American Inst. for Int'l Steel v. United States

• Court: Court of Appeals for the Federal Circuit
• Decided: February 28, 2020
• Docket: 19-1727
• Status: Unpublished

Opinion

Case: 19-1727 Document: 84 Page: 1 Filed: 02/28/2020

NOTE: This disposition is nonprecedential.

United States Court of Appeals for the Federal Circuit ______________________

AMERICAN INSTITUTE FOR INTERNATIONAL STEEL, INC., SIM-TEX, LP, KURT ORBAN PARTNERS, LLC, Plaintiffs-Appellants

v.

UNITED STATES, MARK A. MORGAN, ACTING COMMISSIONER OF U.S. CUSTOMS AND BORDER PROTECTION, Defendants-Appellees ______________________

2019-1727 ______________________

Appeal from the United States Court of International Trade in No. 1:18-cv-00152-CRK-JCG-GSK, Judge Claire R. Kelly, Judge Gary S. Katzmann, Judge Jennifer Choe- Groves. ______________________

Decided: February 28, 2020 ______________________

ALAN MORRISON, George Washington University Law School, Washington, DC, argued for plaintiffs-appellants. Also represented by STEVE CHARNOVITZ; DONALD CAMERON, JR., JULIE MENDOZA, BRADY MILLS, R. WILL PLANERT, Morris, Manning & Martin, LLP, Washington, Case: 19-1727 Document: 84 Page: 2 Filed: 02/28/2020

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DC; GARY N. HORLICK, Law Offices of Gary N. Horlick, Washington, DC; TIMOTHY MEYER, Vanderbilt Law School, Nashville, TN.

TARA K. HOGAN, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washing- ton, DC, argued for defendants-appellees. Also repre- sented by JOSEPH H. HUNT, JEANNE DAVIDSON, STEPHEN CARL TOSINI, JOSHUA E. KURLAND.

ILYA SHAPIRO, Cato Institute, Washington, DC, for ami- cus curiae Cato Institute.

JEFFREY S. GRIMSON, Mowry & Grimson, PLLC, Wash- ington, DC, for amicus curiae Basrai Farms. Also repre- sented by BRYAN CENKO, JILL CRAMER, KRISTIN HEIM MOWRY; PEGGY CLARKE, Law Offices of Peggy A. Clarke, Washington, DC.

CHARLES ALAN ROTHFELD, Mayer Brown LLP, Wash- ington, DC, for amicus curiae United States Steel Corpora- tion. Also represented by MATTHEW MCCONKEY.

ALAN H. PRICE, Wiley Rein, LLP, Washington, DC, for amici curiae American Iron and Steel Institute, Steel Man- ufacturers Association. Also represented by MAUREEN E. THORSON, JOSHUA S. TURNER, CHRISTOPHER B. WELD. ______________________

Before TARANTO, SCHALL, and STOLL, Circuit Judges. TARANTO, Circuit Judge. On March 8, 2018, the President of the United States imposed a 25-percent tariff on certain imported steel prod- ucts, exercising authority granted to the President by sec- tion 232 of the Trade Expansion Act of 1962, as amended, 19 U.S.C. § 1862, a provision that traces its lineage to 1955. See Fed. Energy Admin. v. Algonquin SNG, Inc., 426 U.S. Case: 19-1727 Document: 84 Page: 3 Filed: 02/28/2020

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548, 552 (1976). The American Institute for International Steel, Inc.; Sim-Tex, LP; and Kurt Orban Partners, LLC (collectively, AIIS) sued the United States in the United States Court of International Trade, arguing that the stat- ute is unconstitutional on its face because the authority it confers is so unconstrained as to constitute legislative power that is Congress’s alone under Article I of the Con- stitution and so cannot be delegated. The Court of Inter- national Trade rejected the challenge, concluding that the issue is controlled by the portion of the Supreme Court’s Algonquin decision that declares section 232 not to violate the nondelegation doctrine. American Inst. for Int’l Steel, Inc. v. United States, 376 F. Supp. 3d 1335, 1339–45 (Ct. Int’l Trade 2019). We agree, and we therefore affirm. I A Section 232 begins with mention of two other statutory provisions, codified at 19 U.S.C. §§ 1821, 1351, that grant the President certain discretionary authority regarding tariffs on goods from foreign nations with which the Presi- dent might enter into executive agreements. See American Ins. Ass’n v. Garamendi, 539 U.S. 396, 414–15 (2003) (not- ing longstanding use and approval of such agreements). Section 1821 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. 19 U.S.C. § 1821. Section 1351, which dates to 1934, see Tariff Act of 1934, ch. 474, 48 Stat. 943, confers similar authority. 19 U.S.C. § 1351. This court’s predecessor, the Court of Customs and Patent Appeals, up- held section 1351 against a delegation-doctrine challenge Case: 19-1727 Document: 84 Page: 4 Filed: 02/28/2020

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in Ernest E. Marks Co. v. United States, 117 F.2d 542 (CCPA 1941). 1 The statute at issue in the present case, section 232, both restricts and adds to the authority granted in 19 U.S.C. §§ 1821 and 1351. It bars any reduction or elimina- tion of duties under those provisions “if the President de- termines that such reduction or elimination would threaten to impair the national security.” 19 U.S.C. § 1862(a). And, in subsections (b) through (d), section 232 provides the President with authority to “adjust the im- ports” of an article if the Secretary of Commerce, after a process of consultation and information-seeking, “finds that [the] article is being imported into the United States in such quantities or under such circumstances as to

1 Congress also conferred discretionary tariff author- ity on the President in 19 U.S.C. §§ 2251–2254, providing for action based on a wide range of considerations, includ- ing national security, id., § 2253(a)(2)(I). See Silfab Solar, Inc. v. United States, 892 F.3d 1340 (Fed. Cir. 2018) (hold- ing that certain presidential determinations under that au- thority, the so-called “escape clause,” are not judicially reviewable). The Supreme Court has pointed to other grants of authority to the President (some of it discretion- ary), from the earliest Congresses, involving import or other measures involving foreign commerce or exactions. See, e.g., United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 322–24 (1936) (historical recitation); Panama Re- fining Co. v. Ryan, 293 U.S. 388, 422 (1935); J.W. Hamp- ton, Jr., & Co. v. United States, 276 U.S. 394, 402 (1928); B. Altman & Co. v. United States, 224 U.S. 583 (1912) (ap- plying Tariff Act of 1897, § 3, 30 Stat. 151, 203); Marshall Field & Co. v. Clark, 143 U.S. 649, 683–92 (1892). We do not rule on what legal significance those grants, and Su- preme Court rulings about them, would have in the ab- sence of Algonquin. Case: 19-1727 Document: 84 Page: 5 Filed: 02/28/2020

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threaten to impair the national security.” 19 U.S.C. § 1862(c)(1)(A). The statutory process for an adjustment based on na- tional security begins with the Secretary of Commerce per- forming an “appropriate investigation to determine the effects on the national security of imports of the article.” Id., § 1862(b)(1)(A). The statute requires consultation with the Secretary of Defense and other appropriate officers of the United States and, if appropriate, public hearings or receipt of comments from interested persons. Id., § 1862(b)(2)(A). When the investigation is completed, the Secretary of Commerce must provide the President with findings and recommendations for action or inaction. Id., § 1862(b)(3)(A). If the Secretary finds that importation of the article threatens to impair the national security, the President then must determine whether he concurs with the Secretary’s findings and, if so, what action to adjust im- ports, in nature and duration, is necessary to avoid the threat to the national security. Id., § 1862(c)(1)(A). One possible action is “the negotiation of an agreement which limits or restricts the importation into, or the expor- tation to, the United States of the article that threatens to impair national security.” Id., § 1862(c)(3)(A). If an agree- ment is not negotiated within 180 days, however, or if an agreement that is reached is not being carried or is ineffec- tive in eliminating the threat, the President “shall” take other actions he deems necessary. Id. The statute thus provides leverage, in the form of tariff adjustments, for the President to use in negotiating international executive agreements, much as do 19 U.S.C. §§ 1821 and 1351, though with a specific focus on national security. Subsection (d) sets forth a number of “relevant factors” to which Secretary and the President shall “give consider- ation” in making their determinations regarding national security. Id., § 1862(d). These factors include the “domes- tic production needed for projected national defense Case: 19-1727 Document: 84 Page: 6 Filed: 02/28/2020

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requirements,” the “capacity of domestic industries to meet such requirements,” and the “requirements of growth of such domestic industries.” Id. They include, as well, “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, but the enumeration is set forth “without excluding other relevant factors.” Id. 2 B 1 On April 19, 2017, pursuant to section 1862, the Secre- tary of Commerce opened an investigation into the impact of steel imports on the national security. On April 26, 2017, the Commerce Department published a notice in the Fed- eral Register soliciting public comments and setting a pub- lic hearing for May 24, 2017. 82 Fed. Reg. 19,205 (Apr. 26, 2017). On January 11, 2018, the Secretary provided the President with a report of findings and recommendations. U.S. Dep’t of Commerce, Bureau of Industry and Security, The Effect of Imports of Steel on the National Security: An

2 Congress has elsewhere recognized connections be- tween economic interests and national security. See, e.g., 50 U.S.C. § 3043(b) (annual “national security strategy re- port” must address “economic . . . elements of the national power of the United States”); 8 U.S.C. § 1189(d)(2) (“‘[N]ational security’ means the national defense, foreign relations, or economic interests of the United States.”) (quoted in Holder v. Humanitarian Law Project, 561 U.S. 1, 9 (2010)); see also Crosby v. Nat’l Foreign Trade Council, 530 U.S. 363, 375–76 (2000) (holding State’s measure preempted by federal statute that conferred on the Presi- dent “discretion to exercise economic leverage . . . with an eye toward national security”). Case: 19-1727 Document: 84 Page: 7 Filed: 02/28/2020

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Investigation Conducted Under Section 232 of the Trade Expansion Act of 1962, as Amended (2018) (Steel Report). The Secretary examined a variety of steel mill prod- ucts: carbon and alloy flat products, carbon and alloy long products, carbon and alloy pipe and tube products, carbon and alloy semi-finished products, and stainless products. Id. at 21–22. He found that steel is important to “national security” because a variety of steel products are needed to support the country’s defense and to supply industries that are critical to minimum operations of the economy and gov- ernment. Id. at 23. 3 The Secretary took account of a conclusion the Secre- tary of Defense communicated during the investigation and stated as follows in a post-report letter: “[T]he U.S. military requirements for steel and aluminum each only represent about three percent of U.S. production. Therefore, DoD [the Department of Defense] does not believe that the find- ings in the reports impact the ability of DoD programs to acquire the steel or aluminum necessary to meet national

3 The Secretary noted that, while neither section 232 nor its implementing regulations, 15 C.F.R. Part 705, de- fines “national security,” the term includes, at least, “na- tional defense.” Steel Report at 13. He also cited the conclusion of an October 2001 Commerce report prepared under section 232 that “‘national defense’ includes both de- fense of the United States directly and the ‘ability to project military capabilities globally’” and encompasses the gen- eral security and welfare of certain industries critical to the minimum operations of the economy and government. Id. (citing U.S. Dep’t of Commerce, Bureau of Export Admin- istration, The Effect of Imports of Iron Ore and Semi-Fin- ished Steel on the National Security (2001) (2001 Report)). The 2001 Report, for its part, notes that earlier section 232 investigations did not include critical industries within the scope of “national security.” 2001 Report at 5. Case: 19-1727 Document: 84 Page: 8 Filed: 02/28/2020

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defense requirements.” Letter from James Mattis, Secre- tary of Defense, to Secretary of Commerce (Feb. 22, 2018); J.A. 3056. That statement does not expressly refer to fu- ture DoD steel needs or to the total demand needed for do- mestic steel plants to sustain, over time, operations that might be needed for future national-security (including de- fense) needs. The Secretary of Commerce broadened the economic analysis. He found that no company could prof- itably run a steel mill to supply only defense needs and that there were already no domestic suppliers for some kinds of steel products needed by DoD. Steel Report at 23, 45–46. To meet DoD’s varied needs, including possible future needs, the Secretary determined, domestic steel mills must attract sufficient commercial business. Id. at 23, 46. The Secretary found that many domestic steel mills had been driven out of business due to declining steel prices, global overcapacity, and unfairly traded steel, id. at 33, and that remaining steel mills were financially dis- tressed, id. at 37–48. Relying on industry analysts, the Secretary found that, to remain profitable, steel mills gen- erally need to operate at a utilization rate—the amount of production expressed as a percentage of the maximum pro- duction capacity—of 80 percent or greater. Id. at 47–48. The Secretary found that the average utilization rate was 74 percent for the most recent six-year period and that in 2016 the utilization rate was only 69.4 percent. Id. at 47. The Secretary concluded that the then-current impor- tation of steel threatened the national security by jeopard- izing domestic steel production. Id. at 56–57. To alleviate this threat, the Secretary recommended immediately im- plementing tariffs or quotas in an amount sufficient to en- able domestic steel plants to operate at utilization levels of at least 80 percent. Id. at 58. The Secretary determined that such a utilization rate could be achieved by reducing steel imports from 36 million to 23 million metric tons. Id. The Secretary presented several alternatives to achieve that reduction: an import quota limiting imports of steel to Case: 19-1727 Document: 84 Page: 9 Filed: 02/28/2020

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63 percent of 2017 levels; a tariff of 24 percent on all steel imports, no matter the country of origin (on top of already- applicable antidumping or countervailing duties); or a tar- iff of 53 percent for steel imports from twelve countries (again, on top of already-applicable antidumping or coun- tervailing duties). Id. at 59–60. 2 On March 8, 2018, the President issued Proclamation 9705, in which he concurred with the Secretary’s findings and imposed a 25-percent tariff, effective March 23, 2018, on all steel articles from all countries—except for Canada and Mexico, which involved recited special circumstances and were already engaged in negotiations with the United States. 83 Fed. Reg. 11,625, 11,626–27 (Mar. 15, 2018). The President determined that the tariff was “necessary and appropriate” and would help “ensure that domestic producers can continue to supply all the steel necessary for critical industries and national defense.” Id. at 11,626. The President also welcomed any country with which the United States has a security relationship to “discuss . . . al- ternative ways to address the threatened impairment of the national security caused by imports from that country.” Id. The President stated that, upon reaching an alterna- tive arrangement with a country, he may “remove or mod- ify the restriction on steel articles imports from that country and, if necessary, make any corresponding adjust- ments to the tariff as it applies to other countries.” Id. On March 22, 2018, the President issued Proclamation 9711, temporarily exempting Australia, Argentina, South Korea, Brazil, and the European Union from the tariff. 83 Fed. Reg. 13,361 (Mar. 28, 2018). The President deter- mined that the United States has an important security in- terest with each of the exempted sovereigns and that—in light of ongoing negotiations with each—the appropriate way to address the threat to the national security was to continue discussions and increase strategic partnerships, Case: 19-1727 Document: 84 Page: 10 Filed: 02/28/2020

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“including those with respect to reducing global excess ca- pacity.” Id. at 13,362. The exemption was to last only until May 1, 2018, thereby encouraging the conclusion of satis- factory agreements. Id. at 13,362–63. On April 30, 2018, the President issued Proclamation 9740, reporting that the United States had successfully concluded negotiations with South Korea on an alternative means to address the threat to the national security. 83 Fed. Reg. 20,683 (May 7, 2018). The countries agreed to a “range of measures,” including a quota restricting the quantity of articles imported from South Korea. Id. The President therefore excluded South Korea from the tariff. Id. at 20,684. In the same Proclamation, the President ex- empted Argentina, Australia, and Brazil, which had reached an agreement in principle with the United States, and postponed until June 1, 2018, the effective date of ap- plicability to Canada, Mexico, and the EU, which were en- gaged in negotiations sufficiently promising to warrant that postponement. Id. at 20,684–85. On May 31, 2018, the President issued Proclamation 9759, announcing that the United States had agreed with Argentina, Australia, and Brazil on alternative means to reduce excess steel production and capacity. 83 Fed. Reg. 25,857 (June 5, 2018). In light of those agreements, the President determined that steel imports from those coun- tries no longer threaten the national security and, there- fore, imports from those countries would be excluded from the tariff. Id. at 25,858. On August 10, 2018, the President issued Proclamation 9772, stating that imports of steel had not declined as much as anticipated and that capacity utilization had not increased to the target level. 158 Fed. Reg. 40,429 (Aug. 15, 2018). Noting that the Secretary’s January report rec- ommended applying higher tariffs to a set of countries that includes Turkey (one of the twelve identified by the Secre- tary, Steel Report at 60), the President determined that it Case: 19-1727 Document: 84 Page: 11 Filed: 02/28/2020

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was necessary and appropriate to increase the tariff rate to 50 percent for steel articles imported from Turkey. 158 Fed. Reg. at 40,429–30. C On June 27, 2018, AIIS filed a complaint with the Court of International Trade, asserting—without contra- diction from the United States—that the Institute’s mem- bers (including the two other plaintiffs) are adversely affected by the tariffs on imported steel imposed pursuant to section 232. AIIS did not allege a failure to adhere to required procedures or action beyond the statutory con- straints. AIIS stated a single claim: that section 232, on its face, is an unconstitutional delegation of legislative power to the President. AIIS sought an injunction against en- forcement of the tariff increase imposed under the section. The Court of International Trade had jurisdiction under 28 U.S.C. § 1581(i)(2), (4), and a three-judge panel was desig- nated to hear AIIS’s constitutional challenge under 28 U.S.C. § 255. AIIS filed a motion for summary judgment, and the government moved for judgment on the pleadings. The Court of International Trade held that the Supreme Court’s decision in Algonquin requires rejection of the con- stitutional challenge, and it therefore granted the govern- ment’s motion. American Institute for Int’l Steel, 376 F. Supp. 3d at 1339–45. Judge Katzmann, while agreeing that Algonquin is controlling, expressed doubt that sec- tion 232 should be deemed constitutional in the absence of Algonquin. American Institute for Int’l Steel, 376 F. Supp. 3d at 1345–52. The court entered final judgment on March 25, 2019. AIIS filed a timely notice of appeal that same day. We have jurisdiction under 28 U.S.C. § 1295(a)(5). Case: 19-1727 Document: 84 Page: 12 Filed: 02/28/2020

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II On appeal, AIIS urges that Algonquin does not control this case and that section 232 is facially unconstitutional because it improperly delegates legislative authority to the President. We review questions of law de novo. Princess Cruises, Inc. v. United States, 201 F.3d 1352, 1357 (Fed. Cir. 2000). Agreeing with the Court of International Trade that Algonquin controls, we affirm without deciding what ruling on the constitutional challenge would be proper in the absence of Algonquin. A In Algonquin, the Court considered a challenge to the President’s authority to adjust imports using license fees. Pursuant to section 232, the President had issued a procla- mation increasing license fees imposed on certain petro- leum products. Algonquin, 426 U.S. at 553–55. Several states, along with other complainants, sued the Secretary of the Treasury, alleging that section 232 did not give the President authority to adjust imports using license fees and that, if so read, the provision would be an unconstitu- tional delegation of legislative authority. 4 Id. at 556. The Court upheld the license fees. Id. at 558–71. Decisively for current purposes, the Court began by re- jecting the “suggestion that [it] must construe § 232(b) nar- rowly in order to avoid a serious question of unconstitutional delegation of legislative power.” Id. at 558–59 (internal quotation marks omitted). The Court

4 At the time of Algonquin, section 232 gave the Sec- retary of the Treasury the responsibilities now given to the Secretary of Commerce—to whom Congress transferred the responsibilities effective January 2, 1980, as part of an Executive Branch reorganization. See Reorganization Plan No. 3 of 1979—Reorganization of Functions Relating to In- ternational Trade, § 5(a)(1)(B), 93 Stat. 1381, 1383. Case: 19-1727 Document: 84 Page: 13 Filed: 02/28/2020

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ruled: “Even if § 232(b) is read to authorize the imposition of a license fee system, the standards that it provides the President in its implementation are clearly sufficient to meet any delegation doctrine attack.” Id. at 559. Specifically, the Court quoted its ruling in J.W. Hamp- ton, Jr., & Co. v. United States that there is no forbidden delegation if “Congress shall lay down by legislative act an intelligible principle to which the [President] is directed to conform,” 276 U.S. 394, 409 (1928), and concluded that “[s]ection 232(b) easily fulfills that test.” 426 U.S. at 559. The Court explained that section 232 “establishes clear preconditions to Presidential action”—the Secretary’s find- ing that an article is being imported in such quantities and under such circumstances as to threaten the national secu- rity—and that “the leeway that the statute gives the Pres- ident in deciding what action to take in the event the preconditions are fulfilled is far from unbounded.” Id. The Court added that the President “can act only to the extent ‘he deems necessary to adjust the imports . . . so that such imports will not threaten to impair the national security’” and that the statute “articulates a series of specific factors to be considered by the President.” Id. (quoting 19 U.S.C. § 1862(b) (1975)); see also Trade Act of 1974, Pub. L. No. 93-618, § 127(d), 88 Stat. 1978, 1993 (1975). For those rea- sons, the Court held that there was “no looming problem of improper delegation.” Id. at 560. B The Court’s ruling in Algonquin answers the question of the constitutionality of section 232 presented here. The Court’s rejection of the nondelegation-doctrine challenge to section 232 was a necessary step in the Court’s rationale for ultimately construing the statute as it did, and the con- stitutional ruling is therefore binding precedent. See Sem- inole Tribe of Florida v. Florida, 517 U.S. 44, 67 (1996) (“When an opinion issues for the Court, it is not only the result but also those portions of the opinion necessary to Case: 19-1727 Document: 84 Page: 14 Filed: 02/28/2020

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that result by which we are bound.”). Moreover, the ra- tionale of the Court’s rejection of the nondelegation-doc- trine challenge rests on the determination that the standards governing the President’s and Secretary’s deter- minations under section 232 are constitutionally adequate. The same standards are at issue here. The court did not limit its reasoning in the delegation- doctrine portion of its opinion to the license-fee authority in dispute in Algonquin. When the Court said at the end of its opinion that its “holding . . . is a limited one,” Algon- quin, 426 U.S. at 571, it was not curtailing its nondelega- tion holding. Rather, it was referring to its statutory- construction ruling. The Court explained what it meant by “limited”: the conclusion that “the imposition of a license fee is authorized by § 232(b) in no way compels the further conclusion that any action the President might take, as long as it has even a remote impact on imports, is also so authorized.” Id. That caution about what actions might be outside section 232’s authorization does not narrow the Court’s conclusion that section 232 is not an unconstitu- tional delegation of legislative authority. In any event, we see no basis on which Algonquin can be properly distinguished for purposes of the question pre- sented here. For one thing, the tariffs at issue here are “monetary exactions,” like the “license fees” that were at issue, and contrasted with “quotas,” in Algonquin. Id. at 552. Even if Algonquin’s nondelegation ruling were viewed as tied to the form of presidential action authorized, AIIS has presented no persuasive explanation for distinguishing the tariffs at issue here from the license fees at issue there. For another, AIIS’s claim is a claim of unconstitutionality of the statutory provision on its face, that is, in all its ap- plications. See Bucklew v. Precythe, 139 S. Ct. 1112, 1127 (2019) (“A facial challenge is really just a claim that the law or policy at issue is unconstitutional in all its applica- tions.”). Algonquin necessarily rejected that claim when it Case: 19-1727 Document: 84 Page: 15 Filed: 02/28/2020

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held that there was no constitutional problem with the grant of authority in section 232. C AIIS argues that later decisions of the Supreme Court have undermined at least one crucial premise of Algonquin, making it no longer binding. But the Supreme Court has ruled: “If a precedent of [the Supreme Court] has direct ap- plication in a case, yet appears to rest on reasons rejected in some other line of decisions, the Court of Appeals should follow the case which directly controls, leaving to [the Su- preme Court] the prerogative of overruling its own deci- sions.” Rodriguez de Quijas v. Shearson/American Express, Inc., 490 U.S. 477, 484 (1989). If there are cases justifying an exception to that principle, this case is not one of them. We will not project an overruling of the delegation-doc- trine standard stated in Hampton on which Algonquin rested. Five members of the Court have recently expressed interest in at least exploring a reconsideration of that standard. See Gundy v. United States, 139 S. Ct. 2116, 2131–42 (2019) (Gorsuch, J., dissenting, joined by Roberts, C.J., and Thomas, J.); id. at 2130–31 (Alito, J., concurring in the judgment); Paul v. United States, 140 S. Ct. 342 (2019) (mem.) (Kavanaugh, J., statement respecting the denial of certiorari) (stating that the issues raised in the Gundy dissent “may warrant further consideration in fu- ture cases”). But such expressions give us neither a license to disregard the currently governing precedent nor a sub- stitute standard to apply. We do not have full briefing on issues that might de- mand exploration under a standard different from the one stated in Hampton. Such issues might include the signifi- cance of text, history, and precedent bearing on circum- stances in which Congress, exercising its constitutional power, strengthens authority within the President’s “inde- pendent” constitutional power. See Loving v. United Case: 19-1727 Document: 84 Page: 16 Filed: 02/28/2020

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States, 517 U.S. 748, 772 (1996) (explaining that the dele- gation doctrine is less restrictive in such circumstances, cit- ing United States v. Mazurie, 419 U.S. 544, 556–57 (1975), and United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 319–22 (1936)); see also Gundy, 139 S. Ct. at 2136 (Gorsuch, J., dissenting); cf. Zivotofsky ex rel. Zivotofsky v. Kerry, 135 S. Ct. 2076, 2083–84 (2015) (stating that the Court uses “Justice Jackson’s familiar tripartite frame- work” from Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635–38 (1952) (concurring opinion), under which the President’s authority is greatest when supported by Congress. The Supreme Court has recognized that the President has some independent constitutional authority over national security and dealings with foreign nations, including in the form of executive agreements. See, e.g., Ziglar v. Abbasi, 137 S. Ct. 1843, 1861 (2017) (national se- curity); American Ins. Ass’n, 539 U.S. at 414–15 (executive agreements); see also Trump v. Hawaii, 138 S. Ct. 2392, 2419–20 (2018) (“The upshot of our cases in this context is clear: ‘Any rule of constitutional law that would inhibit the flexibility’ of the President ‘to respond to changing world conditions should be adopted only with the greatest cau- tion,’ and our inquiry into matters of entry and national security is highly constrained.” (quoting Mathews v. Diaz, 426 U.S. 67, 81 (1976)). We will not guess at precisely what analysis might be needed in the absence of Algonquin or conduct such an analysis without the parties’ briefing de- veloped under any new standard. AIIS argues that one pertinent change of law has al- ready occurred. It argues that decisions of the Supreme Court after Algonquin—particularly Franklin v. Massa- chusetts, 505 U.S. 788 (1992), and Dalton v. Specter, 511 U.S. 462 (1994)—foreclose judicial review that would have been available at the time Algonquin was decided. We see no basis in this argument for declaring Algonquin to be no longer binding. Nothing in Algonquin’s analysis rests on a Case: 19-1727 Document: 84 Page: 17 Filed: 02/28/2020

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premise about judicial review that later Supreme Court de- cisions have changed. In Franklin, the Court ruled that the President’s ac- tions are not reviewable under the Administrative Proce- dure Act (APA) because the President is not an “agency.” Franklin, 505 U.S. at 800–01. In Dalton, the Court ruled that recommendations and reports submitted to the Presi- dent are not reviewable under the APA—because they are not final agency actions—when the President has discre- tion whether to act pursuant to such recommendations and reports. Dalton, 511 U.S. at 469–70; see Franklin, 505 U.S. at 796–98. But the Court’s analysis in Algonquin does not turn on APA review of the President’s action, or of the Sec- retary’s findings and recommendations, under section 232. To the extent that AIIS suggests that the Court in Al- gonquin presupposed the availability of judicial review of the factual or discretionary presidential determinations under section 232, there is no basis for such a suggestion. Nor has AIIS established that, at the time of Algonquin, such judicial review was available. See United States v. George S. Bush & Co., 310 U.S. 371, 380 (1940) (“For the judiciary to probe the reasoning which underlies this Proc- lamation would amount to a clear invasion of the legisla- tive and executive domains. Under the Constitution it is exclusively for Congress, or those to whom it delegates au- thority, to determine what tariffs shall be imposed.”); Dal- ton, 511 U.S. at 474 (indicating that discretionary presidential decisions were already unreviewable under longstanding case law); American Inst. for Int’l Steel, 376 F. Supp. 3d at 1341–42 (citing authorities). At the same time, in Algonquin the Court did rule on the statutory issue of whether section 232 authorized li- cense fees (not just quotas) as well as on the constitutional challenge. But AIIS has not identified any material change in the availability of judicial review in those respects. It is enough to say that some non-APA review remains Case: 19-1727 Document: 84 Page: 18 Filed: 02/28/2020

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available for constitutional issues, questions about the scope of statutory authority, and compliance with proce- dural requirements. See Dalton, 511 U.S. at 474; Franklin, 505 U.S. at 801; Dames & Moore v. Regan, 453 U.S. 654, 669–74 (1981); Silfab Solar, 892 F.3d at 1346 (citing Maple Leaf Fish Co. v. United States, 762 F.2d 86, 89 (Fed. Cir. 1985) (“For a court to interpose, there has to be a clear mis- construction of the governing statute, a significant proce- dural violation, or action outside delegated authority.”)). The government has agreed, in its brief, Appellee Br. at 24, and at oral argument, Oral Arg. at 16:25–17:06, http://oral arguments.cafc.uscourts.gov/default.aspx?fl=2019-1727. mp3. In short, there has been no material change to the judicial review of presidential action pursuant to section 232 that undermines the controlling force of Algonquin. III For the foregoing reasons, we affirm the judgment of the Court of International Trade. AFFIRMED