Decision out in Byrd Amendment Constitutionality Lawsuit

On Feb. 19, the U.S. Court of Appeals for the Federal Circuit issued its decision in the interesting case about the Constitutionality of the Byrd Amendment.  The name of the case is SKF USA Inc. v. U.S. Customs and Border Protection, Fed. Cir. No. 2008-1005.  The question of its constitutionality had not occurred to me when the initial law was passed nearly a decade ago, but once I heard the claim, I immediately agreed that it is a clear instance of the government rewarding speech with cash depending on what side of a controversy the speaker is on.  And I would have been surprised to have that sort of law declared to be constitutional.  I was surprised, therefore, to see the Federal Circuit uphold the law on a 2-1 vote.  I commend the thoughtful dissent by Judge Richard Linn.  The majority opinion, authored by Judge Timothy Dyk, suggests that support for or opposition to a petition is commercial speech and that the government payment is designed to reward parties who promote the government's policy against dumping. In my view, the majority went off course in viewing support for antidumping duties as commercial speech and in likening the government payments given to companies hurt by dumping as attorney's fees or a qui tam payment.  A qui tam payment is a payment to an informer who helps in the prosectution of a fraud against a government when the government recovers damages.  Dumping, of course, is not a fraud against the government and the antidumping duties collected are not a monetary recovery by the government.  Rather, antidumping duties are prospective tariffs paid by importers and sometimes passed on to consumers.