Border Brokerage Co. v. United States

Rich, J.,

concurring.

I agree with the result reached by the majority and with its discussion of the impetus behind congressional enactment of the tie-vote provision of 19 U.S.C. 160(a). I wish, however, to focus more specifically on the reasons why I believe the trial court should have ruled *42upon an issue raised for the first time in a post-trial brief, and on the reasons I vote to affirm on the due process, fifth amendment issue.

THE POST-TRIAL BRIEF ISSUE

Like the majority, I agree that “appellant’s fifth amendment due process claims set forth in paragraphs 16 and 17 [of the complaint] are addressed only to evidentiary considerations and that the matters discussed for the first time in appellant’s brief are wholly outside the pleadings.” In deciding that the trial court should, nevertheless, have considered appellant’s due process issue, the majority cites and discusses a number of U.S. Supreme Court and Federal circuit courts of appeals cases. Each of these cases involved, however, the question of whether or not a circuit court or the Supreme Court would hear an issue that had been raised for the first time on appeal.

I do not believe that we should indicate to the trial court that it should have heard an issue raised for the first time in a post-trial brief before it because this court or a Federal circuit court of appeals might have considered it, had it been raised for the first time at the appellate level.

I believe the trial court should have considered the due process issue only for the limited reasons set forth in that part of the majority opinion just preceding footnote 8, stating that “the Government was given 60 days to file a reply brief, so there would have been no prejudice from consideration of the argument; no refinement or clarification is required; and the matter was ripe for consideration by the Court of International Trade.” As further support for the no refinement rationale, I note that the constitutionality of this statute is to be determined on its face, not as interpreted or as applied, and that no further facts needed to be developed.

THE CONSTITUTIONAL ISSUES

Although appellant asserts that majority rule is “Necessarily * * * among that order of things we call ‘fundamental’,” it is my belief that the economic legislation before us, enacted pursuant to the Federal Government’s plenary power over regulation of foreign commerce, infringes no such right and is to be held invalid as violative of the due process clause of the fifth amendment only if it is wholly arbitrary or capricious. I would affirm in this case, given the congressional motivation discussed by the majority, simply because appellant has failed to demonstrate that the tie-vote provision of section 160(a) bears no reasonable relationship to, or has no rational basis in, the legitimate end sought by Congress. Exxon Corp. v. Governor of Maryland, 437 U.S. 117, 125 (1978); United States v. Carolene Products Co., 304 U.S. 144, 152, 153 (1938).