), (c)(1)(A), (c)(2), (d). In 2018, President Trump invoked the Act to impose tariffs on imports of “steel mill products” (such as steel plate and pipe). Two years later, he imposed tariffs on certain products made from steel (e.g., nails) without undertaking any of the Act’s required procedures. Applying a deferential standard of review, the Federal Circuit found the action lawful. The questions presented are:

1. Whether separation of powers principles require courts to resolve ambiguity in statutory limits on delegations of vast legislative power to the Executive in a way that constrains the delegation or, as the Federal Circuit holds, courts must uphold the President’s actions absent “a clear misconstruction of the governing statute.”

2. Whether, under the proper standard of review, the Trade Expansion Act of 1968 permitted the President to impose tariffs on steel derivatives without complying with the statute’s procedural prerequisites.