Transpacific Steel LLC v. United States ( 2021 )

Case: 20-2157 Document: 66 Page: 1 Filed: 07/13/2021
United States Court of Appeals
for the Federal Circuit
______________________
TRANSPACIFIC STEEL LLC, BORUSAN
MANNESMANN BORU SANAYI VE TICARET A.S.,
BORUSAN MANNESMANN PIPE U.S. INC., THE
JORDAN INTERNATIONAL COMPANY,
Plaintiffs-Appellees
v.
UNITED STATES, JOSEPH R. BIDEN, JR., IN HIS
OFFICIAL CAPACITY AS PRESIDENT OF THE
UNITED STATES, UNITED STATES CUSTOMS
AND BORDER PROTECTION, TROY MILLER, IN
HIS OFFICIAL CAPACITY AS SENIOR OFFICIAL
PERFORMING THE DUTIES OF THE
COMMISSIONER FOR UNITED STATES CUSTOMS
AND BORDER PROTECTION, DEPARTMENT OF
COMMERCE, GINA RAIMONDO, IN HER
OFFICIAL CAPACITY AS SECRETARY OF
COMMERCE,
Defendants-Appellants
______________________
2020-2157
______________________
Appeal from the United States Court of International
Trade in No. 1:19-cv-00009-CRK-GSK-JAR, Senior Judge
Jane A. Restani, Judge Claire R. Kelly, Judge Gary S.
Katzmann.
______________________
Case: 20-2157 Document: 66 Page: 2 Filed: 07/13/2021
2 TRANSPACIFIC STEEL LLC v. US
Decided: July 13, 2021
______________________
MATTHEW MOSHER NOLAN, Arent Fox, LLP, Washing-
ton, DC, argued for all plaintiffs-appellees. Plaintiff-appel-
lee Transpacific Steel LLC also represented by DIANA
DIMITRIUC QUAIA, NANCY NOONAN, LEAH N. SCARPELLI,
RUSSELL ANDREW SEMMEL.
JULIE MENDOZA, Morris, Manning & Martin, LLP,
Washington, DC, for plaintiffs-appellees Borusan Mannes-
mann Boru Sanayi ve Ticaret A.S., Borusan Mannesmann
Pipe U.S. Inc. Also represented by DONALD CAMERON, JR.,
EUGENE DEGNAN, MARY HODGINS, BRADY MILLS, R. WILL
PLANERT, EDWARD JOHN THOMAS, III.
LEWIS LEIBOWITZ, The Law Office of Lewis E.
Leibowitz, Washington, DC, for plaintiff-appellee Jordan
International Company.
TARA K. HOGAN, Commercial Litigation Branch, Civil
Division, United States Department of Justice, Washing-
ton, DC, argued for defendants-appellants. Also repre-
sented by BRYAN M. BOYNTON, JEANNE DAVIDSON, ANN
MOTTO, MEEN GEU OH, STEPHEN CARL TOSINI.
______________________
Before REYNA, TARANTO, and CHEN, Circuit Judges.
Opinion for the court filed by Circuit Judge TARANTO.
Dissenting opinion filed by Circuit Judge REYNA.
TARANTO, Circuit Judge.
In section 232 of the Trade Expansion Act of 1962, Pub.
L. No. 87–794, 76 Stat. 872, 877, codified as amended at 19
U.S.C. § 1862, Congress provided that if the President re-
ceives, and agrees with, a finding by a specified executive
officer (now the Secretary of Commerce) that imports of an
Case: 20-2157 Document: 66 Page: 3 Filed: 07/13/2021
TRANSPACIFIC STEEL LLC v. US 3
article threaten to impair national security, the President
shall take action that the President deems necessary to al-
leviate the threat from those imports. See Fed. Energy Ad-
min. v. Algonquin SNG, Inc., 426 U.S. 548 (1976)
(addressing then-current version of § 1862 and holding
that permitted action includes requiring licenses for im-
ports and that provision raised no substantial issue of im-
proper delegation of legislative power); American Inst. for
Int’l Steel, Inc. v. United States, 806 F. App’x 982 (Fed. Cir.
2020) (rejecting nondelegation challenge to the current ver-
sion of the statute). In its present form, the statute in-
cludes provisions, added in 1988, that set forth process and
timing standards applicable to the Secretary’s making of
the predicate finding of threat, § 1862(b), and set forth cer-
tain timing standards applicable to the President’s follow-
on decisions if the Secretary finds such a threat, § 1862(c).
Of central importance here is § 1862(c)(1). It specifies one
period within which the President is to concur or disagree
with the Secretary’s finding and to determine the neces-
sary action if the President concurs in the finding and an-
other period within which the President is thereafter to
implement the chosen action. § 1862(c)(1). This case in-
volves a challenge to certain presidential action as taken
too late under § 1862(c)(1).
In January 2018, the Secretary, in compliance with the
process and timing requirements of § 1862(b), found that
imports of steel threatened to impair national security be-
cause the imports caused domestic steel-production capac-
ity to be used less than the level of utilization needed for
operation of the plants to be profitably sustained over time.
In March 2018, within the periods prescribed for presiden-
tial action, the President agreed with the Secretary’s find-
ing, determined the needed plan of action, and announced
the plan in a proclamation that imposed some tariffs im-
mediately, announced negotiations with specified nations
in lieu of immediate tariffs, invited negotiations more
broadly, and stated that the immediate measures might be
Case: 20-2157 Document: 66 Page: 4 Filed: 07/13/2021
4 TRANSPACIFIC STEEL LLC v. US
adjusted as necessary. Proclamation 9705, 83 Fed. Reg.
11,625 (Mar. 15, 2018). Within a few months, as certain
negotiations produced agreements or adequately pro-
gressed, the President determined that imports were still
too high to allow domestic plant utilization to meet the Sec-
retary’s identified target, and the President raised the tar-
iff on steel from Turkey, one of the largest producers and
exporters of steel imported into the United States. Procla-
mation 9772, 83 Fed. Reg. 40,429 (Aug. 15, 2018). Procla-
mation 9772’s raising of the tariff on Turkish steel imports
is challenged here.
Transpacific Steel LLC, Borusan Mannesmann Boru
Sanayi Ve Ticaret A.S., Borusan Mannesmann Pipe U.S.
Inc., and the Jordan International Company (together,
Transpacific)—importers of Turkish steel (in some cases
also producers or exporters)—sued in the Court of Interna-
tional Trade (Trade Court), alleging that the President’s is-
suance of Proclamation 9772 was unlawful. The Trade
Court held the action unlawful on two grounds. First, the
court held that Proclamation 9772 was unauthorized be-
cause, unlike the initial Proclamation 9705, it was issued
outside the time periods set out in § 1862(c)(1) for presiden-
tial action after the Secretary’s finding (in which the Pres-
ident concurred) of a national-security threat from steel
imports. To take this action in August 2018, the court
ruled, the President had to secure a new report with a new
threat finding from the Secretary. Second, the court held
that singling out steel from Turkey for the increased tariff
violated the equal-protection guarantee of the Fifth
Amendment to the Constitution.
We reverse. The President did not violate § 1862 in is-
suing Proclamation 9772. The President did not depart
from the Secretary’s finding of a national-security threat;
indeed, the President specifically adhered to the Secre-
tary’s underlying finding of the target capacity-utilization
level that was the rationale for the predicate threat find-
ing. Moreover, the President made the determination that
Case: 20-2157 Document: 66 Page: 5 Filed: 07/13/2021
TRANSPACIFIC STEEL LLC v. US 5
further import restrictions were needed to achieve that
level in a short period after the Secretary’s finding and af-
ter the initial presidential action. And that initial presi-
dential action (in March 2018) itself announced a
continuing course of action that could include adjustments
as time passed. In these circumstances, we conclude that
the increase in the tariff on steel from Turkey by Procla-
mation 9772 did not violate § 1862. We do not address
other circumstances that would present other issues about
presidential authority to adjust initially taken actions
without securing a new report with a new threat finding
from the Secretary.
Nor did the President violate Transpacific’s equal-pro-
tection rights in issuing Proclamation 9772. The most de-
manding standard that could apply here is the
undemanding rational-basis standard. The President’s de-
cision to take one of a number of possible steps to achieve
the goal of increasing utilization of domestic steel plants’
capacity to try to improve their sustainability for national-
security reasons meets that standard.
I
A
Section 1862 empowers and directs the President to act
to alleviate threats to national security from imports. It
does so by modifying and adding to other presidential au-
thority granted by Congress.
Subsection (a). The first subsection of § 1862 refers to
two of the preexisting, continuing statutory grants of pres-
idential authority and forbids relaxation of import re-
strictions under those grants if national security would be
threatened. Specifically, subsection (a) addresses 19
U.S.C. §§ 1821 and 1351, which grant the President certain
discretionary authority regarding tariffs on goods from for-
eign nations with which the President might enter into ex-
ecutive agreements. Section 1821(a), which dates to at
Case: 20-2157 Document: 66 Page: 6 Filed: 07/13/2021
6 TRANSPACIFIC STEEL LLC v. US
least 1962, see Trade Expansion Act of 1962, § 201, 76 Stat.
at 872, states that the President “may,” for any of the broad
trade-related purposes identified in 19 U.S.C. § 1801, enter
into trade agreements and, among other things, raise or
lower duties (within limits) to carry out such agreements.
§ 1821. Section 1351, which traces back to 1934, see Tariff
Act of 1934, ch. 474, 48 Stat. 943, confers similar authority.
§ 1351. Subsection (a) of § 1862 forbids the President,
when acting under those provisions, “to decrease or elimi-
nate the duty or other import restrictions on any article if
the President determines that such reduction or elimina-
tion would threaten to impair the national security.”
§ 1862(a). 1
Subsection (b). The next subsection sets forth the
agency-level processes required for exercise of § 1862’s own
grant of presidential authority to take action against im-
ports that threaten to impair national security. In partic-
ular, subsection (b) prescribes process and timing
standards for the Secretary of Commerce to make the find-
ing that is a precondition for the President to take such ac-
tion under this statute.
If the Secretary receives a request from an agency or
department head or an “application of an interested party,”
or on the Secretary’s “own motion,” the Secretary must “im-
mediately initiate an appropriate investigation to deter-
mine the effects on the national security of imports of the
[relevant] article.” § 1862(b)(1)(A). During the investiga-
tion, the Secretary must consult with and seek information
1 In American Institute for International Steel, we
noted other congressional authorizations of presidential ac-
tion, and the use of executive agreements, to restrict im-
ports. 806 F. App’x at 983–84, 984 n.1; see also American
Ins. Ass’n v. Garamendi, 539 U.S. 396, 414–15 (2003) (not-
ing longstanding use and approval of executive agree-
ments).
Case: 20-2157 Document: 66 Page: 7 Filed: 07/13/2021
TRANSPACIFIC STEEL LLC v. US 7
and advice from certain officers—most notably, the Secre-
tary of Defense—and, if appropriate, “hold public hearings
or otherwise afford interested parties an opportunity to
present information and advice relevant to such investiga-
tion.” § 1862(b)(2)(A). Within “270 days” of the investiga-
tion’s start, “the Secretary shall submit to the President a
report on the findings of” the investigation.
§ 1862(b)(3)(A). Based on those findings, the Secretary
must include his “recommendations . . . for action or inac-
tion.” Id. “If the Secretary finds that such article is being
imported into the United States in such quantities or under
such circumstances as to threaten to impair the national
security, the Secretary shall so advise the President in such
report.” Id.
Subsection (c). The next subsection lays out the Presi-
dent’s authority and obligation to act under § 1862. As par-
agraph (1) makes clear, that authority and obligation exist
only if the President receives a report “in which the Secre-
tary 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.”
§ 1862(c)(1)(A). In that event, the President “shall,” within
90 days of receiving such a report, “determine whether the
President concurs with the finding of the Secretary,” i.e.,
the Secretary’s finding of a threat (not the Secretary’s rec-
ommendation of action or inaction). § 1862(c)(1)(A)(i). “[I]f
the President concurs” in that finding, then the President
“shall,” within the same 90 days, “determine the nature
and duration of the action that, in the judgment of the Pres-
ident, must be taken to adjust the imports of the article and
its derivatives so that such imports will not threaten to im-
pair the national security.” § 1862(c)(1)(A)(ii). Finally, “[i]f
the President determines . . . to take action to adjust im-
ports of an article and its derivatives, the President shall
Case: 20-2157 Document: 66 Page: 8 Filed: 07/13/2021
8 TRANSPACIFIC STEEL LLC v. US
implement that action” within 15 days of the action deter-
mination. § 1862(c)(1)(B). 2
In paragraph (3), subsection (c) specifically addresses
the circumstance in which one of the actions that the Pres-
ident initially chooses is not a unilateral imposition on cer-
tain imports but, instead, bilateral or multilateral in
character, i.e., negotiation of an agreement that “limits or
restricts the importation into, or the exportation to, the
United States of the article that threatens to impair na-
tional security.” § 1862(c)(3)(A)(i). To prevent that presi-
dential choice from turning into inaction or inadequate
action, paragraph (3) provides for unilateral action if either
no agreement is reached within 180 days, id., or an agree-
ment is reached but it “is not being carried out or is inef-
fective in eliminating the threat to the national security
posed by imports of such article,” § 1862(c)(3)(A)(ii) (em-
phasis added). When either of those conditions is met, “the
President shall take such other actions as the President
deems necessary to adjust the imports of such article so
that such imports will not threaten to impair the national
security.” § 1862(c)(3)(A). The President must publish in
2 Paragraph (2) requires the President to inform
Congress about the paragraph (1) determinations.
§ 1862(c)(2). This is one of several provisions that insist on
public disclosure of the choices made under § 1862. An-
other is the provision requiring the Secretary to submit to
Congress and publish in the Federal Register a report on
dispositions under subsection (b). See § 1862(e) (though la-
beled as a second subsection (d), the U.S. Code states that
it probably should be designated (e)). In addition, if the
President has chosen to pursue bilateral or multilateral
agreements initially, but that choice does not bear out in
the statutorily specified ways, the President must publish
notice of determinations of what if any alternative actions
to take. § 1862(c)(3)(A), (B).
Case: 20-2157 Document: 66 Page: 9 Filed: 07/13/2021
TRANSPACIFIC STEEL LLC v. US 9
the Federal Register notice of such “additional actions” or
of a determination not to take “additional actions.”
§ 1862(c)(3)(A), (B).
Subsection (d). Congress included what amounts to a
definitional provision for § 1862. Subsection (d) states a
number of “relevant factors” to which the Secretary and the
President must “give consideration” in making their deter-
minations regarding “national security.” § 1862(d).
Among the factors are the “domestic production needed for
projected national defense requirements,” the “capacity of
domestic industries to meet such requirements,” the “re-
quirements of growth of such [domestic] industries,” “the
impact of foreign competition on the economic welfare of
individual domestic industries,” and whether the “weaken-
ing of our internal economy may impair the national secu-
rity.” Id. The statute enumerates other considerations as
well, and the entire enumeration is set forth “without ex-
cluding other relevant factors.” Id. 3
B
1
On April 19, 2017, the Secretary of Commerce started
“an investigation to determine the effects on the national
security of imports of steel.” Notice Request for Public
Comments and Public Hearing on Section 232 National Se-
curity Investigation of Imports of Steel, 82 Fed. Reg.
19,205, 19,205 (Apr. 26, 2017). After following the pro-
cesses, and within the time, prescribed by § 1862(a), the
3 Subsection (f) is the final subsection of § 1862. It
narrowly addresses presidential action “to adjust imports
of petroleum or petroleum products” and, for that subject,
specifies that such action “shall cease to have force and ef-
fect upon the enactment of a disapproval resolution,” de-
fined as “a joint resolution of either House of Congress.”
§ 1862(f).
Case: 20-2157 Document: 66 Page: 10 Filed: 07/13/2021
10 TRANSPACIFIC STEEL LLC v. US
Secretary, on January 11, 2018, sent his report to the Pres-
ident. Publication of a Report on the Effect of Imports of
Steel on the National Security: An Investigation Conducted
Under Section 232 of the Trade Expansion Act of 1962, as
Amended, 85 Fed. Reg. 40,202 (July 6, 2020) (January 2018
report).
The Secretary found that “the present quantities and
circumstance of steel imports are weakening our internal
economy and threaten to impair the national security as
defined in Section 232.” Id. at 40,204 (internal quotation
marks omitted). Underlying that finding, the Secretary ex-
plained, were “[n]umerous U.S. steel mill closures, a sub-
stantial decline in employment, lost domestic sales and
market share, and marginal annual net income for U.S.-
based steel companies.” Id. Because the “declining steel
capacity utilization rate is not economically sustainable,”
the Secretary reported that “the only effective means of re-
moving the threat of impairment is to reduce imports to a
level that should, in combination with good management,
enable U.S. steel mills to operate at 80 percent or more of
their rated production capacity.” Id.
Based on the finding of a need for 80% average capacity
utilization for the sustainable industry required to remove
the national-security threat, the Secretary made several
recommendations about how to adjust imports that were
leaving domestic plants underutilized. The first option was
a “global quota or tariff.” Id. at 40,205. For the global
quota, the Secretary recommended a quota limiting steel
imports to 63% of 2017 import levels; for the global tariff,
the Secretary recommended a 24% tariff on all steel im-
ports. Id. The second option was “tariffs on a subset of
countries.” Id. Under that approach, the Secretary recom-
mended a 53% tariff on all steel imports from “Brazil,
South Korea, Russia, Turkey, India, Vietnam, China, Thai-
land, South Africa, Egypt, Malaysia and Costa Rica.” Id.
For every option, the Secretary noted that “the President
could determine that specific countries should be exempted
Case: 20-2157 Document: 66 Page: 11 Filed: 07/13/2021
TRANSPACIFIC STEEL LLC v. US 11
from the proposed” quota or tariff. Id. But if the President
determined that certain countries should be exempt, the
“Secretary recommend[ed] that any such determination
should be made at the outset and a corresponding adjust-
ment be made to the final quota or tariff imposed on the
remaining countries.” Id. at 40,205–06.
The Secretary further recommended “an appeal pro-
cess by which affected U.S. parties could seek an exclusion
from the tariff or quota imposed.” Id. at 40,206. Under
that process, the “Secretary would grant exclusions based
on a demonstrated: (1) lack of sufficient U.S. production ca-
pacity of comparable products; or (2) specific national secu-
rity based considerations.” Id. If an exclusion was granted,
the Secretary would also “consider at the time whether the
quota or tariff for the remaining products needs to be ad-
justed to increase U.S. steel capacity utilization to a finan-
cially viable target of 80 percent.” Id.
2
After receiving the Secretary’s January 11, 2018 re-
port, with its finding that imports of steel articles threat-
ened to impair national security because they were
preventing 80% domestic capacity utilization, the Presi-
dent issued several proclamations relevant here.
Proclamation 9705. On March 8, 2018, well within the
prescribed 90 days of receiving the report, the President is-
sued Proclamation 9705. 83 Fed. Reg. 11,625 (Mar. 15,
2018). The President stated that he “concur[red] in the
Secretary’s finding” on steel articles and had “considered
[the Secretary’s] recommendations.” Id. at 11,626, ¶ 5.
The President “decided to adjust the imports of steel arti-
cles by imposing a 25 percent ad valorem tariff on steel ar-
ticles . . . imported from all countries except Canada and
Mexico.” Id. at 11,626, ¶ 8. The tariffs would take effect
on March 23, 2018, and “continue in effect, unless such ac-
tions are expressly reduced, modified, or terminated.” Id.
at 11,627–28, § 5(a).
Case: 20-2157 Document: 66 Page: 12 Filed: 07/13/2021
12 TRANSPACIFIC STEEL LLC v. US
On the exception, the President explained that “Can-
ada and Mexico present a special case” because of the coun-
tries’ “close relation” with and “physical proximity” to the
United States and because the President sought “to con-
tinue ongoing discussions with these countries.” Id. at
11,626, ¶ 10. The President also stated his willingness to
negotiate with “[a]ny country” that has “a security relation-
ship” with the United States in order to discuss “alterna-
tive ways to address the threatened impairment of the
national security caused by imports from that country.” Id.
at 11,626, ¶ 9. The President highlighted, though, that if
the negotiations led to an agreement with a country with
“a satisfactory alternative means to address” the national-
security threat, he “may remove or modify the restriction
on steel articles imports from that country and, if neces-
sary, make any corresponding adjustments to the tariff as
it applies to other countries as our national security inter-
ests require.” Id. (emphasis added). In other words, a ne-
gotiated deal with one country, if it was generous regarding
steel imports from that country, might require lowering im-
ports from other countries by raising the initial tariff im-
posed on them, so that the 80% capacity-utilization level
could be reached.
To facilitate the planned course of action, the President
ordered the Secretary to “continue to monitor imports of
steel articles,” to consult “from time to time” with various
officials “as the Secretary deems appropriate,” and to “re-
view the status of such imports with respect to the national
security.” Id. at 11,628, § 5(b). He also ordered the Secre-
tary to “inform the President of any circumstances that in
the Secretary’s opinion might indicate the need for further
action by the President” or if “the increase in duty rate pro-
vided for in this proclamation is no longer necessary.” Id.
Proclamations 9711, 9740, and 9759. Thereafter, the
President negotiated with many countries, made agree-
ments with some, and adjusted tariffs on countries that did
not negotiate or reach an agreement with the United
Case: 20-2157 Document: 66 Page: 13 Filed: 07/13/2021
TRANSPACIFIC STEEL LLC v. US 13
States. For example, two weeks after Proclamation 9705,
the President issued Proclamation 9711. 83 Fed. Reg.
13,361 (Mar. 22, 2018). In that proclamation, the Presi-
dent highlighted that several countries reached out to dis-
cuss “satisfactory alternative means to address the
threatened impairment to the national security” and noted
that he “determined that the necessary and appropriate
means to address the threat to the national security posed
by imports of steel articles from these countries is to con-
tinue ongoing discussions and to increase strategic part-
nership.” Id. at 13,361, ¶ 4 and 13,362, ¶ 10. The
President concluded: “[D]iscussions regarding measures to
reduce excess steel production and excess steel capacity,
measures that will increase domestic capacity utilization,
and other satisfactory alternative means will be most pro-
ductive if the tariff proclaimed in Proclamation 9705 on
steel articles imports from these countries is removed at
this time.” Id. at 13,362, ¶ 10. Still, the President de-
clared, the exemption would expire on May 1, 2018, if no
agreement was reached. Id. at 13,362, ¶ 11. And if an
agreement was reached, the President said (as he did in
Proclamation 9705), “corresponding adjustments to the
tariff” previously set for other countries would be consid-
ered. Id.
About five weeks later, on April 30, 2018, the President
issued Proclamation 9740 announcing agreements and fur-
ther negotiations. 83 Fed. Reg. 20,683 (May 7, 2018). The
President announced that negotiations with South Korea
had succeeded, producing an agreement “on a range of
measures, . . . including a quota that restricts the quantity
of steel articles imported into the United States from South
Korea.” Id. at 20,683, ¶ 4. The President also reported that
the “United States has agreed in principle with Argentina,
Australia, and Brazil on satisfactory alternative means”
and temporarily exempted those countries from the 25% ad
valorem tariff “to finalize the details” of the agreements.
Id. at 20,684, ¶ 5. And he noted that the United States was
Case: 20-2157 Document: 66 Page: 14 Filed: 07/13/2021
14 TRANSPACIFIC STEEL LLC v. US
“continuing discussions with Canada, Mexico and the [Eu-
ropean Union].” Id. at 20,684, ¶ 6.
Later, on May 31, 2018, the President, in Proclamation
9759, announced that the United States had reached
agreements with Argentina, Australia, and Brazil. 83 Fed.
Reg. 25,857, 25,857–58 (June 5, 2018).
Proclamations 9772 and 9886. On August 10, 2018,
just over five months after the President issued the first
proclamation (Proclamation 9705), he issued the proclama-
tion challenged here by Transpacific, i.e., Proclamation
9772. 83 Fed. Reg. 40,429 (Aug. 15, 2018). The President
explained that the Secretary had monitored imports of
steel articles (as directed in Proclamation 9705) and, based
on that monitoring, the Secretary had “informed [the Pres-
ident] that while capacity utilization in the domestic steel
industry has improved, it is still below the target capacity
utilization level” identified in the January 2018 report and
imports were “still several percentage points greater than
the level of imports that would allow domestic capacity uti-
lization to reach the target level.” Id. at 40,429, ¶¶ 3–4.
The President added that in the “January 2018 report, the
Secretary recommended . . . applying a higher tariff to a
list of specific countries” if the President “determine[d] that
all countries should not be subject to the same tariff.” Id.
at 40,429, ¶ 6. The President also noted that the Secre-
tary’s report had Turkey on the list and that the report ex-
plained that “Turkey is among the major exporters of steel
to the United States for domestic consumption.” Id. Then
the President declared: “To further reduce imports of steel
articles and increase domestic capacity utilization, I have
determined that it is necessary and appropriate to impose
a 50 percent ad valorem tariff on steel articles imported
from Turkey, beginning on August 13, 2018.” Id. The Pres-
ident also highlighted that the Secretary had advised him
that the adjustment on steel imports from Turkey “will be
a significant step toward ensuring the viability of the do-
mestic steel industry.” Id.
Case: 20-2157 Document: 66 Page: 15 Filed: 07/13/2021
TRANSPACIFIC STEEL LLC v. US 15
The 50% ad valorem tariff on Turkish steel remained
in place for just under nine months—until May 21, 2019—
when it returned to 25%. See Proclamation 9886 of May
16, 2019, 84 Fed. Reg. 23,421 (May 21, 2019). In the proc-
lamation announcing the return to the 25% level, the Pres-
ident stated that the Secretary had advised him “that,
since the implementation of the higher tariff under Procla-
mation 9772, . . . the domestic industry’s capacity utiliza-
tion ha[d] improved . . . to approximately the target level
recommended in the Secretary’s report.” Id. at 23,421–22,
¶ 6. The President determined that “[t]his target level, if
maintained for an appropriate period, will improve the fi-
nancial viability of the domestic steel industry over the
long term.” Id. at 23,422, ¶ 6. “Given these improve-
ments,” the President “determined that it [wa]s necessary
and appropriate to remove the higher tariff on steel im-
ports from Turkey imposed by Proclamation 9772, and to
instead impose a 25 percent ad valorem tariff on steel im-
ports from Turkey.” Id. at 23,422, ¶ 7. The President also
determined that “[m]aintaining the existing 25 percent ad
valorem tariff on most countries [wa]s necessary and ap-
propriate at this time to address the threatened impair-
ment of the national security that the Secretary found in
the January 2018 report.” Id.
C
On January 17, 2019, while the 50% tariff was in effect,
Transpacific sued the United States, two agencies of the
United States (the Department of Commerce and U.S. Cus-
toms and Border Protection), the President, and the heads
of the two agencies, invoking the Trade Court’s jurisdiction
under 28 U.S.C. § 1581(i)(2), (4). See Transpacific Steel
LLC v. United States, No. 1:19-cv-00009, ECF No. 6 (Ct.
Int’l Trade Jan. 17, 2019) (Complaint). Transpacific
amended its complaint on April 2, 2019, naming the same
defendants. J.A. 95. Like the original complaint, the
amended complaint alleged that Proclamation 9772 was
unlawful because the President exceeded his authority
Case: 20-2157 Document: 66 Page: 16 Filed: 07/13/2021
16 TRANSPACIFIC STEEL LLC v. US
under 19 U.S.C. § 1862 and violated the Fifth Amend-
ment’s guarantees of equal protection and of procedural
due process. J.A. 95–559.
On April 3, 2019, the government moved to dismiss the
suit for failure to state a claim, and on November 15, 2019,
the Trade Court denied the motion. Transpacific Steel LLC
v. United States, 415 F. Supp. 3d 1267, 1269 (Ct. Int’l Trade
2019) (Transpacific I). The Trade Court held that Trans-
pacific stated a claim that the timing provisions of § 1862(c)
foreclosed the President from doing what he did here,
namely, announce and put into effect a plan of action
within the statutory time periods (as the President did in
Proclamation 9705), and then raise tariffs pursuant to the
implemented plan after those deadlines passed (as the
President did in Proclamation 9772) without obtaining a
new report from the Secretary produced through the stat-
utorily specified procedure. Id. at 1274–76. The Trade
Court also determined that Transpacific stated a claim
that Proclamation 9772 violated the Fifth Amendment’s
equal-protection guarantee because it alleged that there
was “no set of facts that justify identifying importers of
steel from Turkey as a class of one.” Id. at 1272. As for the
procedural-due-process claim, the Trade Court did not
reach it because the court determined that the President
violated the procedural constraints of § 1862. Id. at 1276.
Shortly thereafter, the other appellees were permitted
to intervene as co-plaintiffs. See J.A. 64–65. On January
21, 2020, the parties jointly moved for a judgment on the
agency record. J.A. 65. About six months later, on July 14,
2020, the Trade Court issued an opinion and entered judg-
ment for Transpacific. Transpacific Steel LLC v. United
States, 466 F. Supp. 3d 1246, 1249 (Ct. Int’l Trade 2020)
(Transpacific II); J.A. 1–2 (Judgment). The Trade Court
concluded that Proclamation 9772 was unlawful because
the President violated a statutory timing constraint of
§ 1862 and because singling out importers of Turkish steel
Case: 20-2157 Document: 66 Page: 17 Filed: 07/13/2021
TRANSPACIFIC STEEL LLC v. US 17
products denied them the constitutionally guaranteed
equal protection of the laws.
As to § 1862, the court maintained its view that “there
is nothing in the statute to support the continuing author-
ity to modify Proclamations outside of the stated time-
lines.” Transpacific II, 466 F. Supp. 3d at 1253. Although
the Trade Court recognized that § 1862 before the 1988
amendments let the President “modify previous Proclama-
tions as a form of continuing authority,” the court ex-
plained that “the statutory scheme has since been altered,
and the court must give meaning to those alterations.” Id.
“The 1988 amendments prescribed time limits,” the court
noted, “but also deleted language that could be read to give
the President the power to continually modify Proclama-
tions.” Id. And the court repeated that nondelegation con-
cerns reinforced its reading. Id. The Trade Court therefore
held that “‘modifications’ of existing Proclamations under
the current statutory scheme, without following the proce-
dures in the statute, are not permitted.” Id.
As to equal protection, the Trade Court concluded that
the government flunked the rational-basis standard. “Sin-
gling out steel products from Turkey,” reasoned the court,
“is not a rational means of addressing” the government’s
national-security concern. Id. at 1258. According to the
court, the “status quo under normal trade relations is equal
tariff treatment of similar products irrespective of country
of origin. Although deviation from this general principle is
allowable, such deviation cannot be arbitrarily and irra-
tionally enforced in a way that treats similarly situated
classes differently without permissible justification.” Id.
(citation omitted). The court, seeing no permissible justifi-
cation, concluded: “Proclamation 9772 denies [Transpa-
cific] the equal protection of the law.” Id.
The court then addressed Transpacific’s procedural-
due-process argument. It stated: “[T]he process [Transpa-
cific] request[s] is simply that the government be made to
Case: 20-2157 Document: 66 Page: 18 Filed: 07/13/2021
18 TRANSPACIFIC STEEL LLC v. US
comply with the procedures laid out in the statute. Be-
cause we hold that [Transpacific is] entitled to that process
under the statute, we need not also answer whether any
constitutional guarantees of Due Process were violated.”
Id. at 1259. The court added: “Whatever constitutional
minimum process might be owed, it is satisfied by requir-
ing that the President abide by the statute’s procedures.”
Id.
The same day, the Trade Court entered final judgment.
J.A. 1. The court ordered that Proclamation 9772 “is de-
clared unlawful and void” and ordered that the “United
States Customs and Border Protection refund [Transpa-
cific] the difference between any tariffs collected on its im-
ports of steel products” under Proclamation 9772 “and the
25% ad valorem tariff that would otherwise apply on these
imports together with such costs and interest as provided
by law.” J.A. 1–2. 4
The government timely appealed the Trade Court’s
judgment. We have jurisdiction under 28 U.S.C.
§ 1295(a)(5). 5
4 The government moved to stay enforcement of the
judgment’s refund order pending appeal. The Trade Court
denied the stay, Transpacific Steel LLC v. United States,
474 F. Supp. 3d 1332 (Ct. Int’l Trade 2020), and this court
denied the government’s request that we stay the order
pending appeal, Transpacific Steel LLC v. United States,
840 F. App’x 517 (Fed. Cir. 2020).
5 Transpacific invoked the Trade Court’s jurisdiction un-
der a provision that gives that court jurisdiction over “any
civil action commenced against the United States, its agen-
cies, or its officers, that arises out of any law of the United
States providing for” certain tariffs or duties of the sort at
issue here. 28 U.S.C. § 1581(i). The provision clearly co-
vers this case, with one possible, limited exception: There
Case: 20-2157 Document: 66 Page: 19 Filed: 07/13/2021
TRANSPACIFIC STEEL LLC v. US 19
II
The government challenges the Trade Court’s rulings
that Proclamation 9772 violated 19 U.S.C. § 1862 and the
Fifth Amendment’s guarantee of equal protection. In re-
sponse, Transpacific defends those rulings, but it does not
present here, or seek a conditional remand to press, its pro-
cedural-due-process challenge, which we therefore deem
dropped. And although Transpacific briefly asserts a non-
delegation challenge simply to preserve it, we have already
rejected such a challenge, American Inst. for Int’l Steel, 806
F. App’x at 983, and Transpacific has presented no devel-
oped argument on nondelegation that warrants additional
discussion. Accordingly, we limit ourselves to the § 1862
and equal-protection issues.
We review the judgment on the agency record without
deference. See Fedmet Resources Corp. v. United States,
is a question (not raised by any party) whether the claim
against the President comes within the provision. See Co-
rus Group PLC v. Int’l Trade Comm’n, 352 F.3d 1351, 1359
(Fed. Cir. 2003) (concluding that the President is not an
“officer[]” under § 1581(i) and dismissing claim against the
President); PrimeSource Bldg. Prods., Inc. v. United States,
497 F. Supp. 3d 1333, 1365–70 (Ct. Int’l Trade 2021)
(Baker, J., concurring in part and dissenting in part) (dis-
cussing the question). We need not address that question
because jurisdiction existed over the claims against the
other defendants and jurisdiction exists here to review the
Trade Court’s judgment. Cf. Trump v. Hawaii, 138 S. Ct.
2392, 2416 (2018) (for standing, all that need be decided is
that one plaintiff has standing); Horne v. Flores, 557 U.S.
433, 445 (2009) (same). We reverse and remand this case
for entry of judgment against Transpacific; but in the re-
mand, the Trade Court may decide whether the judgment
against Transpacific should include dismissal of the claim
against the President.
Case: 20-2157 Document: 66 Page: 20 Filed: 07/13/2021
20 TRANSPACIFIC STEEL LLC v. US
755 F.3d 912, 918 (Fed. Cir. 2014). This appeal involves
only legal issues, which we decide de novo. See GPX Int’l
Tire Corp. v. United States, 780 F.3d 1136, 1140 (Fed. Cir.
2015).
A
The Trade Court concluded that § 1862 prohibited the
President from raising tariffs in Proclamation 9772 be-
cause the President issued that proclamation after the 90-
day period for the President to decide to concur or disagree
with the Secretary’s January 2018 finding of threat and to
determine how to respond to the threat, and after the 15-
day period for the President to implement the chosen re-
sponse, without obtaining a new finding of threat from the
Secretary. The Trade Court so concluded even though:
Proclamation 9772 was a further implementation of Proc-
lamation 9705; Proclamation 9705 was issued within the
two specified time periods and expressly provided for fu-
ture adjustments; and Proclamation 9772 adhered to the
basis of the threat finding in the Secretary’s January 2018
report, namely, the need for a particular domestic-plant
utilization level, which the implementation measures had
not yet achieved. We reverse. In these circumstances, we
conclude that the Trade Court erred in determining that
the President’s issuance of Proclamation 9772 violated
§ 1862.
The key issue is whether § 1862(c)(1) permits the Pres-
ident to announce a continuing course of action within the
statutory time period and then modify the initial imple-
menting steps in line with the announced plan of action by
adding impositions on imports to achieve the stated imple-
mentation objective. We conclude that the President does
have such authority in the circumstances presented here.
Specifically, we conclude that the best reading of the stat-
utory text of § 1862, understood in context and in light of
the evident purpose of the statute and the history of prede-
cessor enactments and their implementation, is that the
Case: 20-2157 Document: 66 Page: 21 Filed: 07/13/2021
TRANSPACIFIC STEEL LLC v. US 21
authority of the President includes authority to adopt and
carry out a plan of action that allows adjustments of spe-
cific measures, including by increasing import restrictions,
in carrying out the plan over time. Transpacific does not
argue that Proclamation 9772 is unlawful under the stat-
ute if, as we conclude, the President has the authority to
adopt and pursue such a continuing course of action.
In our statutory analysis, we consider text and context,
including purpose and history. Judge Reyna, in dissent,
reaches different conclusions about these considerations
and about the bottom-line result. Our discussion of the in-
dividual considerations provides, without further direct
reference to Judge Reyna’s dissent, the reasons we take a
different view on the points of disagreement.
1
We start with the text of 19 U.S.C. § 1862(c)(1) and its
“ordinary meaning at the time Congress enacted the stat-
ute.” New Prime Inc. v. Oliveira, 139 S. Ct. 532, 539 (2019)
(cleaned up). Subsection (c)(1) states:
(c) Adjustment of imports; determination by Presi-
dent; report to Congress; additional actions; publi-
cation in Federal Register
(1)(A) Within 90 days after receiving a re-
port submitted under subsection (b)(3)(A)
in which the Secretary finds that an article
is being imported into the United States in
such quantities or under such circum-
stances as to threaten to impair the na-
tional security, the President shall—
(i) determine whether the Presi-
dent concurs with the finding of the
Secretary, and
(ii) if the President concurs, deter-
mine the nature and duration of
Case: 20-2157 Document: 66 Page: 22 Filed: 07/13/2021
22 TRANSPACIFIC STEEL LLC v. US
the action that, in the judgment of
the President, must be taken to ad-
just the imports of the article and
its derivatives so that such imports
will not threaten to impair the na-
tional security.
(B) If the President determines under sub-
paragraph (A) to take action to adjust im-
ports of an article and its derivatives, the
President shall implement that action by
no later than the date that is 15 days after
the day on which the President determines
to take action under subparagraph (A).
§ 1862(c)(1).
Paragraph (1) contains several time directives.
“Within 90 days after receiving a report” with a finding
that importation of an article threatens to impair national
security, the President “shall,” first, “determine whether
the President concurs with the finding of the Secretary,”
§ 1862(c)(1)(A)(i), and, second, if the President concurs,
“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 im-
ports will not threaten to impair the national security,”
§ 1862(c)(1)(A)(ii). Then, if the President has concurred in
the finding of threat and determined the action to be taken
in response, the President “shall implement that action by
no later than the date that is 15 days after the day on which
the President determines to take action under subpara-
graph (A).” § 1862(c)(1)(B).
The Trade Court’s interpretation of subsection (c)(1)’s
time directives does not follow from the ordinary meaning
of the provision’s language at the time of enactment. In
two ways, the Trade Court took too narrow a view of what
the ordinary meaning allows.
Case: 20-2157 Document: 66 Page: 23 Filed: 07/13/2021
TRANSPACIFIC STEEL LLC v. US 23
First: The Trade Court indicated its view that the “nec-
essary implication” of the timing provisions was that no
burden-increasing action could be taken after the specified
times. Transpacific I, 415 F. Supp. 3d at 1275 n.13; Trans-
pacific II, 466 F. Supp. 3d at 1252 (“[T]he temporal re-
strictions on the President’s power to take action pursuant
to a report and recommendation by the Secretary is not a
mere directory guideline, but a restriction that requires
strict adherence. To require adherence to the statutory
scheme does not amount to a sanction, but simply ensures
that the deadlines are given meaning and that the Presi-
dent is acting on up-to-date national security guidance.”).
But that is not a necessary implication of the words.
As a matter of ordinary meaning, a command to “take
this action by time T” is often, in substance, a compound
command—one, a directive (with conferral of authority) to
take the action, and, two, a directive to do so by the pre-
scribed time. A violation of the temporal obligation im-
posed by the second directive does not necessarily negate
the primary obligation imposed by—let alone the grant of
authority implicit in—the first directive. For example:
Most people would understand the directive “return the car
by 11 p.m.” to require the return of the car even after 11
p.m. See, e.g., Henson v. Santander Consumer USA Inc.,
137 S. Ct. 1718, 1722 (2017) (using a conversation between
friends to show ordinary meaning). That is why a real ad-
dition of meaning, or at least a resolution of uncertainty,
results when “take this action by time T” is followed by
words like “or else don’t take it at all.”
The Supreme Court has recognized this linguistic point
in the context of statutory commands to executive officers
to take action within a specified time. It has made clear
that such a command does not, without more, entail lack of
authority, or of obligation, to take the action after that date
has passed, even though the obligation to act by the speci-
fied time has been violated. The Court so ruled in 1986 in
Brock v. Pierce County, concluding that “the mere use of the
Case: 20-2157 Document: 66 Page: 24 Filed: 07/13/2021
24 TRANSPACIFIC STEEL LLC v. US
word ‘shall’ in [a statute], standing alone, is not enough to
remove the [official’s] power to act after” the time deadline.
476 U.S. 253, 262 (1986). As the Supreme Court summa-
rized the point some years later, Brock held that the par-
ticular time command was “meant ‘to spur the Secretary to
action, not to limit the scope of his authority,’ so that un-
timely action was still valid.” Barnhart v. Peabody Coal
Co., 537 U.S. 149, 158 (2003) (quoting Brock, 476 U.S. at
265). In 2003, the Court emphasized: “Nor, since Brock,
have we ever construed a provision that the Government
‘shall’ act within a specified time, without more, as a juris-
dictional limit precluding action later.” Id.; see also, e.g.,
id. at 157 (“It misses the point simply to argue that the Oc-
tober 1, 1993, date was ‘mandatory,’ ‘imperative,’ or a
‘deadline,’ as of course it was, however unrealistic the man-
date may have been.”); id. at 160–61 (explaining that Brock
made clear that “a statute directing official action needs
more than a mandatory ‘shall’ before the grant of power can
sensibly be read to expire when the job is supposed to be
done”); United States v. James Daniel Good Real Prop., 510
U.S. 43, 63 (1993) (“[I]f a statute does not specify a conse-
quence for noncompliance with statutory timing provi-
sions, the federal courts will not in the ordinary course
impose their own coercive sanction.”); United States v.
Montalvo-Murillo, 495 U.S. 711, 718–19 (1990); Nielsen v.
Preap, 139 S. Ct. 954, 967–68 (2019) (Alito, J., joined by
Roberts, C.J., and Kavanaugh, J.).
The commonsense linguistic point, and its application
in the statutory setting, formed the backdrop to Congress’s
amendments to § 1862 in 1988. The Brock decision issued
two years before Congress’s amendments. See Barnhart,
537 U.S. at 160 (“The Coal Act was adopted six years after
Brock came down, when Congress was presumably aware
that we do not readily infer congressional intent to limit an
agency’s power to get a mandatory job done merely from a
specification to act by a certain time.”); Nielsen, 139 S. Ct.
at 967 (Alito, J., joined by Roberts, C.J., and Kavanaugh,
Case: 20-2157 Document: 66 Page: 25 Filed: 07/13/2021
TRANSPACIFIC STEEL LLC v. US 25
J.) (“This principle for interpreting time limits on statutory
mandates was a fixture of the legal backdrop when Con-
gress enacted [the statute at issue].”). We thus disagree
with the Trade Court to the extent that it viewed the expi-
ration of the time periods in § 1862(c)(1), standing alone,
as automatically equating to the expiration of the Presi-
dent’s authority to take further burden-increasing steps, as
he did here.
Second: The Trade Court’s ruling also appears to rest
on a premise that the provisions of § 1862(c)(1) at issue ap-
ply their time requirements to each individual discrete im-
position on imports, rather than to the adoption and
initiation of a plan of action or course of action (with choices
to impose particular burdens in the carrying out of the plan
permissibly made later in time). The language of the pro-
visions, however, does not support that premise.
The terms “action” and “take action” are not limited in
that way, but can readily be used to refer to a process or
launch of a series of steps over time. See, e.g., Action,
Black’s Law Dictionary 49 (4th ed. 1957) (“an act or series
of acts”); Black’s Law Dictionary 26 (5th ed. 1979) (same);
Garner’s Dictionary of Modern Legal Usage 19 (2d ed.
1995) (“action suggests a process—the many discrete
events that make up a bit of behavior—whereas act is uni-
tary”); Garner’s Dictionary of Legal Usage 18 (3d ed. 2011)
(same); Black’s Law Dictionary 37 (11th ed. 2019) (“The
process of doing something”); see also, e.g., Action, Random
House Webster’s Unabridged Dictionary 20 (2d ed. 2001)
(similar); American Heritage Dictionary 17 (3d ed. 1992)
(similar); Garner’s Dictionary of Modern American Usage
14 (1998) (“Act is unitary, while action suggests a process—
the many discrete events that make up a bit of behavior.”);
Garner’s Modern American Usage 16 (3d ed. 2009) (same).
The authorization for the President to determine the “na-
ture and duration of the action,” § 1862(c)(1)(A)(ii), sup-
ports, rather than excludes, coverage of a plan
implemented over time, including options for contingency-
Case: 20-2157 Document: 66 Page: 26 Filed: 07/13/2021
26 TRANSPACIFIC STEEL LLC v. US
dependent choices that are a commonplace feature of plans
of action. The phrase “implement that action,”
§ 1862(c)(1)(B), likewise conveys an understanding of “ac-
tion” as covering plans of action. See Implement, 1 Shorter
Oxford English Dictionary 1330 (5th ed. 2002) (“put (a de-
cision or plan) into effect” (emphasis added)); The Ameri-
can Heritage Dictionary of the English Language 660
(1981) (“To provide a definite plan or procedure to ensure
the fulfillment of” (emphasis added)); see also, e.g., Imple-
ment, Webster’s New World Dictionary of American Eng-
lish 677 (3rd College ed. 1988) (“to carry into effect” or “give
practical effect to”); Random House College Dictionary 667
(Revised ed. 1982) (“to put into effect according to or by
means of a definite plan or procedure”).
In short, the ordinary meaning of “action” in context
indicates that the time directive applies to the announce-
ment and adoption of the plan of action rather than each
act following the adopted plan. Cf. H.R. Rep. No. 100-576,
at 711 (1988) (Conf. Rep.) (“The House bill requires the
President to decide whether to take action within 90 days
after receiving the Secretary’s report, and to proclaim such
action within 15 days.” (emphasis added)).
2
What the terms of subsection (c)(1) indicate, relevant
statutory context reinforces. See Merit Mgt. Group, LP v.
FTI Consulting, Inc., 138 S. Ct. 883, 892–93 (2018) (consid-
ering “[t]he language of [the provision at issue], the specific
context in which that language is used, and the broader
statutory structure”); Johnson v. United States, 559 U.S.
133, 139 (2010) (“Ultimately, context determines mean-
ing.”); Antonin Scalia & Bryan A. Garner, Reading Law:
The Interpretation of Legal Texts § 24, at 167 (2012) (“[T]he
whole-text canon . . . calls on the judicial interpreter to con-
sider the entire text, in view of its structure and of the
physical and logical relation of its many parts.”).
Case: 20-2157 Document: 66 Page: 27 Filed: 07/13/2021
TRANSPACIFIC STEEL LLC v. US 27
Paragraph (3) specifically bolsters the understanding
that the President is not barred, by paragraph (1), from
adopting, outside the 15-day period for implementation,
specific new burden-imposing measures not decided on and
adopted within the period. Paragraph (3) so indicates for
the situation when the initially proclaimed action is (bilat-
eral or multilateral) negotiation:
(3)(A) If—
(i) the action taken by the President under
paragraph (1) is the negotiation of an
agreement which limits or restricts the im-
portation into, or the exportation to, the
United States of the article that threatens
to impair national security, and
(ii) either—
(I) no such agreement is entered
into before the date that is 180 days
after the date on which the Presi-
dent makes the determination un-
der paragraph (1)(A) to take such
action, or
(II) such an agreement that has
been entered into is not being car-
ried out or is ineffective in elimi-
nating the threat to the national
security posed by imports of such
article,
the President shall take such other actions as the
President deems necessary to adjust the imports of
such article so that such imports will not threaten
to impair the national security. The President
shall publish in the Federal Register notice of any
additional actions being taken under this section
by reason of this subparagraph.
Case: 20-2157 Document: 66 Page: 28 Filed: 07/13/2021
28 TRANSPACIFIC STEEL LLC v. US
§ 1862(c)(3)(A).
Subparagraph (A) indicates that one of the President’s
options is to try to secure agreements with foreign nations.
Negotiation and agreement themselves will typically occur
after the 15 days specified in subsection (c)(1)(B) have
passed. That is all the more true of the “other actions” the
President is directed to take if negotiations fail or if result-
ing agreements are violated or are ineffective in eliminat-
ing the national-security threat. Those provisions run
counter to the Trade Court’s view that Congress forbade
presidential imposition of newly specified burdens after
§ 1862(c)(1)’s 90-day and 15-day periods. 6
More generally, § 1862’s “evident purpose” is an aspect
of the context that must be assessed to determine the fair
reading of the statute. See Scalia & Garner, Reading Law
§ 4, at 63 (The presumption against ineffectiveness “follows
inevitably from the facts that (1) interpretation always de-
pends on context, (2) context always includes evident pur-
pose, and (3) evident purpose always includes
effectiveness.”); see also id. § 3, at 56 (“[C]ontext includes
the purpose of the text.”). The manifest purpose of this
statute is to enable and obligate the President (in whom
Congress vested the power to make the remedial judg-
ments) to effectively alleviate the threat to national secu-
rity identified in a finding by the Secretary with which the
President has concurred. Reading § 1862(c)(1) to permit
6 Although the government in this case has not spe-
cifically argued that the President, in Proclamation 9772,
determined that the steel-import agreements already en-
tered into were “ineffective in eliminating the threat to the
national security,” § 1862(c)(3)(A)(ii)(II), it is not clear
what substantive difference there is between that formula-
tion and the President’s declaration in the proclamation
that further restrictions on imports were needed to meet
the capacity-utilization target.
Case: 20-2157 Document: 66 Page: 29 Filed: 07/13/2021
TRANSPACIFIC STEEL LLC v. US 29
announcement of a plan within the specified 15 days, fol-
lowed by implementation decisions reflecting contingencies
affecting achievement of the goal defined by the Secretary’s
finding, furthers that evident purpose.
This does not mean that the statutory purpose is fur-
thered by permitting any presidential imposition after the
15-day period, even an imposition that makes no sense ex-
cept on premises that depart from the Secretary’s finding,
whether because the finding is simply too stale to be a basis
for the new imposition or for other reasons. The statute
indisputably incorporates a congressional judgment that
an affirmative finding of threat by the Secretary is the
predicate for presidential action, while also incorporating
a congressional judgment that how to address the problem
identified in the finding is a matter for the President,
whose choices about remedy are not constrained by the Sec-
retary’s recommendations. See § 1862(c)(1) (predicating
the President’s power on the Secretary’s “find[ing]” and not
the Secretary’s “recommendations”). This case involves
presidential adherence to the key finding of a need for a
certain capacity-utilization level, with no indication of
staleness of that finding. We have no occasion to rule on
other circumstances or to decide what aspects of presiden-
tial decisions under § 1862 are judicially reviewable.
It is enough to say that the Trade Court’s categorical
narrow reading of § 1862(c)(1)—precluding all impositions
adopted after the 15-day period in implementation of a
plan announced within the period—obstructs the statutory
purpose. This case illustrates why. The threat to national
security was tied to an excess of imports overall, from nu-
merous countries, that left domestic capacity utilized less
than an identified, plant-sustaining level. As the President
struck deals with some countries as contemplated by Proc-
lamation 9705, the agreed-to imports from those countries
would logically affect—most relevantly, could reduce—the
volume of imports from other countries, lacking agree-
ments with the United States, that could be allowed if the
Case: 20-2157 Document: 66 Page: 30 Filed: 07/13/2021
30 TRANSPACIFIC STEEL LLC v. US
stated goal of overall-imports reduction was still to be met.
Paragraph (3) of § 1862(c) and Proclamation 9705 recog-
nize this evident relationship. To prevent the President
from increasing the impositions on non-agreement coun-
tries after the initial plan announcement would be to im-
pede the President’s ability to be effective in solving the
specific problem found by the Secretary.
Transpacific has suggested that the President’s author-
ity to act outside the 15-day period without securing a new
report from the Secretary is limited to relaxing impositions
imposed initially within that period. See Oral Arg. at
1:07:48–1:10:00; see also Transpacific I, 415 F. Supp. 3d at
1275 (asserting that “the statute specifically grants the
President power to ‘determine the . . . duration of the ac-
tion[,]’ a power to end any action” (alterations in original)
(quoting § 1862(c)(1)(A)(ii))). That suggestion, however, as-
sumes a negative answer to the key question of whether
the “action” authorized by paragraph (1) can be a plan un-
der which later measures are imposed. It does not provide
support for that answer. And that answer is not supported
by the ordinary meaning of the language and conflicts with
paragraph (3) of § 1862(c) and § 1862’s purpose entrusting
the President with the duty to adopt effective measures for
the threat found by the Secretary.
3
The “legal and historical backdrop” against which Con-
gress legislated confirms that under § 1862(c)(1) the Presi-
dent has authority to pursue a continuing course of action,
with adjustments (including additional impositions)
adopted over time. See Fed. Republic of Germany v.
Philipp, 141 S. Ct. 703, 712 (2021) (“Congress drafted the
expropriation exception and its predecessor, the Hick-
enlooper Amendment, against that legal and historical
backdrop.”); id. at 711 (interpreting the statute at issue
“[b]ased on this historical and legal background”).
Case: 20-2157 Document: 66 Page: 31 Filed: 07/13/2021
TRANSPACIFIC STEEL LLC v. US 31
a
Since 1955, Congress has delegated to the President
broad discretion to adjust imports of an article that
threaten to impair national security, if a designated execu-
tive officer has made a finding of such a threat. Subse-
quent amendments made changes, including changes to
enhance the process leading to the predicate finding at the
agency level and, at the presidential level, generally to add
to the President’s authority and obligation to act in re-
sponse to the relevant official’s threat finding. Through-
out, Congress has retained the key term “action” in
describing the President’s response.
Section 7 of the Trade Agreements Extension Act of
1955 provided in relevant part:
(b) In order to further the policy and purpose of this
section, whenever the Director of the Office of De-
fense Mobilization has reason to believe that any
article is being imported into the United States in
such quantities as to threaten to impair the na-
tional security, he shall so advise the President,
and if the President agrees that there is reason for
such belief, the President shall cause an immediate
investigation to be made to determine the facts. If,
on the basis of such investigation, and the report to
him of the findings and recommendations made in
connection therewith, the President finds that the
article is being imported into the United States in
such quantitates as to threaten to impair the na-
tional security, he shall take such action as he
deems necessary to adjust the imports of such arti-
cle to a level that will not threaten to impair the
national security.
Trade Agreements Extension Act of 1955, ch. 169, § 7, 69
Stat. 162, 166 (emphasis added). The provision gave the
executive officer the responsibility to make a preliminary
“reason to believe” finding, but it did not expressly declare
Case: 20-2157 Document: 66 Page: 32 Filed: 07/13/2021
32 TRANSPACIFIC STEEL LLC v. US
that the officer, after investigation, must make a positive
finding of threat as a precondition to presidential action.
In the Trade Agreements Extension Act of 1958, Con-
gress made that precondition explicit and also made other
amendments, while keeping the word “action.” See Algon-
quin, 426 U.S. at 568 (The 1958 amendments “added no
limitations with respect to the type of action that the Pres-
ident was authorized to take. The 1958 re-enactment, like
the 1955 provision, authorized the President under appro-
priate conditions to ‘take such action’ ‘as he deems neces-
sary to adjust the imports.’” (cleaned up)). The 1958
statute provided in relevant part:
(b) Upon request of the head of any Department or
Agency, upon application of an interested party, or
upon his own motion, the Director of the Office of
Defense and Civilian Mobilization (hereinafter in
this section referred to as the “Director”) shall im-
mediately make an appropriate investigation, in
the course of which he shall seek information and
advice from other appropriate Departments and
Agencies, to determine the effects on the national
security of imports of the article which is the sub-
ject of such request, application, or motion. If, as a
result of such investigation, the Director is of the
opinion that the said article is being imported into
the United States in such quantities or under such
circumstances as to threaten to impair the national
security, he shall promptly so advise the President,
and, unless the President determines that the arti-
cle is not being imported into the United States in
such quantities or under such circumstances as to
threaten to impair the national security as set forth
in this section, he shall take such action, and for
such time, as he deems necessary to adjust the im-
ports of such article and its derivatives so that such
imports will not so threaten to impair the national
security.
Case: 20-2157 Document: 66 Page: 33 Filed: 07/13/2021
TRANSPACIFIC STEEL LLC v. US 33
Pub. L. No. 85–686, § 8(b), 72 Stat. 673, 678 (emphases
added).
In addition to making explicit that the designated of-
ficer must make the threat finding, the 1958 provision em-
bodied four relevant changes from the 1955 version. First,
Congress expanded the President’s power by adding that
the President may adjust not only the “article” but also “its
derivatives,” even though the executive officer’s report had
to investigate only the “article.” Second, Congress clarified
that the President’s discretion for the “action” included not
only the nature of the action (i.e., “such action”) but its du-
ration (i.e., “for such time”). Third, Congress broadened
what would suffice as the predicate for the President’s au-
thority: “[W]hile under the 1955 provision the President
was authorized to act only on a finding that ‘quantities’ of
imports threatened to impair the national security, the
1958 provision also authorized Presidential action on a
finding that an article is being imported ‘under such cir-
cumstances’ as to threaten to impair the national security.”
Algonquin, 426 U.S. at 568 n.24. Fourth, Congress re-
moved the requirement that the relevant officer seek the
President’s approval before starting an investigation.
These features stayed materially the same until 1988.
In 1962, Congress reenacted the 1958 provision—with-
out material change, the Supreme Court has noted, though
some wording was altered (e.g., the predicate “opinion” be-
came a predicate “finding”)—as section 232 of the Trade
Expansion Act of 1962, Pub. L. No. 87–796, 76 Stat. 872,
977. See Algonquin, 426 U.S. at 568 (“When the national
security provision next came up for re-examination, it was
re-enacted without material change as § 232(b) of the
Trade Expansion Act of 1962.”). Between 1966 and 1988,
Congress made various changes to the statute that have
not been featured in the arguments made to this court in
this case. For example, in 1975, Congress made the Secre-
tary of the Treasury the official with the predicate-finding
responsibility and relocated the “unless” clause addressing
Case: 20-2157 Document: 66 Page: 34 Filed: 07/13/2021
34 TRANSPACIFIC STEEL LLC v. US
presidential disagreement with the predicate threat find-
ing. See Trade Act of 1974, Pub. L. No. 93–618, § 127(d)(3),
88 Stat. 1978, 1993 (replacing the Director of the Office of
Emergency Planning with the Secretary of the Treasury).
In 1980, Congress added a legislative-veto procedure for
presidential action adjusting imports of petroleum or pe-
troleum products. See Crude Oil Windfall Profit Tax Act of
1980, Pub. L. No. 96–223, § 402, 94 Stat. 229, 301.
Just before Congress enacted its amendments in 1988,
19 U.S.C. § 1862 read in relevant part:
Upon request of the head of any department or
agency, upon application of an interested party, or
upon his own motion, the Secretary of the Treasury
(hereinafter referred to as the “Secretary”) shall
immediately make an appropriate investigation, in
the course of which he shall seek information and
advice from, and shall consult with, the Secretary
of Defense, the Secretary of Commerce, and other
appropriate officers of the United States, to deter-
mine the effects on the national security of imports
of the article which is the subject of such request,
application, or motion.
The Secretary shall, if it is appropriate and after
reasonable notice, hold public hearings or other-
wise afford interested parties an opportunity to
present information and advice relevant to such in-
vestigation. The Secretary shall report the find-
ings of his investigation under this subsection with
respect to the effect of the importation of such arti-
cle in such quantities or under such circumstances
upon the national security and, based on such find-
ings, his recommendation for action or inaction un-
der this section to the President within one year
after receiving an application from an interested
party or otherwise beginning an investigation un-
der this subsection.
Case: 20-2157 Document: 66 Page: 35 Filed: 07/13/2021
TRANSPACIFIC STEEL LLC v. US 35
If the Secretary finds that such article is being im-
ported into the United States in such quantities or
under such circumstances as to threaten to impair
the national security, he shall so advise the Presi-
dent and the President shall take such action, and
for such time, as he deems necessary to adjust the
imports of such article and its derivatives so that
such imports will not threaten to impair the na-
tional security, unless the President determines
that the article is not being imported into the
United States in such quantities or under such cir-
cumstances as to threaten to impair the national
security.
§ 1862(b) (1980) (emphasis and paragraph breaks added).
In sum, from the beginning, Congress delegated broad
powers to the President to combat imports that a desig-
nated executive officer found to threaten to impair national
security. The word “action,” which reflected the President’s
broad discretion in determining the nature of the act, has
always been present. Congress broadened the President’s
already broad power in 1958 and, at the same time, rein-
forced the range of presidential discretion by adding the
phrase “for such time.”
b
Practice under § 1862 during the three decades leading
up to the 1988 amendments, and the understanding ex-
pressed during that time, provide strong confirmation that
the proper meaning of the language at issue here (added by
those amendments) is that presidential authority extends
to carrying out a course of remedial measures, including
measures that further restrict imports, chosen over time to
address the threat identified in the underlying finding. Cf.
Sosa v. Alvarez-Machain, 542 U.S. 692, 714 (2004) (“We
think history and practice give the edge to this latter posi-
tion.”).
Case: 20-2157 Document: 66 Page: 36 Filed: 07/13/2021
36 TRANSPACIFIC STEEL LLC v. US
i
From 1955 to 1988, Presidents frequently adjusted im-
ports, including by increasing impositions so as to restrict
imports, without seeking or obtaining a new formal inves-
tigation and report after the initial one. In 1959, acting
under the 1958 version of § 1862, the relevant official
(then, the Director of the Office of Civil and Defense Mobi-
lization) formally investigated and submitted a report to
the President stating “his opinion ‘that crude oil and the
principal crude oil derivatives and products are being im-
ported in such quantities and under such circumstances as
to threaten to impair the national security.’” Proclamation
3729, 24 Fed. Reg. 1,781, 1,781 (Mar. 12, 1959) (quoting the
report). The President agreed and issued Proclamation
3729, which put into place a scheme, including licenses, to
adjust the imports of crude oil and its derivatives. Id. The
President also ordered the “Secretary of the Interior [to]
keep under review the imports into [certain areas] of resid-
ual fuel oil to be used as fuel” and gave the Secretary the
authority to “make, on a monthly basis if required, such
adjustments in the maximum level of such imports as he
may determine to be consonant with the objectives of this
proclamation.” Id. at 1,783, § 2(e). The President further
ordered relevant officers to “maintain a constant surveil-
lance of” the imports of the article at issue and “its primary
derivatives” and to “inform the President of any circum-
stances which, . . . might indicate the need for further Pres-
idential action.” Id. at 1,784, § 6(a).
The specific imposition initially adopted in Proclama-
tion 3729 was modified at least 26 times before a new in-
vestigation and report were completed—16 years later in
1975. See Restriction of Oil Imports, 43 Op. Att’y Gen. 20,
22 (1975) (1975 AG Opinion) (“Proclamation 3279 has been
amended at least 26 times since its issuance in 1959.” (cit-
ing 19 U.S.C. § 1862 note)). At least some of those modifi-
cations (made without a new report) “radically amended
the program.” Algonquin, 426 U.S. at 553; see also 1975
Case: 20-2157 Document: 66 Page: 37 Filed: 07/13/2021
TRANSPACIFIC STEEL LLC v. US 37
AG Opinion at 22 (“Some of those amendments have been
minor administrative[] changes; others have involved ma-
jor alteration of the means by which petroleum imports
were restricted; none have been preceded by a formal
§ 232(b) investigation and finding.”).
In 1975, the Attorney General formally opined on the
proper interpretation of the statute and concluded that it
permitted modifications of prior actions:
The normal meaning of the phrase “such action,” in
a context such as this, is not a single act but rather
a continuing course of action, with respect to which
the initial investigation and finding would satisfy
the statutory requirement. This interpretation is
amply supported by the legislative history of the
provision, which clearly contemplates a continuing
process of monitoring, and modifying the import re-
strictions, as their limitations become apparent and
their effects change.
1975 AG Opinion at 21 (emphases added). 7 The Attorney
General emphasized the long practice of presidential action
7 See also Presidential Authority to Adjust Ferroal-
loy Imports Under § 232(b) of the Trade Expansion Act of
1962, 6 Op. O.L.C. 557, 562 (1982) (“Moreover, as this De-
partment has previously indicated, the statutory language
and relevant legislative history contemplate a continuing
course of action, with the possibility of future modifica-
tions.”); id. (“As noted in a Commerce Department memo-
randum, the constant monitoring contemplated by § 232
encompasses not only a review of factual circumstances to
determine whether a particular remedy is effective, but
also a review to determine whether the initial finding of a
threat to the national security remains valid.”); Legal Au-
thorities Available to the President to Respond to a Severe
Energy Supply Interruption or Other Substantial
Case: 20-2157 Document: 66 Page: 38 Filed: 07/13/2021
38 TRANSPACIFIC STEEL LLC v. US
resting on that interpretation and added that Congress
was aware of this practice. See id. at 22 (“The interpreta-
tion here proposed, whereby import restrictions once im-
posed can be modified without an additional investigation
and finding, has been sanctioned by the Congress’ failure
to object to the President’s proceeding on that basis repeat-
edly during the past 15 years.”). The next year, the Su-
preme Court highlighted the breadth of presidential
authority under the statute and added that Congress was
aware of presidential practice. See Algonquin, 426 U.S. at
570 (“Only a few months after President Nixon invoked the
provision to initiate the import license fee system chal-
lenged here, Congress once again re-enacted the Presiden-
tial authorization encompassed in § 232(b) without
material change. . . . The congressional acquiescence in
President Nixon’s action manifested by the re-enactment of
§ 232(b) provides yet further corroboration that § 232(b)
was understood and intended to authorize the imposition
of monetary exactions as a means of adjusting imports.”).
Reduction in Available Petroleum Products, 6 Op. O.L.C.
644, 678 (1982) (“The President’s powers under § 232(b)
have received a broad interpretation.”).
In 1982, the Office of Legal Counsel stated that, for at
least some changes, it would be advisable to seek a new
predicate finding, but the circumstances, involving remote-
ness or indirectness of the connection of the presidential
action to the threat, are not present here. See 6 Op. O.L.C.
at 561 (discussing remoteness of a program’s impact on im-
portation); see also The President’s Power to Impose a Fee
on Imported Oil Pursuant to the Trade Expansion Act of
1962, 6 Op. O.L.C. 74, 77–80 (1982) (discussing whether to
get a new report with a predicate finding to avoid chal-
lenges based on the remoteness or indirectness of the pro-
posed import restrictions). We have no occasion to explore
such situations.
Case: 20-2157 Document: 66 Page: 39 Filed: 07/13/2021
TRANSPACIFIC STEEL LLC v. US 39
Congress amended the statute in April 1980, adding
what is now subsection (f), which addresses petroleum and
sets out a congressional-disapproval process. Crude Oil
Windfall Profit Tax Act, § 402, 94 Stat. at 301. Between
the Attorney General’s 1975 opinion and that amendment,
which was the last one before 1988, the President contin-
ued to modify measures adopted under the statute without
obtaining new formal reports. See PrimeSource Bldg.
Prods., Inc. v. United States, 497 F. Supp. 3d 1333, 1375–
76, 1387–88 (Ct. Int’l Trade 2021) (Baker, J., concurring in
part and dissenting in part) (noting at least seven in-
stances). Between the April 1980 amendment and the in-
auguration of the new President in January 1981, the
President modified a prior proclamation at least four times
without a new investigation and report. See id. (noting at
least four instances). It is not disputed before us that the
modifications during the decades of practice included im-
positions of additional restrictions. See, e.g., id. at 1386–
88.
At the time of the 1988 amendments, then, practice un-
der and executive interpretation of the statute provided a
settled meaning of “action” as including a “plan” or a “con-
tinuing course of action.” See Oral Arg. at 1:04:06–1:04:21
(Q: “The pre-1988 version, you would agree, it gave the
President the authority to do subsequent actions years af-
ter the initial proclamation? Is that right?” A: “That is the
way the statute reads.”). This settled meaning is strongly
presumed to have continued through the 1988 amend-
ments, which kept the key term “action,” even while mak-
ing other changes to the provision, indeed the subsection,
in which the term appeared. See, e.g., Helsinn Healthcare
S.A. v. Teva Pharms. USA, Inc., 139 S. Ct. 628, 633–34
(2019) (“In light of this settled pre-AIA precedent on the
meaning of ‘on sale,’ we presume that when Congress reen-
acted the same language in the AIA, it adopted the earlier
judicial construction of that phrase.”); Dir. of Revenue of
Missouri v. CoBank ACB, 531 U.S. 316, 324 (2001)
Case: 20-2157 Document: 66 Page: 40 Filed: 07/13/2021
40 TRANSPACIFIC STEEL LLC v. US
(requiring a clear indication of a change in meaning to “dis-
rupt the 50-year history of state taxation of banks for coop-
eratives”); cf. NLRB v. Noel Canning, 573 U.S. 513, 525
(2014) (“[T]he longstanding practice of the government can
inform our determination of what the law is.” (cleaned up));
Trump v. Hawaii, 138 S. Ct. 2392, 2415 (2018) (looking at
“historical practice” for statutory interpretation).
ii
Overcoming the strong implication of continuity of the
settled meaning would require a “clear indication from
Congress of a change in policy.” United States v. O’Brien,
560 U.S. 218, 231 (2010) (internal quotation marks omit-
ted). There is no such indication. Congress did not change
“action” in 1988. And what it did change fails to imply the
narrowing of presidential authority the Trade Court found.
In the 1988 amendments, Congress elaborated on the
process by which the executive official responsible for mak-
ing the predicate finding of threat—by then, the Secretary
of Commerce—was to make that decision. § 1862(b). And
in numerous ways, Congress acted to “spur” governmental
action, not “limit the scope of . . . authority” previously pos-
sessed. Brock, 476 U.S. at 265. Even as to the Secretary,
Congress shortened the period for the determination to 270
days (from the earlier one year). § 1862(b). Congress then
directed that, once the Secretary makes a finding of threat,
the President is to respond to that finding within two short
periods—one for the determination whether the President
concurred in the finding and the determination what to do
about the threat if so, the other for implementing the action
the President deemed necessary. § 1862(c)(1). Congress
also made express that the presidential action chosen could
be a bilateral or multilateral negotiation—something the
conferees themselves understood was already implicit in
§ 1862(c)(1), see Conf. Rep. at 712—but it put that option
under new constraints so that the option would not be used
Case: 20-2157 Document: 66 Page: 41 Filed: 07/13/2021
TRANSPACIFIC STEEL LLC v. US 41
for what ended up as inaction or ineffective action.
§ 1862(c)(3).
None of the new language in the statute, on its own or
by comparison to what came before, implies a withdrawal
of previously existing presidential power to take a continu-
ing series of affirmative steps deemed necessary by the
President to counteract the very threat found by the Secre-
tary. To be sure, Congress did change “for such time” lan-
guage to “duration” language, but that change was a
“stylistic” one only, not suggesting a change of meaning.
Jama v. Immigration & Customs Enforcement, 543 U.S.
335, 343 n.3 (2005); see also Scalia & Garner, Reading Law
§ 40, at 256 (“stylistic or nonsubstantive changes” do not
imply change of prior meaning); Universal Steel Prods.,
Inc. v. United States, 495 F. Supp. 3d 1336, 1351–52 (Ct.
Int’l Trade 2021); PrimeSource, 497 F. Supp. 3d at 1378
(Baker, J., concurring in part and dissenting in part). The
same is true of the change from “take such action . . . as
[the President] deems necessary” to “determine the nature
. . . of the action that, in the judgment of the President,
must be taken.”
The new provisions have the evident purpose of produc-
ing more action, not less—and of counteracting a perceived
problem of inaction, including inaction through delay. In
this context, the directive to the President to act by a spec-
ified time is not fairly understood as implicitly meaning “by
then or not at all” as to each discrete imposition that might
be needed, as judged over time.
There is no material dispute that the background to the
1988 amendments was a perceived problem of inaction, in-
cluding by delay. The conferees stated the problem: “Pre-
sent law provides no time limit after the Commerce
Secretary’s report for the President’s decision on the appro-
priate action to take.” Conf. Rep. at 711. Indeed, in 1982,
having received a report from the Secretary finding a na-
tional-security threat from imports of ferroalloy products,
Case: 20-2157 Document: 66 Page: 42 Filed: 07/13/2021
42 TRANSPACIFIC STEEL LLC v. US
the President was advised by the Office of Legal Counsel
that “[n]o time frame constrains the President” in acting on
the report. Presidential Authority to Adjust Ferroalloy Im-
ports Under § 232(b) of the Trade Expansion Act of 1962, 6
Op. O.L.C. 557, 562 (1982); see also id. at 558, 563. Con-
gress plainly acted to oblige the President to act within
specified periods, but as Transpacific has acknowledged,
nothing in the legislative history suggests that, if that duty
was breached, the President could not act later. Oral Arg.
at 1:02:44–1:03:16 (Q: “Where is there any expression of
legislative intent that these time limits that were installed
in 1988 into section 232(b) were designed to yank away
from the President any authority to take action outside of
that time limit? Is the answer that there really isn’t any-
thing in the legislative history on that?” A: “I would have
to agree with Your Honor, yes, there is nothing in the leg-
islative history that says that.”).
The specific focus of Congress’s concern involved presi-
dential inaction concerning imports of machine tools.
Based on a March 1983 request for investigation, the Sec-
retary, in February 1984, sent the President a report find-
ing that “imports in certain machine tools markets did
threaten the U.S. national security.” See General Account-
ing Office, International Trade: Revitalizing the U.S. Ma-
chine Tool Industry 9 (1990) (GAO). The President
responded that the “report should incorporate new mobili-
zation, defense, and economic planning factors then being
developed by an interagency group” and “directed the Sec-
retary of Commerce to update the machine tools investiga-
tion.” Statement on the Machine Tool Industry, 1986 Pub.
Papers 632, 632–33 (May 20, 1986). Nearly two years later,
in March 1986, the Secretary submitted an updated report,
and two months after that, the President announced that
he agreed with the Secretary’s finding and proclaimed his
“action plan,” his “course of action,” id.—to “seek voluntary
export restraint agreements to reduce machine tool im-
ports as part of an overall Domestic Action Plan supporting
Case: 20-2157 Document: 66 Page: 43 Filed: 07/13/2021
TRANSPACIFIC STEEL LLC v. US 43
the industry’s modernization efforts,” GAO at 9. About
seven months later, in December 1986, the President an-
nounced that he reached a five-year voluntary restraint
agreement with Japan and Taiwan. Id.; see also Statement
on the Revitalization of the Machine Tool Industry, 1986
Pub. Papers 1632, 1632–33 (Dec. 16, 1986).
It is undisputed that “Congress did not applaud the”
President’s delay for the machine-tools articles. Fed. Re-
public of Germany, 141 S. Ct. at 711. The Trade Court has
recognized as much. See Transpacific II, 466 F. Supp. 3d
at 1252 (“[T]he 1988 Amendments were passed against the
backdrop of President Reagan’s failing to take timely ac-
tion in response to the Secretary’s report finding that cer-
tain machine tools threatened to impair national security
and Congress’s resulting frustration.”); Universal Steel,
495 F. Supp. 3d at 1352 n.17 (“The history of the 1988
amendments reveals that the amendments were motivated
in no small part by a desire to accelerate Presidential ac-
tion pursuant to Section 232. Congress had been frus-
trated by perceived undue Presidential delay in taking
timely or effective action pursuant to the Secretary’s report
that machine tools threatened to impair the national secu-
rity.”); id. at 1353 (“Furthermore, the 1988 amendments to
Section 232 were motivated by a desire to prevent Presi-
dential inaction and inefficiency under Section 232.”). 8
8 See also, e.g., Comprehensive Trade Legislation:
Hearing on H.R. 3 Before the H. Comm. on Ways & Means,
100th Cong. 199 (1987) (statement of Rep. Jim Wright,
Speaker of the U.S. House of Representatives) (“Many of
our trade problems can be directly traced to the delays, the
abuses of discretion, and ill-considered policy decisions by
those officially appointed to carry out American policy.
One of the worst delays was the machine tools case.”);
Trade Reform Legislation: Hearing Before the Subcomm. on
Trade of the H. Comm. on Ways & Means, 99th Cong. 1282
Case: 20-2157 Document: 66 Page: 44 Filed: 07/13/2021
44 TRANSPACIFIC STEEL LLC v. US
This history tends to undermine, not support, the Trade
Court’s ruling that the new timing provisions were meant
not only to create a duty to act within specified periods but
also to disable the President from acting later if those peri-
ods had ended, even if the actions were needed to effectuate
the Secretary’s finding of threat following a timely-an-
nounced plan of action.
4
Transpacific suggests that the Trade Court’s narrow
reading of § 1862(c)(1) is necessary to avoid making
§ 1862(c)(3) superfluous. See Transpacific Response Br. at
25. We disagree. Subsection (c)(3) makes clear that an in-
itial action can indeed be a plan that leads to additional
impositions well after the time periods of subsection (c)(1)
have passed. For example, if an agreement with one coun-
try is “ineffective in eliminating the threat to the national
security posed by imports of such article,” as assessed long
after the 90-day and 15-day periods have ended, the Presi-
dent “shall take such other actions” as necessary “to adjust
(1986) (statement of Rep. Barbara B. Kennelly, Member,
H. Comm. on Ways & Means) (noting that without a dead-
line, the President could “leave these cases to languish in-
definitely”); Threat of Certain Imports to National Security:
Hearing on S. 1871 Before the S. Comm. on Fin., 99th Cong.
18 (1986) (statement of Sen. Charles E. Grassley, Member,
S. Comm. on Finance) (“[I]t was almost 2 years from that
date before the President asked several major foreign
sources of machine tools to cut exports to the United States.
And of course, when the national security is at stake, such
a delay is incomprehensible to me and to most other peo-
ple.”); id. at 24 (statement of Sen. Robert C. Byrd) (“So,
there is no time limit under present law for the President
to act in which he has to act. We have seen petitions by the
ferroalloy industry and the machine tools industry drag on
for months and months without resolution.”).
Case: 20-2157 Document: 66 Page: 45 Filed: 07/13/2021
TRANSPACIFIC STEEL LLC v. US 45
the imports of such article so that such imports will not
threaten to impair the national security.” § 1862(c)(3)(A).
Having recognized that entry into negotiations can be part
of the President’s remedial choice under subsection (c)(1),
Congress insisted that the negotiation/agreement option
not be a route to inaction, or a substitute for effective ac-
tion, by writing very specific directives that apply in that
situation. Those directives are not superfluous of subsec-
tion (c)(1)’s contemplation of a plan of action with adjust-
ment of implementation choices over time.
Relatedly, we reject Transpacific’s suggestion that the
Trade Court’s interpretation of subsection (c)(1) is sup-
ported by the fact that paragraph (1) uses “action” (singu-
lar) while paragraph (3) uses “actions” (plural).
Transpacific Response Br. at 24. “[U]nless the context in-
dicates otherwise[,] words importing the singular include
and apply to several persons, parties, or things; words im-
porting the plural include the singular.” 1 U.S.C. § 1. In
any event, “action,” in particular, can refer to an extended-
over-time process or a single event at a single moment.
Here, paragraph (1)’s reference to “take action” (or “action
that . . . must be taken”) is addressing the initial announce-
ment of the response as a whole, and naturally encom-
passes a plan that could have many components or types of
components. In contrast, paragraph (3)’s reference to “ac-
tions” is in a context where the distinction is being made
between one kind of component (bilateral or multilateral
efforts, which have left imports too high) and another kind,
drawing the focus to the more granular level. The broad
scope of the singular formulation in paragraph (1) is not
undermined by the use of the plural in paragraph (3). See
Cherokee Nation v. State of Georgia, 30 U.S. 1, 19 (1831)
(Marshall, C.J.) (“It has been also said, that the same
words have not necessarily the same meaning attached to
them when found in different parts of the same instrument:
their meaning is controlled by the context. This is
Case: 20-2157 Document: 66 Page: 46 Filed: 07/13/2021
46 TRANSPACIFIC STEEL LLC v. US
undoubtedly true.”); see also Yates v. United States, 574
U.S. 528, 537 (2015).
Transpacific also suggests that the timing provisions
were meant to prevent the President from acting on stale
information. Transpacific Response Br. at 29; see also
Transpacific II, 466 F. Supp. 3d at 1252. But that observa-
tion does not support the categorical narrow interpretation
adopted by the Trade Court and pressed by Transpacific,
especially given the already-discussed considerations of
text and context, including purpose and history, that
strongly undermine the narrow interpretation. Concerns
about staleness of findings are better treated in individual
applications of the statute, where they can be given their
due after a focused analysis of the proper role of those con-
cerns and the particular finding of threat at issue. In so
stating, we add, we are not prejudging the scope of judicial
reviewability of presidential determinations relevant to
that concern. 9
Here, there is no genuine concern about staleness.
Proclamation 9772, the challenged proclamation, came
only months after the initial announcement, which itself
provided for just such a possible change in the future, and
rested on a determination by the Secretary—about needed
domestic-plant capacity utilization—as to which no sub-
stantial case of staleness has been made. 10
9 We also note the possibility that § 1862(b)(1)(A) al-
lows an “interested party” to request that the Secretary
launch an investigation to determine that imports found to
threaten national security no longer do so. We do not ad-
dress that possibility.
10 The finding of the Secretary at issue was about the
needed capacity utilization. How much reduction of im-
ports is being achieved as measures are implemented is a
separate matter, necessarily a future-oriented one, that is
Case: 20-2157 Document: 66 Page: 47 Filed: 07/13/2021
TRANSPACIFIC STEEL LLC v. US 47
Finally, Transpacific argues that the constitutional-
doubt canon supports its narrow reading of § 1862 because
a contrary reading raises serious nondelegation-doctrine
concerns. Transpacific Response Br. at 16–17, 19, 31; see
also Transpacific II, 466 F. Supp. 3d at 1253; Transpacific
I, 415 F. Supp. 3d at 1275–76. Under governing precedent,
there is no substantial constitutional doubt. See generally
Algonquin, 426 U.S. at 550–70; American Inst. for Int’l
Steel, 806 F. App’x at 983–91. The Supreme Court in Al-
gonquin concluded that § 1862—before Congress added the
timing deadlines—“easily fulfills” the intelligible-principle
standard. 426 U.S. at 559. We have not been shown why
the particular interpretation of § 1862(c)(1) at issue raises
a materially distinct issue under the nondelegation doc-
trine.
* * *
For the foregoing reasons, we reverse the Trade Court’s
determination that Proclamation 9772 violated § 1862.
B
It is well established that the Fifth Amendment’s Due
Process Clause has an equal-protection guarantee that
mirrors the Fourteenth Amendment’s Equal Protection
Clause. See Weinberger v. Wiesenfeld, 420 U.S. 636, 638
n.2 (1975); U.S. Const. amend. XIV, § 1 (“nor deny to any
person within its jurisdiction the equal protection of the
not the subject of § 1862(b). Proclamation 9705 put in place
requirements for monitoring the import reductions so that
the President had current information. See 83 Fed. Reg. at
11,628; see also Proclamation 9772, 83 Fed. Reg. at 40,429,
¶¶ 3–4 (relying on updated information); cf. Proclamation
3729, 24 Fed. Reg. at 1,783, § 2(e) and 1,784, § 6(a) (order-
ing monitoring in 1959); 1975 AG Opinion at 21 (contem-
plating a “continuing process of monitoring”); 6 Op. O.L.C.
at 562 (same).
Case: 20-2157 Document: 66 Page: 48 Filed: 07/13/2021
48 TRANSPACIFIC STEEL LLC v. US
laws”); U.S. Const. amend. V (“nor be deprived of life, lib-
erty, or property, without due process of law”). Here, the
class allegedly being singled out for unfavorable treatment
is the class of “U.S. importers of Turkish steel products.”
Transpacific Response Br. at 33. Transpacific’s claim of
unconstitutional discrimination against that class, we con-
clude, fails.
The most demanding standard that could apply here is
the undemanding rational-basis standard. Transpacific
has made no persuasive case that the class of importers of
a particular product from a particular country falls into
any category for which a heightened standard of review un-
der equal-protection analysis has been recognized. The Su-
preme Court “has long held that a classification neither
involving fundamental rights nor proceeding along suspect
lines cannot run afoul of the Equal Protection Clause if
there is a rational relationship between the disparity of
treatment and some legitimate governmental purpose.”
Armour v. City of Indianapolis, 566 U.S. 673, 680 (2012)
(cleaned up).
Under rational-basis review, Transpacific, as the chal-
lenger, has the burden to establish that there is no “reason-
ably conceivable state of facts that could provide a rational
basis for the classification.” Heller v. Doe, 509 U.S. 312,
320 (1993) (internal quotation marks omitted); see also
FCC v. Beach Commc’ns, Inc., 508 U.S. 307, 313 (1993) (“In
areas of social and economic policy, a statutory classifica-
tion that neither proceeds along suspect lines nor infringes
fundamental constitutional rights must be upheld against
equal protection challenge if there is any reasonably con-
ceivable state of facts that could provide a rational basis for
the classification.”); Williamson v. Lee Optical of Oklahoma
Inc., 348 U.S. 483, 487–88 (1955) (“But the law need not be
in every respect logically consistent with its aims to be con-
stitutional. It is enough that there is an evil at hand for
correction, and that it might be thought that the particular
legislative measure was a rational way to correct it.”).
Case: 20-2157 Document: 66 Page: 49 Filed: 07/13/2021
TRANSPACIFIC STEEL LLC v. US 49
Transpacific has failed to meet its burden. Proclama-
tion 9772’s “policy is plausibly related to the Government’s
stated objective to protect” national security. Hawaii, 138
S. Ct. at 2420. In Proclamation 9772, the President noted
that the Secretary in the January 2018 report had recom-
mended “applying a higher tariff to a list of specific coun-
tries should [the President] determine that all countries
should not be subject to the same tariff”—a list that in-
cludes Turkey—and stated that “Turkey is among the ma-
jor exporters of steel to the United States for domestic
consumption.” 83 Fed. Reg. at 40,429, ¶ 6. And the Presi-
dent highlighted that the Secretary “advised [him] that
this adjustment will be a significant step toward ensuring
the viability of the domestic steel industry.” Id. For at
least those reasons, the President determined that it was
“necessary and appropriate” to increase the tariff from 25%
to 50% and that the increase would “further reduce imports
of steel articles and increase domestic capacity utilization.”
Id. Increasing tariffs on a major exporter is plausibly re-
lated to the achievement of the stated objective of achieving
the level of domestic capacity utilization needed for plant
sustainability found important to protect national security.
Transpacific complains that the President singled out
Turkey, even though other countries export more. Trans-
pacific Response Br. at 38 (noting that “Canada, Mexico,
Brazil, South Korea, Russia, Japan, Germany, and China”
are major exporters of steel). But it is rational for the Pres-
ident to try a steep increase on tariffs for only one major
exporter to see if that strategy helps to achieve the legiti-
mate objective of improving domestic capacity utilization
without extending the increase more widely. That is espe-
cially true because the United States’s relations with any
given country often will differ, in ways relevant to § 1862,
from its relations with other countries. See Totes-Isotoner
Corp. v. United States, 594 F.3d 1346, 1357 (Fed. Cir. 2010)
(“The reasons behind different duty rates vary widely
based on country of origin, the type of product, the
Case: 20-2157 Document: 66 Page: 50 Filed: 07/13/2021
50 TRANSPACIFIC STEEL LLC v. US
circumstances under which the product is imported, and
the state of the domestic manufacturing industry. . . . Fur-
ther, differential rates may be the result of trade conces-
sions made by the United States in return for unrelated
trade advantages.”).
Here, of the eight countries Transpacific mentions, the
President was negotiating with at least four. See, e.g.,
Proclamation 9740, 83 Fed. Reg. at 20,683–84, ¶¶ 4–6 (not-
ing negotiations with South Korea, Brazil, Canada, and
Mexico, among other countries). Of those four, the Presi-
dent had reached agreements with two of them (Brazil and
South Korea) before issuing Proclamation 9772. See, e.g.,
id. at 20,683–84, ¶¶ 4–5 (agreement with South Korea,
which included “a quota that restricts the quantity of steel
articles imported into the United States from South Ko-
rea”); Proclamation 9759, 83 Fed. Reg. at 25,857–58, ¶ 5
(agreement with Brazil, among other countries). And of
the four countries the President might not have been nego-
tiating with, two of them did not appear on the Secretary’s
list of a subset of countries to impose tariffs on. See Janu-
ary 2018 report, 85 Fed. Reg. at 40,205 (not listing Japan
or Germany but listing “Brazil, South Korea, Russia, Tur-
key, India, Vietnam, China, Thailand, South Africa, Egypt,
Malaysia and Costa Rica”). More generally, we see no au-
thority or sound basis for treating equal-protection analy-
sis under the rational-basis standard as requiring judicial
inquiry into differences among particular countries’ rela-
tions with the United States that might legitimately affect
the possibility of negotiations or furnish reasons not to in-
clude particular countries in efforts to reduce overall im-
ports of a particular article. See Hawaii, 138 S. Ct. at 2421(“[W]e cannot substitute our own assessment for the Exec-
utive’s predictive judgments on such [foreign-policy] mat-
ters, all of which are delicate, complex, and involve large
elements of prophecy.” (internal quotation marks omit-
ted)).
Case: 20-2157 Document: 66 Page: 51 Filed: 07/13/2021
TRANSPACIFIC STEEL LLC v. US 51
The Trade Court concluded that the present “case is
materially indistinguishable from Allegheny Pittsburgh
Coal Company v. County Commission of Webster County,
488 U.S. 336 (1989).” Transpacific II, 466 F. Supp. 3d at
1258. We disagree. Allegheny must be read narrowly; the
Supreme Court has made clear that it is the “exception,”
the “rare case.” Armour, 566 U.S. at 686–87; see also Nord-
linger v. Hahn, 505 U.S. 1, 16 (1992) (“Allegheny Pittsburgh
was the rare case where the facts precluded any plausible
inference that the reason for the unequal assessment prac-
tice was to achieve the benefits of an acquisition-value tax
scheme.”). Allegheny involved a circumstance in which the
only apparent basis for the county’s distinction between the
favored and disfavored class was one the county was barred
from asserting because the State’s constitution disclaimed
it. See Allegheny, 488 U.S. at 338; id. at 345 (“But West
Virginia has not drawn such a distinction. Its Constitution
and laws provide that all property of the kind held by peti-
tioners shall be taxed at a rate uniform throughout the
State according to its estimated market value.”); Armour,
566 U.S. at 686–87 (describing Allegheny as resting on the
fact that “in light of the state constitution and related laws
requiring equal valuation, there could be no other rational
basis for the [challenged] practice”).
In the present case, in contrast, there is no applicable
federal-law prohibition on different treatment of the im-
ports of articles from different countries. The Trade Court
cited 19 U.S.C. § 1881 when asserting that “[t]he status
quo under normal trade relations is equal tariff treatment
of similar products irrespective of country of origin.”
Transpacific II, 466 F. Supp. 3d at 1258 (citing § 1881).
But the Trade Court did not assert that § 1881 is actually
a prohibition on the distinction made in implementing
§ 1862 here. Nor does Transpacific so contend—or even
cite § 1881 in defending the Trade Court’s decision. Trans-
pacific Response Br. at 31–55. In fact, § 1881 begins with
the phrase, “Except as otherwise provided in this title,”
Case: 20-2157 Document: 66 Page: 52 Filed: 07/13/2021
52 TRANSPACIFIC STEEL LLC v. US
before stating a principle that “any duty or other import
restriction or duty-free treatment proclaimed in carrying
out any trade agreement under this title or section 350 of
the Tariff Act of 1930 [19 U.S.C. § 1351] of this title shall
apply to products of all foreign countries, whether imported
directly or indirectly.” The exception for “this title,” the
government has explained (with no response from Trans-
pacific), refers to Title II of the Trade Expansion Act of
1962, of which section 232 of that Act, i.e., 19 U.S.C. § 1862,
is a part. U.S. Opening Br. at 45. The overriding legal bar
on the challenged distinction that was present in Allegheny
is not present here. See Oral Arg. at 1:17:15–1:17:38
(Transpacific conceding that the applicable law here differs
from the one in Allegheny).
Transpacific also points to certain sources outside the
agency record—i.e., outside the record on which the Trade
Court’s judgment rested, by joint motion—to support its ar-
gument that the only purpose of Proclamation 9772’s policy
is animus toward U.S. importers of Turkish steel. E.g.,
Transpacific Response Br. at 43. But Transpacific has not
shown how animus towards importers of goods from a par-
ticular country (which is not animus towards people from
particular countries) would, if shown, alter the applicabil-
ity of rational-basis review. And in any event, Transpa-
cific’s evidence does not justify altering our conclusion.
Nearly all of Transpacific’s extrinsic evidence consists of
statements by the President that are too “remote in time
and made in unrelated contexts” to “qualify as ‘contempo-
rary statements’ probative of the decision at issue.” Dep’t
of Homeland Sec. v. Regents of the Univ. of California, 140
S. Ct. 1891, 1916 (2020) (plurality opinion) (quoting Vill. of
Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252,
268 (1977)). And the statement from the President on the
same day as Proclamation 9772 does not reflect animus to-
ward U.S. importers of Turkish steel, let alone negate the
reasonably conceivable state of facts establishing a rational
basis for the policy. See J.A. 499.
Case: 20-2157 Document: 66 Page: 53 Filed: 07/13/2021
TRANSPACIFIC STEEL LLC v. US 53
We must “uphold [Proclamation 9772] so long as it can
reasonably be understood to result from a justification in-
dependent of unconstitutional grounds.” Hawaii, 138 S.
Ct. at 2420. Transpacific has failed to establish that Proc-
lamation 9772 had no “legitimate grounding in national se-
curity concerns, quite apart from any . . . hostility” to U.S.
importers of Turkish steel. Id. at 2421. We conclude that
Proclamation 9772 did not violate the equal-protection
guarantees of the Fifth Amendment’s Due Process Clause.
III
We reverse the Trade Court’s decision and remand the
case for entry of judgment against Transpacific. On re-
mand, the Trade Court may determine whether that judg-
ment should include dismissal of the claim against the
President.
The parties shall bear their own costs.
REVERSED AND REMANDED
Case: 20-2157 Document: 66 Page: 54 Filed: 07/13/2021
United States Court of Appeals
for the Federal Circuit
______________________
TRANSPACIFIC STEEL LLC, BORUSAN
MANNESMANN BORU SANAYI VE TICARET A.S.,
BORUSAN MANNESMANN PIPE U.S. INC., THE
JORDAN INTERNATIONAL COMPANY,
Plaintiffs-Appellees
v.
UNITED STATES, JOSEPH R. BIDEN, JR., IN HIS
OFFICIAL CAPACITY AS PRESIDENT OF THE
UNITED STATES, UNITED STATES CUSTOMS
AND BORDER PROTECTION, TROY MILLER, IN
HIS OFFICIAL CAPACITY AS SENIOR OFFICIAL
PERFORMING THE DUTIES OF THE
COMMISSIONER FOR UNITED STATES CUSTOMS
AND BORDER PROTECTION, DEPARTMENT OF
COMMERCE, GINA RAIMONDO, IN HER
OFFICIAL CAPACITY AS SECRETARY OF
COMMERCE,
Defendants-Appellants
______________________
2020-2157
______________________
Appeal from the United States Court of International
Trade in No. 1:19-cv-00009-CRK-GSK-JAR, Senior Judge
Jane A. Restani, Judge Claire R. Kelly, Judge Gary S.
Katzmann.
______________________
Case: 20-2157 Document: 66 Page: 55 Filed: 07/13/2021
2 TRANSPACIFIC STEEL LLC v. US
REYNA, Circuit Judge dissenting.
John Adams warned that “Power must never be
trusted without a Check.” 1 The expression of caution from
our Founding Father is as much true today as it was at the
founding of our nation. It also has exact application to this
appeal. The essential question posed by this appeal is
whether Congress enacted § 232 to grant the President un-
checked authority over the Tariff.
The U.S. Court of International Trade, in a special
three judge panel, 2 determined that President Trump ex-
ceeded his statutory authority by adjusting tariffs imposed
for national security reasons outside the time limits speci-
fied in § 232. My colleagues reverse the Court of Interna-
tional Trade holding that § 232 does not temporally limit
the President’s authority to act. I would affirm the Court
of International Trade and hold that the discretionary au-
thority Congress granted the President under § 232 is tem-
porally limited and that the President in this has case
exceeded that authority. I dissent.
1 Letter from John Adams to Thomas Jefferson
(Feb. 2, 1816) (on file with the National Archives),
https://founders.archives.gov/documents/Jefferson/03-09-
02-0285.
2 The chief judge of the Court of International Trade
is authorized to designate a three-judge panel to decide a
case that “(1) raises an issue of the constitutionality of an
Act of Congress, a proclamation of the President or an Ex-
ecutive order; or (2) has broad or significant implications in
the administration or interpretation of the customs laws.”
28 U.S.C. § 255(a).
Case: 20-2157 Document: 66 Page: 56 Filed: 07/13/2021
TRANSPACIFIC STEEL LLC v. US 3
INTRODUCTION
My dissent is based on three grounds. First, the ma-
jority overlooks the context of § 232 3 as a trade statute. In
§ 232, Congress has delegated to the Executive Branch cer-
tain narrow authority over trade—an area over which Con-
gress has sole constitutional authority—for the purpose of
safeguarding national security. The majority expands
Congress’s narrow delegation of authority, vitiating Con-
gress’s own express limits, and thereby effectively reas-
signs to the Executive Branch the constitutional power
vested in Congress to manage and regulate the Tariff. See
U.S. CONST. art. I, § 8. The majority therefore seeks to
walk in the shoes of the Founders: its present expansion of
Executive Authority is more than legislating from the
bench, it is amending the Constitution. Second, § 232 is
written in plain words that evoke common meaning and
application. The majority articulates no sound reason to
diverge from that plain language but expounds at great
length, instead, on what the statute does not say or what it
purportedly means to say. It engages in statutory leapfrog,
hopping here and there but ignoring what it has skipped.
Third, § 232’s legislative history shows that Congress in-
tended, for good reason, to end the Executive Branch’s his-
torical practice of perpetually modifying earlier actions
without obtaining a new report from the Secretary of Com-
merce and without reporting to Congress.
3 Trade Agreement Expansion Act of 1962, Pub. L.
No. 87-794, § 232, 76 Stat. 872, 877 (1962) (codified as
amended at 19 U.S.C. § 1862) (“§ 232” or “§ 1862”).
Case: 20-2157 Document: 66 Page: 57 Filed: 07/13/2021
4 TRANSPACIFIC STEEL LLC v. US
DISCUSSION
I
Congress’s Authority Over Trade
The majority decision is based on a rationale that ig-
nores the history of the U.S. trade law framework. It ig-
nores that significant experience that Congress has in
enacting delegation statutes, experience that stretches
back to the founding of this country. In vitiating the ex-
press limits imposed on a narrow delegation of Congres-
sional authority, the majority tears at the legal framework
established by the Founders and Congress and imperils the
very relief sought to be provided under § 232.
The Constitution vests in Congress sole power over the
Tariff when it confers on Congress the power “To lay and
collect Taxes, Duties, Imposts, and Excises” and “To regu-
late Commerce with foreign Nations.” U.S. CONST. art. I,
§ 8. Only Congress, therefore, has power derived from the
Constitution to establish, revise, assess, collect, and en-
force tariffs (which may include duties, taxes and imposts)
that are assessed and collected upon the importation of
goods.
Over time, Congress has delegated to the Executive
Branch authority to act on certain matters involving tar-
iffs. For example, Congress has delegated to the Executive
Branch authority to negotiate tariff reductions via multi-
lateral trade agreements, such as the General Agreement
on Tariffs and Trade (“GATT”) (reciprocal and non-recipro-
cal tariff reduction among the contracting members); re-
gional trade agreements, such as the North American Free
Trade Agreement (“NAFTA”) (eliminating tariffs on almost
100% of the trade among the parties to the agreement); and
non-reciprocal programs, such as the Generalized System
of Preferences (“GSP”) (programs designed to assist the
Case: 20-2157 Document: 66 Page: 58 Filed: 07/13/2021
TRANSPACIFIC STEEL LLC v. US 5
economic development of lesser developed economies). 4
But in each instance, Congress has maintained oversight
by, for example, reviewing negotiating objectives and hold-
ing hearings. Congress has also held the ultimate author-
ity to approve the results of the Executive Branch’s
negotiations. 5 Under our constitutional scheme, any stat-
utory limitations placed by Congress on a delegation of au-
thority to the President bind him to act within those limits,
and any action taken outside such limits exceeds such au-
thority and is therefore illegal. That precisely is what hap-
pened in this case.
Section 232
Section 232 is a trade relief statute, a narrow delega-
tion of authority by Congress to the President to take trade-
related action when necessary to safeguard national secu-
rity. See 19 U.S.C. § 1862. As such, we should be wary of
any undue expansion, whether by the Executive or the Ju-
dicial branch, of the President’s delegated authority.
The § 232 procedures relevant to this appeal are
straightforward and clear. At the outset, the Secretary of
Commerce initiates an investigation on whether certain
importation threatens to impair national security.
19 U.S.C. § 1862(b)(1)(A). Section 232 investigations are
trade focused. The “evidence” examined is therefore trade
data and economic statistics and any other circumstances
4 The GSP was authorized by Congress in the Trade
Act of 1974, see Trade Act of 1974, Pub. L. No. 93-618,
§ 501, 88 Stat. 1978, 2066 (1975), and is subject to renewal
by Congress.
5 See, e.g., Uruguay Round Agreements Act, Pub. L.
No. 103-465, § 101(a), 108 Stat. 4809, 4814 (1994) (approv-
ing the trade agreements and the statement of administra-
tive action to implement the agreements submitted to
Congress).
Case: 20-2157 Document: 66 Page: 59 Filed: 07/13/2021
6 TRANSPACIFIC STEEL LLC v. US
involving the production, commercialization, and importa-
tion of the good subject to investigation. Factors examined
often include U.S. shortages; U.S. and foreign production;
excess and underutilized capacity; U.S. shipments and do-
mestic consumption; plant closures; prices; and worker and
manufacturing dislocations caused by bilateral or multilat-
eral trade arrangements. 6
No more than 270 days after the investigation is initi-
ated, the Secretary of Commerce must submit a report to
the President on the effects of the importation at issue,
whether a threat to national security exists, and the rec-
ommended course of action, if any. Id. § 1862(b)(3). The
President then has 90 days to determine whether he agrees
with the Secretary’s findings and, if so, determine “the na-
ture and duration of the action that, in the judgment of the
President, must be taken to adjust the imports” at issue to
address the threat. Id. § 1862(c)(1)(A). The President’s
“adjustment of imports” may involve increasing or decreas-
ing tariffs on imports of a good or the establishment or
elimination of some other trade-related restriction. To the
extent the President acts to “adjust imports” under § 232,
such adjustments invariably seek to improve the competi-
tiveness of the U.S. industry that produces the same or
similar good as that subject to the investigation (in this
case, steel). 7
6 See, e.g., 31 C.F.R. § 9.4.
7 See, e.g., Proclamation No. 9705, 83 Fed. Reg.
11,625, 11,626 (Mar. 8, 2018) (“This relief will help our do-
mestic steel industry to revive idled facilities, open closed
mills, preserve necessary skills by hiring new steel work-
ers, and maintain or increase production, which will reduce
our Nation’s need to rely on foreign producers for steel and
ensure that domestic producers can continue to supply all
the steel necessary for critical industries and national de-
fense.”).
Case: 20-2157 Document: 66 Page: 60 Filed: 07/13/2021
TRANSPACIFIC STEEL LLC v. US 7
The President is then required to “implement that ac-
tion by no later than the date that is 15 days after the day
on which the President determines to take action.” Id.§ 1862(c)(1)(B) (emphasis added). The President “shall”
also, within 30 days after the President’s determination on
whether to take action, submit to Congress a written state-
ment of the reasons for the chosen action or inaction. 8 Id.
§ 1862(c)(2).
Because the procedures set forth in § 232 are trade fo-
cused, and the relief provided is trade specific, the subject
matter of § 232 flows directly Congress’s constitutional
power over the Tariff. The majority decision, however, is
untethered from the U.S. trade law context. As such, it an-
swers the wrong question. See King v. Burwell, 576
U.S. 473, 492 (2015) (reciting the “fundamental canon of
statutory construction that the words of a statute must be
read in their context and with a view to their place in the
overall statutory scheme” (citation and quotation omit-
ted)). The real question is whether Congress has delegated
to the President authority to act to adjust imports outside
§ 232’s time limits. For the reasons below, and as rightly
concluded by the Court of International Trade, the answer
8 Section 232 also contemplates that the President
may decide to take action by way of negotiations with an-
other country to limit or restrict imports into the U.S. Id.
§ 1862(c)(3). If the President decides to negotiate, subsec-
tion (c)(3) requires a different timeline. If no agreement is
entered into before the date that is 180 days after the date
on which the President made his § 1862(c)(1)(A) determi-
nation to take action, or if the negotiated agreement is not
carried out or effective in eliminating the threat, the Pres-
ident “shall take such other actions as the President deems
necessary to adjust the imports[.]” Id. § 1862(c)(3)(A). This
appeal does not directly involve the negotiations alterna-
tive.
Case: 20-2157 Document: 66 Page: 61 Filed: 07/13/2021
8 TRANSPACIFIC STEEL LLC v. US
is no. Congress has placed time limits upon the President
that are plain, clear, and unmistakable, and has mandated
that, if the President decides to act, he must do so “by no
later than” those time limits.
II
The plain language and legislative history of § 232
demonstrate that the President must act within the speci-
fied time limits or else forfeits the right to do so until the
Secretary of Commerce provides a new report.
The Plain Language
Statutory interpretation begins with the language of
the statute. United States v. Ron Pair Enters., Inc., 489
U.S. 235, 241 (1989). If the language is plain, then the in-
quiry ends, and “the sole function of the courts is to enforce
it according to its terms.” Id. (citation and quotation omit-
ted). Here, § 232 plainly requires that the President
“shall,” within 90 days of receiving the Secretary’s report,
determine whether she agrees with the report and deter-
mine the nature and duration of the action, if any, to take
to avoid impairment to national security. 19 U.S.C.
§ 1862(c)(1)(A). If the President decides to act, she “shall”
do so within 15 days of determining that the action is war-
ranted. Id. § 1862(c)(1)(B).
The majority decides that “shall” means “may.” Maj.
Op. at 23–24. I discern no sound reason for that interpre-
tation permitting the President to modify the action indef-
initely outside the statutory time limits. The word “shall”
in a statute “normally creates an obligation impervious to
judicial discretion.” Lexecon Inc. v. Milberg Weiss Bershad
Hynes & Lerach, 523 U.S. 26, 35 (1998); see also Kingdom-
ware Techs., Inc. v. United States, 136 S. Ct. 1969, 1977
(2016) (“Unlike the word ‘may,’ which implies discretion,
the word ‘shall’ usually connotes a requirement.”); United
States v. Rodgers, 461 U.S. 677, 706 (1983). Applying the
normal legal meaning of “shall,” § 232 requires the
Case: 20-2157 Document: 66 Page: 62 Filed: 07/13/2021
TRANSPACIFIC STEEL LLC v. US 9
President to follow the deadlines set forth in the statute.
The result is not draconian: If the President does not act in
time, he must obtain a new report from the Secretary of
Commerce—which may be the same as or similar to the
previous report—in order to be authorized again to take ac-
tion to avoid impairment of national security. But nothing
in § 232 gives the President discretion to ignore the time
limits or modify the initial action indefinitely. “[W]ithout
‘any indication’ that [§ 232] allows the government to
lessen its obligation, we must ‘give effect to [§ 232’s] plain
command.’” Maine Cmty. Health Options v. United States,
140 S. Ct. 1308, 1321 (2020) (quoting Lexecon, 523 U.S. at
35).
The majority also interprets the word “action” to en-
compass a “plan of action” that may be modified and com-
pleted long after the statutory time limits expire. Maj. Op.
at 25–26. This reading is unavailing. Section 232 repeat-
edly refers to taking an action, and plans cannot be taken.
Section 232’s use of the word “implement” does not change
this conclusion: a tariff can be implemented, but that does
not make that tariff a plan of action or series of actions.
Further, Congress chose the singular form of “action” even
though, there is no question, it was capable of selecting the
plural. See 19 U.S.C. § 1862(c)(3) (referring to “actions”).
The majority’s reading should also be rejected because
it clashes with several other aspects of § 232, rendering
them superfluous, nonsensical, and useless. 9 The Supreme
Court has warned against statutory interpretations that
“render[] superfluous another portion of that same law.”
9 Section 232 is but a small part of the overall U.S.
trade framework, a framework replete with limitations on
presidential authority over trade matters. The majority
fails to explain why its interpretation in this case does, or
does not, extend to the limitations articulated in other as-
pects of U.S. trade law.
Case: 20-2157 Document: 66 Page: 63 Filed: 07/13/2021
10 TRANSPACIFIC STEEL LLC v. US
Maine, 140 S. Ct. at 1323 (citations and quotations omit-
ted). First, § 232 requires the President to determine the
“duration” of “the action” chosen. 19 U.S.C.
§ 1862(c)(1)(A)(ii). This requirement has no teeth if an “ac-
tion” may include an open-ended series of actions that may
be endlessly modified. Further, § 232 requires the Presi-
dent to provide Congress with a statement of the reasons
for the chosen action (or inaction) within 30 days of his de-
termination on whether to take action. Id. § 1862(c)(2).
Such a requirement is useless to Congress if the statute
permits the President to adopt a continuing plan of action
that may be changed later.
Section 232 also permits the President to take “such
other actions as the President deems necessary” if the Pres-
ident initially selected the action of negotiation and the en-
suing negotiations are unfruitful. 19 U.S.C.
§ 1862(c)(3)(A). The majority argues that this provision’s
reference to “other actions” suggests that the President
may undertake a plan of action that is modifiable after the
time limits expire. Maj. Op. at 26–28. But the opposite is
true. The President would have no need for “other actions”
if an “action” may include multiple actions modifiable over
long periods. Moreover, subsection (c)(3) in no way sug-
gests that the President has carte blanche to modify past
actions in a continuing fashion without a new report from
the Secretary of Commerce and without reporting to Con-
gress. It is irrational to read the subsection on negotiations
as expanding the President’s authority under different sub-
sections pertaining to all other actions excluding negotia-
tions.
The majority also reduces the statutory deadlines
themselves to mere optional suggestions. The majority
reasons that § 232 is analogous to a requirement that a
person must “return a car by 11 p.m.”: Even if the 11 p.m.
deadline passes, the obligation to return the car still re-
mains. Maj. Op. at 23. For support, the majority cites
Brock v. Pierce County, 476 U.S. 253, 265 (1986). But that
Case: 20-2157 Document: 66 Page: 64 Filed: 07/13/2021
TRANSPACIFIC STEEL LLC v. US 11
case is inapposite. The statute in Brock authorized the
agency to act “separate and apart” from the provision that
contained time limitations. See Barnhart v. Peabody Coal
Co., 537 U.S. 149, 177 (2003) (Scalia, J., dissenting). No
such separate authorization exists here. Nor does Brock
involve the delegation to the President of a constitutional
power belonging to Congress. Because § 232 is such a del-
egation, extra care should be taken to avoid unduly ex-
panding that delegation—as the majority does now—lest
we reweigh the careful balances drawn by both the Found-
ers and Congress.
Lastly, even assuming that an “action” may encompass
a “plan of action,” it does not follow that § 232’s deadlines
are mere optional suggestions. To the extent “action” can
include a “plan of action,” § 232 requires the President to
implement the plan, not a part of the plan, “by no later
than” a specific deadline. 19 U.S.C. § 1862(c)(1)(B) (requir-
ing the President to “implement that action by no later
than the date that is 15 days after the day on which the
President determines to take action” (emphasis added)).
The majority provides no persuasive reason why a “plan of
action” is inherently free of time limits, requiring infinite
time for completion of the plan.
Because § 232 is plain, the inquiry ends here. Ron
Pair, 489 U.S. at 241.
Legislative History
The legislative history of § 232 also shows that Con-
gress has not authorized the President to carry out open-
ended plans of action, modifiable outside the statutory
deadlines, without a new report from the Secretary of Com-
merce and without reporting to Congress. Before Congress
amended § 232 in 1988, the provision stated that the Pres-
ident “shall take such action, and for such time, as he
deems necessary.” Trade Agreement Expansion Act of
1962, Pub. L. No. 87-794, § 232, 76 Stat. 872, 877 (1962).
Under that regime, the President had broad authority to
Case: 20-2157 Document: 66 Page: 65 Filed: 07/13/2021
12 TRANSPACIFIC STEEL LLC v. US
take action and modify that action indefinitely even with-
out obtaining a new report from the Secretary of Com-
merce. For example, President Eisenhower enacted
Proclamation 3729, which was modified 26 times over 16
years with no new report or investigation initiated. See Re-
striction of Oil Imports, 43 Op. Att’y Gen. 20, 22 (1975)
(“Proclamation 3279 has been amended at least 26 times
since its issuance in 1959.” (citation omitted)). In 1987,
President Reagan adopted yet another modification to
President Eisenhower’s proclamation. Transpacific Steel
LLC v. United Sates, 466 F. Supp. 3d 1246, 1253 (Ct. Int’l
Trade 2020). This state of affairs served as the backdrop
for Congress’s 1988 amendments to § 232.
In 1988, “frustrated” with the status quo, id., Congress
enacted requirements that the President must set a dura-
tion for his action, carry out that action, and report to Con-
gress, all within specific deadlines. Specifically, Congress
amended § 232’s language to state that the President “shall
determine the nature and duration of the action that, in the
judgment of the President, must be taken.” Omnibus
Trade and Competitiveness Act of 1988, Pub. L. No. 100-
418, § 1501(a), 102 Stat. 1107, 1258 (1988) (emphasis
added). Congress also added time limits using the key lan-
guage, “no later than,” which appears repeatedly through-
out § 232. For example, Congress required the President
to implement an action by “no later than the date that is
15 days after” the determination to take the action. 19
U.S.C. § 1862(c)(1)(A). Congress also added that, “[b]y no
later than” 30 days after the determination on whether to
act, the President must inform Congress of the reasons for
the action or inaction. 19 U.S.C. § 1862(c)(2). By its plain
terms, the language “no later than” bars action that occurs
“later than” the statutory deadline. I see no legitimate rea-
son to ignore the word “no” as the majority does.
The 1988 amendments were a “clear indication from
Congress of a change in policy” that overcomes the impli-
cation of continuity, United States v. O’Brien, 560 U.S. 218,
Case: 20-2157 Document: 66 Page: 66 Filed: 07/13/2021
TRANSPACIFIC STEEL LLC v. US 13
231 (2010) (citation and quotation omitted), and the major-
ity offers no support for its contention that the changes
were only stylistic in nature, Maj. Op. at 41. Congress’s re-
moval of the language, “for such time[] as he deems neces-
sary,” indicates that the President may no longer act for
such time as he deems necessary following the 1988
amendments. Indeed, “[f]ew principles of statutory con-
struction are more compelling than the proposition that
Congress does not intend sub silentio to enact statutory
language that it has earlier discarded.” Sale v. Haitian
Centers Council, Inc., 509 U.S. 155, 168 n.16 (1993) (cita-
tions and quotations omitted). “To supply omissions trans-
cends the judicial function.” Id. (citation and quotation
omitted). Congress’s addition of specific deadlines for act-
ing and reporting to Congress compels the conclusion that
the President may no longer adopt continuing, open-ended
plans of action under § 232.
Congress’s approach in 1988 wisely ensured that the
President acted with a current report and thus warded off
continuing modifications based on stale information or
based on a changed purpose, such as a purpose or reasons
not relating to the subject importation’s effect on national
security. I agree with the majority that the purpose of the
1988 amendments was to produce more action, not less.
Maj. Op. at 41. But that does not negate that Congress has
clearly required the President to act within the specified
time limits. See also H.R. REP. NO. 99-581, pt. 1, at 135
(1986) (“The Committee believes that if the national secu-
rity is being affected or threatened, this should be deter-
mined and acted upon as quickly as possible.”). Although
the majority contends that staleness concerns are not pre-
sent here given that President Trump acted only a few
months after the time limits under § 232 expired, Maj. Op.
at 46, what is at stake here is not only this case but future
readings of this provision. The majority’s malleable inter-
pretation of § 232 opens the door to modifications of prior
presidential actions absent the Secretary of Commerce’s
Case: 20-2157 Document: 66 Page: 67 Filed: 07/13/2021
14 TRANSPACIFIC STEEL LLC v. US
provision of current information. Instead we should give
life to § 232’s language as plainly written, which gives the
President a narrow window for taking an action after re-
ceiving a report from the Secretary of Commerce.
CONCLUSION
The Constitution vests Congress with sole power over
the Tariff. U.S. CONST. art. I, § 8. When Congress enacted
§ 232, it delegated to the President limited authority to act
to ameliorate harm caused to the national security by sud-
den increases of imports of certain goods. Congress, how-
ever, in clear and plain words expressly limited its
delegation of authority. Yet, the majority interprets § 232
in a manner that renders Congress’s express limitations
meaningless. I fear that the majority effectively accom-
plishes what not even Congress can legitimately do, reas-
sign to the President its Constitutionally vested power over
the Tariff. I dissent.