Major Questions Doctrine

The U.S. urged the Supreme Court of the United States to reject importer PrimeSource Building Products' petition for a writ of certiorari in a case on the expansion of Section 232 duties onto "derivative" products, telling the high court that PrimeSource's separation of powers claims fall flat. While the importer said the case can give the court a chance to reconsider its approach to nondelegation, the government argued that, under the principle of stare decisis, the petitioner must identify a "special justification" for revisiting established law, which it has failed to do here (PrimeSource Building Products v. U.S., Sup. Ct. # 23-69).

The U.S. asked for another 60 days to file its reply brief in the massive Section 301 litigation at the U.S. Court of Appeals for the Federal Circuit. The government said the present suit is a test case for over 4,100 similar cases and an extension would allow DOJ more time to confer with all the federal agencies involved in the case (HMTX Industries v. U.S., Fed. Cir. # 23-1891).

Importer PrimeSource Building Products on July 26 asked the Supreme Court to take up its case contesting President Donald Trump's expansion of Section 232 steel and aluminum duties onto "derivative" products, urging the High Court to settle ambiguity in statutes delegating "vast legislative power to the Executive in favor of restraining the delegation" (PrimeSource Building Products v. U.S., Sup. Ct. # 23-69).

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The Office of the U.S. Trade Representative exceeded its authority in imposing the lists 3 and 4A Section 301 tariffs on China, covering a total of $320 billion worth of Chinese imports, plaintiff-appellants in the massive case against the duties, led by HTMX Industries and Jasco Products Co., argued in their opening brief at the U.S. Court of Appeals for the Federal Circuit. Appealing the Court of International Trade's decision upholding the tariffs (see 2204010061), the companies said USTR did not have the authority to set the duties since the authority was not directly delegated by Congress, in violation of the "major questions doctrine" (HMTX Industries v. United States, Fed. Cir. # 23-1891).

The Commerce Department failed to explain how its policy of presuming that exporters from non-market economies (NMEs) are controlled by the state and thus deserving of a single NME-wide antidumping rate is rooted in either the statute or Commerce's regulations, the Court of International Trade ruled in a Feb. 9 opinion. Remanding the case over questions on the policy's legal origins for a second time, Judge Richard Eaton also called into question how the NME presumption policy weighs against Commerce's legal obligation to calculate an individual rate for a mandatory respondent using its own data.

The U.S. Court of Appeals for the Federal Circuit issued its mandate in a case in which it dismissed a suit seeking to retroactively apply Section 301 tariff exclusions for lack of subject matter jurisdiction. In the opinion, the Federal Circuit said that because a protest was not filed with CBP on the relevant entries, the court did not have jurisdiction under Section 1581(i), the court's "residual" jursidiction, since jurisdiction would have existed under Section 1581(a) (see 2209060035). The appellants, ARP Materials and Harrison Steel Castings, then attempted to file for a rehearing, arguing that the issue was not directly delegated to CBP, in violation of the Constitution under the major questions doctrine. This bid was rejected (see 2212020073) (ARP Materials v. United States, Fed. Cir. #21-2176).

The U.S. Court of Appeals for the Federal Circuit in a Dec. 2 order, denied a petition from plaintiff-appellants ARP Materials and Harrison Steel Castings Co. for a panel rehearing and rehearing en banc in a case over whether a protest is needed to retroactively apply Section 301 duty exclusions (ARP Materials v. United States, Fed. Cir. #21-2176).

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The "major questions doctrine" established in the Supreme Court decision West Virginia v. EPA does not apply to the question of whether a protest needed to be filed with CBP to retroactively apply Section 301 duty exclusions, the U.S. argued in an Oct. 28 brief opposing a motion for panel rehearing or rehearing en banc at the U.S. Court of Appeals for the Federal Circuit. Even if the major questions doctrine did apply, CBP acted in line with the clear authority granted by Congress in collecting Section 301 duties from plaintiff-appellants ARP Materials and Harrison Steel Castings, the brief said (ARP Materials v. United States, Fed. Cir. #21-2176).