Case: 19-1727 Document: 84 Page: 1 Filed: 02/28/2020
NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
AMERICAN INSTITUTE FOR INTERNATIONAL
STEEL, INC., SIM-TEX, LP, KURT ORBAN
PARTNERS, LLC,
Plaintiffs-Appellants
v.
UNITED STATES, MARK A. MORGAN, ACTING
COMMISSIONER OF U.S. CUSTOMS AND BORDER
PROTECTION,
Defendants-Appellees
______________________
2019-1727
______________________
Appeal from the United States Court of International
Trade in No. 1:18-cv-00152-CRK-JCG-GSK, Judge Claire
R. Kelly, Judge Gary S. Katzmann, Judge Jennifer Choe-
Groves.
______________________
Decided: February 28, 2020
______________________
ALAN MORRISON, George Washington University Law
School, Washington, DC, argued for plaintiffs-appellants.
Also represented by STEVE CHARNOVITZ; DONALD
CAMERON, JR., JULIE MENDOZA, BRADY MILLS, R. WILL
PLANERT, Morris, Manning & Martin, LLP, Washington,
Case: 19-1727 Document: 84 Page: 2 Filed: 02/28/2020
2 AMERICAN INST. FOR INT'L STEEL v. UNITED STATES
DC; GARY N. HORLICK, Law Offices of Gary N. Horlick,
Washington, DC; TIMOTHY MEYER, Vanderbilt Law School,
Nashville, TN.
TARA K. HOGAN, Commercial Litigation Branch, Civil
Division, United States Department of Justice, Washing-
ton, DC, argued for defendants-appellees. Also repre-
sented by JOSEPH H. HUNT, JEANNE DAVIDSON, STEPHEN
CARL TOSINI, JOSHUA E. KURLAND.
ILYA SHAPIRO, Cato Institute, Washington, DC, for ami-
cus curiae Cato Institute.
JEFFREY S. GRIMSON, Mowry & Grimson, PLLC, Wash-
ington, DC, for amicus curiae Basrai Farms. Also repre-
sented by BRYAN CENKO, JILL CRAMER, KRISTIN HEIM
MOWRY; PEGGY CLARKE, Law Offices of Peggy A. Clarke,
Washington, DC.
CHARLES ALAN ROTHFELD, Mayer Brown LLP, Wash-
ington, DC, for amicus curiae United States Steel Corpora-
tion. Also represented by MATTHEW MCCONKEY.
ALAN H. PRICE, Wiley Rein, LLP, Washington, DC, for
amici curiae American Iron and Steel Institute, Steel Man-
ufacturers Association. Also represented by MAUREEN E.
THORSON, JOSHUA S. TURNER, CHRISTOPHER B. WELD.
______________________
Before TARANTO, SCHALL, and STOLL, Circuit Judges.
TARANTO, Circuit Judge.
On March 8, 2018, the President of the United States
imposed a 25-percent tariff on certain imported steel prod-
ucts, exercising authority granted to the President by sec-
tion 232 of the Trade Expansion Act of 1962, as amended,
19 U.S.C. § 1862, a provision that traces its lineage to 1955.
See Fed. Energy Admin. v. Algonquin SNG, Inc., 426 U.S.
Case: 19-1727 Document: 84 Page: 3 Filed: 02/28/2020
AMERICAN INST. FOR INT'L STEEL v. UNITED STATES 3
548, 552 (1976). The American Institute for International
Steel, Inc.; Sim-Tex, LP; and Kurt Orban Partners, LLC
(collectively, AIIS) sued the United States in the United
States Court of International Trade, arguing that the stat-
ute is unconstitutional on its face because the authority it
confers is so unconstrained as to constitute legislative
power that is Congress’s alone under Article I of the Con-
stitution and so cannot be delegated. The Court of Inter-
national Trade rejected the challenge, concluding that the
issue is controlled by the portion of the Supreme Court’s
Algonquin decision that declares section 232 not to violate
the nondelegation doctrine. American Inst. for Int’l Steel,
Inc. v. United States, 376 F. Supp. 3d 1335, 1339–45
(Ct. Int’l Trade 2019). We agree, and we therefore affirm.
I
A
Section 232 begins with mention of two other statutory
provisions, codified at 19 U.S.C. §§ 1821, 1351, that grant
the President certain discretionary authority regarding
tariffs on goods from foreign nations with which the Presi-
dent might enter into executive agreements. See American
Ins. Ass’n v. Garamendi, 539 U.S. 396, 414–15 (2003) (not-
ing longstanding use and approval of such agreements).
Section 1821 states that the President “may,” for any of the
broad trade-related purposes identified in 19 U.S.C.
§ 1801, enter into trade agreements and, among other
things, raise or lower duties (within limits) to carry out
such agreements. 19 U.S.C. § 1821. Section 1351, which
dates to 1934, see Tariff Act of 1934, ch. 474, 48 Stat. 943,
confers similar authority. 19 U.S.C. § 1351. This court’s
predecessor, the Court of Customs and Patent Appeals, up-
held section 1351 against a delegation-doctrine challenge
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4 AMERICAN INST. FOR INT'L STEEL v. UNITED STATES
in Ernest E. Marks Co. v. United States, 117 F.2d 542
(CCPA 1941). 1
The statute at issue in the present case, section 232,
both restricts and adds to the authority granted in 19
U.S.C. §§ 1821 and 1351. It bars any reduction or elimina-
tion of duties under those provisions “if the President de-
termines that such reduction or elimination would
threaten to impair the national security.” 19 U.S.C.
§ 1862(a). And, in subsections (b) through (d), section 232
provides the President with authority to “adjust the im-
ports” of an article if the Secretary of Commerce, after a
process of consultation and information-seeking, “finds
that [the] article is being imported into the United States
in such quantities or under such circumstances as to
1 Congress also conferred discretionary tariff author-
ity on the President in 19 U.S.C. §§ 2251–2254, providing
for action based on a wide range of considerations, includ-
ing national security, id., § 2253(a)(2)(I). See Silfab Solar,
Inc. v. United States, 892 F.3d 1340 (Fed. Cir. 2018) (hold-
ing that certain presidential determinations under that au-
thority, the so-called “escape clause,” are not judicially
reviewable). The Supreme Court has pointed to other
grants of authority to the President (some of it discretion-
ary), from the earliest Congresses, involving import or
other measures involving foreign commerce or exactions.
See, e.g., United States v. Curtiss-Wright Export Corp., 299
U.S. 304, 322–24 (1936) (historical recitation); Panama Re-
fining Co. v. Ryan, 293 U.S. 388, 422 (1935); J.W. Hamp-
ton, Jr., & Co. v. United States, 276 U.S. 394, 402 (1928);
B. Altman & Co. v. United States, 224 U.S. 583 (1912) (ap-
plying Tariff Act of 1897, § 3, 30 Stat. 151, 203); Marshall
Field & Co. v. Clark, 143 U.S. 649, 683–92 (1892). We do
not rule on what legal significance those grants, and Su-
preme Court rulings about them, would have in the ab-
sence of Algonquin.
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AMERICAN INST. FOR INT'L STEEL v. UNITED STATES 5
threaten to impair the national security.” 19 U.S.C.
§ 1862(c)(1)(A).
The statutory process for an adjustment based on na-
tional security begins with the Secretary of Commerce per-
forming an “appropriate investigation to determine the
effects on the national security of imports of the article.”
Id., § 1862(b)(1)(A). The statute requires consultation with
the Secretary of Defense and other appropriate officers of
the United States and, if appropriate, public hearings or
receipt of comments from interested persons. Id.,
§ 1862(b)(2)(A). When the investigation is completed, the
Secretary of Commerce must provide the President with
findings and recommendations for action or inaction. Id.,
§ 1862(b)(3)(A). If the Secretary finds that importation of
the article threatens to impair the national security, the
President then must determine whether he concurs with
the Secretary’s findings and, if so, what action to adjust im-
ports, in nature and duration, is necessary to avoid the
threat to the national security. Id., § 1862(c)(1)(A).
One possible action is “the negotiation of an agreement
which limits or restricts the importation into, or the expor-
tation to, the United States of the article that threatens to
impair national security.” Id., § 1862(c)(3)(A). If an agree-
ment is not negotiated within 180 days, however, or if an
agreement that is reached is not being carried or is ineffec-
tive in eliminating the threat, the President “shall” take
other actions he deems necessary. Id. The statute thus
provides leverage, in the form of tariff adjustments, for the
President to use in negotiating international executive
agreements, much as do 19 U.S.C. §§ 1821 and 1351,
though with a specific focus on national security.
Subsection (d) sets forth a number of “relevant factors”
to which Secretary and the President shall “give consider-
ation” in making their determinations regarding national
security. Id., § 1862(d). These factors include the “domes-
tic production needed for projected national defense
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6 AMERICAN INST. FOR INT'L STEEL v. UNITED STATES
requirements,” the “capacity of domestic industries to meet
such requirements,” and the “requirements of growth of
such domestic industries.” Id. They include, as well, “the
impact of foreign competition on the economic welfare of
individual domestic industries” and whether the “weaken-
ing of our internal economy may impair the national secu-
rity.” Id. The statute enumerates other considerations as
well, but the enumeration is set forth “without excluding
other relevant factors.” Id. 2
B
1
On April 19, 2017, pursuant to section 1862, the Secre-
tary of Commerce opened an investigation into the impact
of steel imports on the national security. On April 26, 2017,
the Commerce Department published a notice in the Fed-
eral Register soliciting public comments and setting a pub-
lic hearing for May 24, 2017. 82 Fed. Reg. 19,205 (Apr. 26,
2017). On January 11, 2018, the Secretary provided the
President with a report of findings and recommendations.
U.S. Dep’t of Commerce, Bureau of Industry and Security,
The Effect of Imports of Steel on the National Security: An
2 Congress has elsewhere recognized connections be-
tween economic interests and national security. See, e.g.,
50 U.S.C. § 3043(b) (annual “national security strategy re-
port” must address “economic . . . elements of the national
power of the United States”); 8 U.S.C. § 1189(d)(2)
(“‘[N]ational security’ means the national defense, foreign
relations, or economic interests of the United States.”)
(quoted in Holder v. Humanitarian Law Project, 561 U.S.
1, 9 (2010)); see also Crosby v. Nat’l Foreign Trade Council,
530 U.S. 363, 375–76 (2000) (holding State’s measure
preempted by federal statute that conferred on the Presi-
dent “discretion to exercise economic leverage . . . with an
eye toward national security”).
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AMERICAN INST. FOR INT'L STEEL v. UNITED STATES 7
Investigation Conducted Under Section 232 of the Trade
Expansion Act of 1962, as Amended (2018) (Steel Report).
The Secretary examined a variety of steel mill prod-
ucts: carbon and alloy flat products, carbon and alloy long
products, carbon and alloy pipe and tube products, carbon
and alloy semi-finished products, and stainless products.
Id. at 21–22. He found that steel is important to “national
security” because a variety of steel products are needed to
support the country’s defense and to supply industries that
are critical to minimum operations of the economy and gov-
ernment. Id. at 23. 3
The Secretary took account of a conclusion the Secre-
tary of Defense communicated during the investigation and
stated as follows in a post-report letter: “[T]he U.S. military
requirements for steel and aluminum each only represent
about three percent of U.S. production. Therefore, DoD
[the Department of Defense] does not believe that the find-
ings in the reports impact the ability of DoD programs to
acquire the steel or aluminum necessary to meet national
3 The Secretary noted that, while neither section 232
nor its implementing regulations, 15 C.F.R. Part 705, de-
fines “national security,” the term includes, at least, “na-
tional defense.” Steel Report at 13. He also cited the
conclusion of an October 2001 Commerce report prepared
under section 232 that “‘national defense’ includes both de-
fense of the United States directly and the ‘ability to project
military capabilities globally’” and encompasses the gen-
eral security and welfare of certain industries critical to the
minimum operations of the economy and government. Id.
(citing U.S. Dep’t of Commerce, Bureau of Export Admin-
istration, The Effect of Imports of Iron Ore and Semi-Fin-
ished Steel on the National Security (2001) (2001 Report)).
The 2001 Report, for its part, notes that earlier section 232
investigations did not include critical industries within the
scope of “national security.” 2001 Report at 5.
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8 AMERICAN INST. FOR INT'L STEEL v. UNITED STATES
defense requirements.” Letter from James Mattis, Secre-
tary of Defense, to Secretary of Commerce (Feb. 22, 2018);
J.A. 3056. That statement does not expressly refer to fu-
ture DoD steel needs or to the total demand needed for do-
mestic steel plants to sustain, over time, operations that
might be needed for future national-security (including de-
fense) needs. The Secretary of Commerce broadened the
economic analysis. He found that no company could prof-
itably run a steel mill to supply only defense needs and that
there were already no domestic suppliers for some kinds of
steel products needed by DoD. Steel Report at 23, 45–46.
To meet DoD’s varied needs, including possible future
needs, the Secretary determined, domestic steel mills must
attract sufficient commercial business. Id. at 23, 46.
The Secretary found that many domestic steel mills
had been driven out of business due to declining steel
prices, global overcapacity, and unfairly traded steel, id. at
33, and that remaining steel mills were financially dis-
tressed, id. at 37–48. Relying on industry analysts, the
Secretary found that, to remain profitable, steel mills gen-
erally need to operate at a utilization rate—the amount of
production expressed as a percentage of the maximum pro-
duction capacity—of 80 percent or greater. Id. at 47–48.
The Secretary found that the average utilization rate was
74 percent for the most recent six-year period and that in
2016 the utilization rate was only 69.4 percent. Id. at 47.
The Secretary concluded that the then-current impor-
tation of steel threatened the national security by jeopard-
izing domestic steel production. Id. at 56–57. To alleviate
this threat, the Secretary recommended immediately im-
plementing tariffs or quotas in an amount sufficient to en-
able domestic steel plants to operate at utilization levels of
at least 80 percent. Id. at 58. The Secretary determined
that such a utilization rate could be achieved by reducing
steel imports from 36 million to 23 million metric tons. Id.
The Secretary presented several alternatives to achieve
that reduction: an import quota limiting imports of steel to
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AMERICAN INST. FOR INT'L STEEL v. UNITED STATES 9
63 percent of 2017 levels; a tariff of 24 percent on all steel
imports, no matter the country of origin (on top of already-
applicable antidumping or countervailing duties); or a tar-
iff of 53 percent for steel imports from twelve countries
(again, on top of already-applicable antidumping or coun-
tervailing duties). Id. at 59–60.
2
On March 8, 2018, the President issued Proclamation
9705, in which he concurred with the Secretary’s findings
and imposed a 25-percent tariff, effective March 23, 2018,
on all steel articles from all countries—except for Canada
and Mexico, which involved recited special circumstances
and were already engaged in negotiations with the United
States. 83 Fed. Reg. 11,625, 11,626–27 (Mar. 15, 2018).
The President determined that the tariff was “necessary
and appropriate” and would help “ensure that domestic
producers can continue to supply all the steel necessary for
critical industries and national defense.” Id. at 11,626.
The President also welcomed any country with which the
United States has a security relationship to “discuss . . . al-
ternative ways to address the threatened impairment of
the national security caused by imports from that country.”
Id. The President stated that, upon reaching an alterna-
tive arrangement with a country, he may “remove or mod-
ify the restriction on steel articles imports from that
country and, if necessary, make any corresponding adjust-
ments to the tariff as it applies to other countries.” Id.
On March 22, 2018, the President issued Proclamation
9711, temporarily exempting Australia, Argentina, South
Korea, Brazil, and the European Union from the tariff. 83
Fed. Reg. 13,361 (Mar. 28, 2018). The President deter-
mined that the United States has an important security in-
terest with each of the exempted sovereigns and that—in
light of ongoing negotiations with each—the appropriate
way to address the threat to the national security was to
continue discussions and increase strategic partnerships,
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10 AMERICAN INST. FOR INT'L STEEL v. UNITED STATES
“including those with respect to reducing global excess ca-
pacity.” Id. at 13,362. The exemption was to last only until
May 1, 2018, thereby encouraging the conclusion of satis-
factory agreements. Id. at 13,362–63.
On April 30, 2018, the President issued Proclamation
9740, reporting that the United States had successfully
concluded negotiations with South Korea on an alternative
means to address the threat to the national security. 83
Fed. Reg. 20,683 (May 7, 2018). The countries agreed to a
“range of measures,” including a quota restricting the
quantity of articles imported from South Korea. Id. The
President therefore excluded South Korea from the tariff.
Id. at 20,684. In the same Proclamation, the President ex-
empted Argentina, Australia, and Brazil, which had
reached an agreement in principle with the United States,
and postponed until June 1, 2018, the effective date of ap-
plicability to Canada, Mexico, and the EU, which were en-
gaged in negotiations sufficiently promising to warrant
that postponement. Id. at 20,684–85.
On May 31, 2018, the President issued Proclamation
9759, announcing that the United States had agreed with
Argentina, Australia, and Brazil on alternative means to
reduce excess steel production and capacity. 83 Fed. Reg.
25,857 (June 5, 2018). In light of those agreements, the
President determined that steel imports from those coun-
tries no longer threaten the national security and, there-
fore, imports from those countries would be excluded from
the tariff. Id. at 25,858.
On August 10, 2018, the President issued Proclamation
9772, stating that imports of steel had not declined as
much as anticipated and that capacity utilization had not
increased to the target level. 158 Fed. Reg. 40,429 (Aug.
15, 2018). Noting that the Secretary’s January report rec-
ommended applying higher tariffs to a set of countries that
includes Turkey (one of the twelve identified by the Secre-
tary, Steel Report at 60), the President determined that it
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AMERICAN INST. FOR INT'L STEEL v. UNITED STATES 11
was necessary and appropriate to increase the tariff rate to
50 percent for steel articles imported from Turkey. 158
Fed. Reg. at 40,429–30.
C
On June 27, 2018, AIIS filed a complaint with the
Court of International Trade, asserting—without contra-
diction from the United States—that the Institute’s mem-
bers (including the two other plaintiffs) are adversely
affected by the tariffs on imported steel imposed pursuant
to section 232. AIIS did not allege a failure to adhere to
required procedures or action beyond the statutory con-
straints. AIIS stated a single claim: that section 232, on its
face, is an unconstitutional delegation of legislative power
to the President. AIIS sought an injunction against en-
forcement of the tariff increase imposed under the section.
The Court of International Trade had jurisdiction under 28
U.S.C. § 1581(i)(2), (4), and a three-judge panel was desig-
nated to hear AIIS’s constitutional challenge under 28
U.S.C. § 255.
AIIS filed a motion for summary judgment, and the
government moved for judgment on the pleadings. The
Court of International Trade held that the Supreme
Court’s decision in Algonquin requires rejection of the con-
stitutional challenge, and it therefore granted the govern-
ment’s motion. American Institute for Int’l Steel, 376 F.
Supp. 3d at 1339–45. Judge Katzmann, while agreeing
that Algonquin is controlling, expressed doubt that sec-
tion 232 should be deemed constitutional in the absence of
Algonquin. American Institute for Int’l Steel, 376 F. Supp.
3d at 1345–52. The court entered final judgment on March
25, 2019.
AIIS filed a timely notice of appeal that same day. We
have jurisdiction under 28 U.S.C. § 1295(a)(5).
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12 AMERICAN INST. FOR INT'L STEEL v. UNITED STATES
II
On appeal, AIIS urges that Algonquin does not control
this case and that section 232 is facially unconstitutional
because it improperly delegates legislative authority to the
President. We review questions of law de novo. Princess
Cruises, Inc. v. United States, 201 F.3d 1352, 1357 (Fed.
Cir. 2000). Agreeing with the Court of International Trade
that Algonquin controls, we affirm without deciding what
ruling on the constitutional challenge would be proper in
the absence of Algonquin.
A
In Algonquin, the Court considered a challenge to the
President’s authority to adjust imports using license fees.
Pursuant to section 232, the President had issued a procla-
mation increasing license fees imposed on certain petro-
leum products. Algonquin, 426 U.S. at 553–55. Several
states, along with other complainants, sued the Secretary
of the Treasury, alleging that section 232 did not give the
President authority to adjust imports using license fees
and that, if so read, the provision would be an unconstitu-
tional delegation of legislative authority. 4 Id. at 556. The
Court upheld the license fees. Id. at 558–71.
Decisively for current purposes, the Court began by re-
jecting the “suggestion that [it] must construe § 232(b) nar-
rowly in order to avoid a serious question of
unconstitutional delegation of legislative power.” Id. at
558–59 (internal quotation marks omitted). The Court
4 At the time of Algonquin, section 232 gave the Sec-
retary of the Treasury the responsibilities now given to the
Secretary of Commerce—to whom Congress transferred
the responsibilities effective January 2, 1980, as part of an
Executive Branch reorganization. See Reorganization Plan
No. 3 of 1979—Reorganization of Functions Relating to In-
ternational Trade, § 5(a)(1)(B), 93 Stat. 1381, 1383.
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AMERICAN INST. FOR INT'L STEEL v. UNITED STATES 13
ruled: “Even if § 232(b) is read to authorize the imposition
of a license fee system, the standards that it provides the
President in its implementation are clearly sufficient to
meet any delegation doctrine attack.” Id. at 559.
Specifically, the Court quoted its ruling in J.W. Hamp-
ton, Jr., & Co. v. United States that there is no forbidden
delegation if “Congress shall lay down by legislative act an
intelligible principle to which the [President] is directed to
conform,” 276 U.S. 394, 409 (1928), and concluded that
“[s]ection 232(b) easily fulfills that test.” 426 U.S. at 559.
The Court explained that section 232 “establishes clear
preconditions to Presidential action”—the Secretary’s find-
ing that an article is being imported in such quantities and
under such circumstances as to threaten the national secu-
rity—and that “the leeway that the statute gives the Pres-
ident in deciding what action to take in the event the
preconditions are fulfilled is far from unbounded.” Id. The
Court added that the President “can act only to the extent
‘he deems necessary to adjust the imports . . . so that such
imports will not threaten to impair the national security’”
and that the statute “articulates a series of specific factors
to be considered by the President.” Id. (quoting 19 U.S.C.
§ 1862(b) (1975)); see also Trade Act of 1974, Pub. L. No.
93-618, § 127(d), 88 Stat. 1978, 1993 (1975). For those rea-
sons, the Court held that there was “no looming problem of
improper delegation.” Id. at 560.
B
The Court’s ruling in Algonquin answers the question
of the constitutionality of section 232 presented here. The
Court’s rejection of the nondelegation-doctrine challenge to
section 232 was a necessary step in the Court’s rationale
for ultimately construing the statute as it did, and the con-
stitutional ruling is therefore binding precedent. See Sem-
inole Tribe of Florida v. Florida, 517 U.S. 44, 67 (1996)
(“When an opinion issues for the Court, it is not only the
result but also those portions of the opinion necessary to
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14 AMERICAN INST. FOR INT'L STEEL v. UNITED STATES
that result by which we are bound.”). Moreover, the ra-
tionale of the Court’s rejection of the nondelegation-doc-
trine challenge rests on the determination that the
standards governing the President’s and Secretary’s deter-
minations under section 232 are constitutionally adequate.
The same standards are at issue here.
The court did not limit its reasoning in the delegation-
doctrine portion of its opinion to the license-fee authority
in dispute in Algonquin. When the Court said at the end
of its opinion that its “holding . . . is a limited one,” Algon-
quin, 426 U.S. at 571, it was not curtailing its nondelega-
tion holding. Rather, it was referring to its statutory-
construction ruling. The Court explained what it meant by
“limited”: the conclusion that “the imposition of a license
fee is authorized by § 232(b) in no way compels the further
conclusion that any action the President might take, as
long as it has even a remote impact on imports, is also so
authorized.” Id. That caution about what actions might be
outside section 232’s authorization does not narrow the
Court’s conclusion that section 232 is not an unconstitu-
tional delegation of legislative authority.
In any event, we see no basis on which Algonquin can
be properly distinguished for purposes of the question pre-
sented here. For one thing, the tariffs at issue here are
“monetary exactions,” like the “license fees” that were at
issue, and contrasted with “quotas,” in Algonquin. Id. at
552. Even if Algonquin’s nondelegation ruling were viewed
as tied to the form of presidential action authorized, AIIS
has presented no persuasive explanation for distinguishing
the tariffs at issue here from the license fees at issue there.
For another, AIIS’s claim is a claim of unconstitutionality
of the statutory provision on its face, that is, in all its ap-
plications. See Bucklew v. Precythe, 139 S. Ct. 1112, 1127
(2019) (“A facial challenge is really just a claim that the law
or policy at issue is unconstitutional in all its applica-
tions.”). Algonquin necessarily rejected that claim when it
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AMERICAN INST. FOR INT'L STEEL v. UNITED STATES 15
held that there was no constitutional problem with the
grant of authority in section 232.
C
AIIS argues that later decisions of the Supreme Court
have undermined at least one crucial premise of Algonquin,
making it no longer binding. But the Supreme Court has
ruled: “If a precedent of [the Supreme Court] has direct ap-
plication in a case, yet appears to rest on reasons rejected
in some other line of decisions, the Court of Appeals should
follow the case which directly controls, leaving to [the Su-
preme Court] the prerogative of overruling its own deci-
sions.” Rodriguez de Quijas v. Shearson/American
Express, Inc., 490 U.S. 477, 484 (1989). If there are cases
justifying an exception to that principle, this case is not one
of them.
We will not project an overruling of the delegation-doc-
trine standard stated in Hampton on which Algonquin
rested. Five members of the Court have recently expressed
interest in at least exploring a reconsideration of that
standard. See Gundy v. United States, 139 S. Ct. 2116,
2131–42 (2019) (Gorsuch, J., dissenting, joined by Roberts,
C.J., and Thomas, J.); id. at 2130–31 (Alito, J., concurring
in the judgment); Paul v. United States, 140 S. Ct. 342
(2019) (mem.) (Kavanaugh, J., statement respecting the
denial of certiorari) (stating that the issues raised in the
Gundy dissent “may warrant further consideration in fu-
ture cases”). But such expressions give us neither a license
to disregard the currently governing precedent nor a sub-
stitute standard to apply.
We do not have full briefing on issues that might de-
mand exploration under a standard different from the one
stated in Hampton. Such issues might include the signifi-
cance of text, history, and precedent bearing on circum-
stances in which Congress, exercising its constitutional
power, strengthens authority within the President’s “inde-
pendent” constitutional power. See Loving v. United
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16 AMERICAN INST. FOR INT'L STEEL v. UNITED STATES
States, 517 U.S. 748, 772 (1996) (explaining that the dele-
gation doctrine is less restrictive in such circumstances, cit-
ing United States v. Mazurie, 419 U.S. 544, 556–57 (1975),
and United States v. Curtiss-Wright Export Corp., 299 U.S.
304, 319–22 (1936)); see also Gundy, 139 S. Ct. at 2136
(Gorsuch, J., dissenting); cf. Zivotofsky ex rel. Zivotofsky v.
Kerry, 135 S. Ct. 2076, 2083–84 (2015) (stating that the
Court uses “Justice Jackson’s familiar tripartite frame-
work” from Youngstown Sheet & Tube Co. v. Sawyer, 343
U.S. 579, 635–38 (1952) (concurring opinion), under which
the President’s authority is greatest when supported by
Congress. The Supreme Court has recognized that the
President has some independent constitutional authority
over national security and dealings with foreign nations,
including in the form of executive agreements. See, e.g.,
Ziglar v. Abbasi, 137 S. Ct. 1843, 1861 (2017) (national se-
curity); American Ins. Ass’n, 539 U.S. at 414–15 (executive
agreements); see also Trump v. Hawaii, 138 S. Ct. 2392,
2419–20 (2018) (“The upshot of our cases in this context is
clear: ‘Any rule of constitutional law that would inhibit the
flexibility’ of the President ‘to respond to changing world
conditions should be adopted only with the greatest cau-
tion,’ and our inquiry into matters of entry and national
security is highly constrained.” (quoting Mathews v. Diaz,
426 U.S. 67, 81 (1976)). We will not guess at precisely what
analysis might be needed in the absence of Algonquin or
conduct such an analysis without the parties’ briefing de-
veloped under any new standard.
AIIS argues that one pertinent change of law has al-
ready occurred. It argues that decisions of the Supreme
Court after Algonquin—particularly Franklin v. Massa-
chusetts, 505 U.S. 788 (1992), and Dalton v. Specter, 511
U.S. 462 (1994)—foreclose judicial review that would have
been available at the time Algonquin was decided. We see
no basis in this argument for declaring Algonquin to be no
longer binding. Nothing in Algonquin’s analysis rests on a
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AMERICAN INST. FOR INT'L STEEL v. UNITED STATES 17
premise about judicial review that later Supreme Court de-
cisions have changed.
In Franklin, the Court ruled that the President’s ac-
tions are not reviewable under the Administrative Proce-
dure Act (APA) because the President is not an “agency.”
Franklin, 505 U.S. at 800–01. In Dalton, the Court ruled
that recommendations and reports submitted to the Presi-
dent are not reviewable under the APA—because they are
not final agency actions—when the President has discre-
tion whether to act pursuant to such recommendations and
reports. Dalton, 511 U.S. at 469–70; see Franklin, 505 U.S.
at 796–98. But the Court’s analysis in Algonquin does not
turn on APA review of the President’s action, or of the Sec-
retary’s findings and recommendations, under section 232.
To the extent that AIIS suggests that the Court in Al-
gonquin presupposed the availability of judicial review of
the factual or discretionary presidential determinations
under section 232, there is no basis for such a suggestion.
Nor has AIIS established that, at the time of Algonquin,
such judicial review was available. See United States v.
George S. Bush & Co., 310 U.S. 371, 380 (1940) (“For the
judiciary to probe the reasoning which underlies this Proc-
lamation would amount to a clear invasion of the legisla-
tive and executive domains. Under the Constitution it is
exclusively for Congress, or those to whom it delegates au-
thority, to determine what tariffs shall be imposed.”); Dal-
ton, 511 U.S. at 474 (indicating that discretionary
presidential decisions were already unreviewable under
longstanding case law); American Inst. for Int’l Steel, 376
F. Supp. 3d at 1341–42 (citing authorities).
At the same time, in Algonquin the Court did rule on
the statutory issue of whether section 232 authorized li-
cense fees (not just quotas) as well as on the constitutional
challenge. But AIIS has not identified any material change
in the availability of judicial review in those respects. It is
enough to say that some non-APA review remains
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18 AMERICAN INST. FOR INT'L STEEL v. UNITED STATES
available for constitutional issues, questions about the
scope of statutory authority, and compliance with proce-
dural requirements. See Dalton, 511 U.S. at 474; Franklin,
505 U.S. at 801; Dames & Moore v. Regan, 453 U.S. 654,
669–74 (1981); Silfab Solar, 892 F.3d at 1346 (citing Maple
Leaf Fish Co. v. United States, 762 F.2d 86, 89 (Fed. Cir.
1985) (“For a court to interpose, there has to be a clear mis-
construction of the governing statute, a significant proce-
dural violation, or action outside delegated authority.”)).
The government has agreed, in its brief, Appellee Br. at 24,
and at oral argument, Oral Arg. at 16:25–17:06, http://oral
arguments.cafc.uscourts.gov/default.aspx?fl=2019-1727.
mp3. In short, there has been no material change to the
judicial review of presidential action pursuant to section
232 that undermines the controlling force of Algonquin.
III
For the foregoing reasons, we affirm the judgment of
the Court of International Trade.
AFFIRMED