Transpacific Steel LLC v. United States

4 F.4th 1306

• Court: Court of Appeals for the Federal Circuit
• Decided: July 13, 2021
• Docket: 20-2157
• Status: Published

Opinion

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

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

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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

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

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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

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

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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

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

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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

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

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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

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

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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

“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

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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

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

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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

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

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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

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

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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

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

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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

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

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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

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

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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

§ 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

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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

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

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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

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

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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

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

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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

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

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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

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

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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

(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

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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

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

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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

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

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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

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

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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

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

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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

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

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

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 ______________________

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

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

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

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

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

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

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

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

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

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

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

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

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

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.