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American Institute for International Steel & Members sue TRUMP Admin

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Posted on June 29 2018

 

TRADE WARS...not awesome.

 

Remember that time twitter said I was being overly dramatic about the Trump Administration war on Trade? Where some twitter trolls accused me of spreading disinformation, turns out they were wrong. 

 

What trade war? Originally discussed on April 4, 2018 entry, in which numerous WTO Complaints, Tariffs embedded in entry, found here

 

And further discussion about Trump’s trade war and Tariffs present an actual National Secretary risk and the socioeconomic impact. In a cruel twist of irony, the very same people & special interest organizations that helped fund & voted for Trump, are the very same entities that are disproportionately impacted, entry  found here

 

 

I mean, who among us would believe a sitting American president, would identify our Northern & Southern Neighbors and Gobal Allies would ever been reclassified as a National Secretary risk to legitimize an inexplicable 25-35% tariff. Oh wait remember who’s in the White House, Vladimir Putin’s Asset, Donald J Trump & co.

See president Trump’s Proclamation # 9705, in which Trump via Wilbur Ross rationalize that pursuant to 19 U.S.C §1862, specifically section 232 to justify the steel tariffs. See Trump’s Proclamation via the Federal Register, here.

 

 

 In the Proclamation, read Paragraphs 1-5, but it’s paragraph 2 that caught my attention. It which reads in part:

The Secretary found and advised me of his opinion that steel articles are being imported into the United States in such quantities and under such circumstances as to threaten to impair the national security of the United States. The Secretary found that the present quantities of steel articles imports and the circumstances of global excess capacity for producing steel are ‘‘weakening our internal economy,’’ resulting in the persistent threat of further closures of domestic steel production facilities and the ‘‘shrinking [of our] ability to meet national security production requirements in a na- tional emergency.’’ Because of these risks and the risk that the United States may be unable to ‘‘meet [steel] demands for national defense and critical industries in a national emergency,’’ and taking into account the close relation of the economic welfare of the Nation to our national security, see 19 U.S.C. 1862(d), the Secretary concluded that the present quantities and circumstances of steel articles imports threaten to impair the national security as defined in section 232 of the Trade Expansion Act of 1962, as amended.. (clearly emphasis added)

 

Pursuant to Section 232 has a rigorous and lengthy proces. Naturally I’m curious to know what part, if any of the following process occurred. To that end, yes of course I’ve already submitted a FOIA request for emails with the Department of Commerce, US Treasury and the White House..until my FOIA response is fulfilled here’s a Congressional Rsearch Report to Cogress, regarding sec 232

 

American Institute for International Steel (AIIS)

SIM-TEX, LP

KURT ORBAN PARTNERS, LLC

filed Federal Lawsuit in

International Trade Court.

 

Per AIIS’ press release:

 

... filed suit today in the United States Court of International Trade in New York City challenging the constitutionality of the statute under which President Trump imposed a 25% tariff on imported steel. The lawsuit seeks a declaration that the law relied on by President Trump to impose that tariff is unconstitutional, as well as a court order preventing further enforcement of the 25% tariff increase. 

 

AIIS President, Richard Chriss Statement, reads in part:

 

“In addition to the totally open-ended choice of how to counter any threat that imports may present, Section 232 allows the President to consider virtually any effect on the U.S. economy as part of ‘national security’,” said AIIS President Richard Chriss. 

 

 

The Parties:

 

AIIS - It is the only steel-related trade association that supports free trade. This organization and it’s members, are disproportionately impacted by the 25% increase, as further detailed in president Trump’s March Proclamation. AIIS’s members have a lengthy and complex supply chain, to include: import, ship, transport, store approximately 80% of all imported basic steel products in the United States. AIIS et al by way of the international trade counsel, ‘AIIS testified in opposition to the use of section 232 at the public”, see April 2018 comment from AIIS President:

Yet, while steel is critical to national security, defense accounts for only about 3 percent of the nation’s total steel consumption. In a crisis, then, domestic manufacturers could, if necessary, boost their production to meet any new requirements. Even in the event of a crisis, though, there is little reason to think that the supply of foreign steel would be cut off, since most imports come from friendly nations.

 

SIM-TEX -  “Sim-Tex is an importer and the leading wholesaler in the United States of Oil Country Tubular Goods (OCTG) casing and tubing, which are carbon and alloy steel pipe and tube products used in the production and distribution of oil and gas. Sim-Tex imports directly, as the importer of record, and indirectly,
through traders, approximately 40,000 – 45,000 tons per month from Korea, Taiwan, Brazil, Germany, Italy and other sources. Sim-Tex also purchases and sells OCTG tubing..”

 

ORBAN - isn’t just a run of the mill tubing company. By industry standards they are the Gobal leader in their industry, specialized piping. The industry is HIGHLY specialized and exceedingly lucrative. ORBAN, specialty steel traders purchasing globally from leading carbon, alloy, stainless and high nickel alloy manufacturers. Their Company is over 100 years old. They are the actual gold-standard in new products and a global powerhouse. 

 Orban is a specialty steel trader that purchases globally from leading carbon, alloy, and stainless and high nickel alloy manufacturers and sells to manufacturers in the United States. It is a member of Plaintiff AIIS, and it purchases between 200,000 and 250,000 tons of imported steel per year, all of which is subject to the 25% tariff increase. As the importer of record on most of these purchases, it is directly responsible for paying all tariffs, including the 25% tariff increase. Among the products that Orban imports and sells are the following...

Oil country tubular goods and line pipe for the oil, gas and energy industries;
Oil country couplings and fittings as well as standard pipe;
Hot-rolled coil for the production of downhole tubing and casing as well as general durable goods manufacturing;

Cold rolled and coated flat steels for residential construction as well as the manufacture of steel drums and barrels that serve the U.S. chemical sector;


Wire rod that is drawn into a multitude of finished wire products for agricultural, durable and non-durable goods applications;

 

Venue

United States Court of International Trade, located in New York City. 

In 1956, Congress declared this court to be a court established under Article III of the Constitution. Hence forth:

The United States Court of International Trade, established under Article III of the Constitution, has nationwide jurisdiction over civil actions arising out of the customs and international trade laws of the United States.

In 1980 Senator Dennis DeConcini introduced the Customs Courts Act (CCA) which address the various statutory and procedural deficiencies. The CCA was and is the “most significant legislation affecting international trade litigation”. At the time Sen DeConcini stated: 

 “This legislation will offer the international trade community, as well as domestic interests, consumer groups, labor organizations, and other concerned citizens, a vastly improved forum for judicial review of administrative actions of government agencies dealing with importations. The provisions make it clear to those who suffer injury in this area that they may seek redress in a court, and if they are successful, the Court of International Trade will be able to afford them relief which is appropriate and necessary to make them whole."

 

 JURISDICTION OF THE COURT:

specified types of subject matter jurisdiction (international trade), “this court has a residual grant of exclusive jurisdictional authority to decide any civil action against the United States, its officers, or its agencies arising out of any law pertaining to international trade.’

 

The Complaint: 

Link to 21 page Complaint found here

The first paragraph is STUNNING, the plaintiffs CLEARLY state their argument, that president Trump’s Actioms, compounded by Congress’ inability to be the Check and Balance...are in violation of our Constitution...at some point I’d expect the plantiffs to possibly argue the “Take Care Clause” too because numerous Executive Orders and Proclamations have been successfully challenged. The Complaint reads in part:

 

...submit their complaint in this action seeking a declaratory judgment that section 232 of the Trade Expansion Act of 1962, as amended, 19 U.S.C. § 1862 (“section 232”), is unconstitutional as an improper delegation of legislative power to the President, in violation of Article I, section 1 of the Constitution and the doctrine of separation of powers and the system of checks and balances that the Constitution protects.

 

Plaintiffs also seek an order of this Court enjoining defendants from enforcing the 25% tariff increase for imports of steel products and other trade barriers imposed by Presidential Proclamation 9705 of March 8, 2018 (the “25% tariff increase”), as subsequently amended.

Plaintiffs’ claims arise under the Constitution, and this Court has jurisdiction over this action under 28 U.S.C. § 1581(i)(2) and (4).

Because this action raises an issue of the constitutionality of an Act of Congress and the constitutionality of a proclamation of the President, and because this action has significant implications for the administration of the

 

The essence of this Complaint focuses on the constitutionality, separation of powers and the law as well as SCOTUS precedence is NOT on Trump’s side. It shouldn’t come as a surprise, given we have the nifty three-co-equal branches of Government where the check and balance hopefully protects us from an authoritarian state. Yet president Trump’s actions prove over and over that he actually believes he’s above the law and our Constitution. He’s not.

The Plaintiffs reasoning for this Complaint:

... rests on another constitutional flaw in the law, which plaintiffs say violates the doctrine of separation of powers and the system of checks and balances that the Constitution protects: there is no provision for judicial review of the President’s decisions in how he responds to the perceived threat to national security from imported steel.

Moreover, recent Supreme Court cases have precluded judicial review of discretionary decisions by the President under similar statutes, and the Justice Department in a recent case involving this very tariff has stated that the courts cannot rule on whether the President has complied with the law. 

 

 This is further explained in paragraphs 24, 26 and 27), specifically stating that section 232 limitations and lack of specific guidance, this allows Congress to essentially give the President unlimited legislative power, specifically on trade matters, such as tariffs. (pages 14 thru 17) 

 

section 232 does not embody an intelligible principle, even as applied to which countries should be excluded from any tariff or quota because they are reliable sources of steel during a conflict, the President is free to exclude certain countries or not, without regard to whether they are or are not likely to be able to supply steel when required by national security. On that question, the following facts are uncontested based on the Steel Report, public submissions, and/or statements by the President:

 Section 232 did not require the President to take those consequences into account when he imposed the 25% tariff increase, although it also did not forbid him from doing so. Among the most significant adverse effects on which there is no intelligible principle to guide the President are the following:

 

 

Alan Morrison, AIIS et al lead Counsel does not mince words and he further explains how this particular Complaint is uniquely positioned, both on merits, substance and procedure:

 

“Unlike most cases brought against actions of the Trump administration, it is Congress—through its delegation of unfettered discretion to the President in this statute—and not the President that is the violator of the Constitution,”

“The President simply took advantage of the opportunity to impose his views on international trade on the American people, with nothing in the law to stop him.” 

 

Morrison is absolutely correct when he asserts the lack of judicial review, coupled a president who actually believes he’s above the law and our Constitution. Because president Trump is either unwilling or is receiving terrible advise and advice.. Morrison concludes:

“represents a far more dangerous threat to our democracy than any steel imports ever could.” 

 

Accompanying the 21 page Complaint, the plaintiffs filed a motion seeking a 3 Judge Panel, pursuant to 28 U.S.C. § 255 and [Federal Civil Rules of Procedure] Rule 77(e)(2), link found here.

requesting that the Chief Judge of this Court designate three judges of this Court to hear and determine this action.

 

I for one would keep an eye on this case, the plaintiffs have informed their member the following three reasons why they believe this Complaint is necessary:

Three main reasons:

First, in our view, there has never been a statute that has provided as little control over the President or any federal official and his unfettered discretion in a field that is incredibly complicated and in which very serious tradeoffs are inevitable.

Second, unlike almost every other case, there is no judicial review of the President's decision, which means that neither Congress nor the courts can impose any check on him.

Third, in March of this year, the Supreme Court granted review in Gundy v US on a delegation claim in a much less wide-open statute than section 232, suggesting that the Court is interested in the delegation issue, especially because the lower courts upheld the statute challenged there and no court found it unconstitutional.

Again put a pin in this Complaint becauss it certainly has some serious merit but also the implications could result in a SCOTUS landmark decision....-Spicy Out

 

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