Keep your eye out for the Gundy Supreme Court decision, which should be out soon:
the underlying issue is whether the court will revive the long-dormant principle that Congress cannot delegate its legislative power to executive agencies. The court has not struck down a federal law as an excessive delegation of legislative powers since its 1935 rulings in A.L.A. Schechter Poultry Corp. v. United States and Panama Refining Co. v. Ryan. The court has said that delegations must have intelligible standards to guide the exercise of discretion, but the reality has been that all delegations have been upheld.
This case is relevant for the constitutional challenge against Section 232, discussed here. The CIT has ruled in that case, and the plaintiffs are trying to go directly to the Supreme Court. Some of my Cato colleagues have filed an amicus brief in support of the cert petition. Here is an excerpt:
QUESTION PRESENTED
This case presents a facial challenge to Section 232 of the Trade Expansion Act of 1962, as amended, 19 U.S.C. § 1862, and its use to impose more than $4.5 billion of tariffs on steel products, on the ground that Section 232 unconstitutionally delegates legislative power to the president in violation of Article I, Section 1 of the U.S. Constitution and the principle of separation of powers. A three-judge panel of the Court of International Trade held that it was bound by this Court’s decision in Federal Energy Administration v. Algonquin SNG, Inc., 426 U.S. 548 (1976), which rejected a statutory challenge to the president’s order under Section 232 and an undue delegation argument offered to bolster that challenge.
Petitioners present two questions in their petition before judgment (which they file because an appeal to the Federal Circuit would not advance the development of the law): (1) whether the C.I.T. erroneously found Algonquin to be controlling; and (2) whether Section 232 is facially unconstitutionally because its congressional delegation lacks an intelligible principle. Amicus speaks to both of these issues by addressing the following question:
Whether the Court of International Trade erroneously concluded that rationality review is not a necessary complement to a permissible delegation of Congress’s power to regulate foreign commerce under Section 232 of the Trade Expansion Act.
More here:
Although “[t]he Constitution sought to divide the delegated powers of the new Federal Government into three defined categories, Legislative, Executive, and Judicial,” INS v. Chadha, 462 U.S. 919, 951 (1983), the Framers “understood that a hermetic sealing off of the three branches of Government from one another would preclude the establishment of a Nation capable of governing itself effectively,” Loving v. United States, 517 U.S. 748, 756 (1996) (cleaned up). Accordingly, the nondelegation doctrine is a flexible check against the dangerous concentration of power, which is, of course, the purpose of the separation of powers principle. See The Federalist, No. 47 (Madison) (“There can be no lib-erty where the legislative and executive powers are united in the same person.”).
At a minimum, the nondelegation principle requires that Congress delineate the boundaries of its delegated authority with an “intelligible principle.” J.W. Hampton Jr., & Co. v. United States, 276 U.S. 394, 409 (1928). Yet courts historically have linked nondelegation analysis to some sort of mechanism—typically judicial review or robust administrative procedures—to police the delegee. See, e.g., Mistretta v. United States, 488 U.S. 361, 379 (1989) (“Only if we could say that there is an absence of standards for the guidance of the Administrator’s action, so that it would be impossible in a proper proceeding to ascertain whether the will of Congress has been obeyed, would we be justified in overriding its choice of means for effecting its declared purpose.”) (quoting Yakus, 321 U.S. at 426); see also Amalgamated Meat Cutters & Butcher Workmen of N. Am., AFL-CIO v. Connally, 337 F. Supp. 737, 744 (D.D.C. 1971) (three-judge panel) (“The claim of undue delegation of legislative power broadly raises the challenge of undue power in the Executive and thus naturally involves consideration of the interrelated questions of the availability of appropriate restraints through provisions for administrative procedure and judicial review.”).
An analysis of Section 232 confirms the obvious and essential relationship between the nondelegation principle and the availability of meaningful judicial review. In Fed. Energy Admin. v. Algonquin SNG, Inc., this Court located Section 232’s “intelligible principles” in the requirements that the president regulate for “national security” purposes, and that the regulation pertain to “imports.” 426 U.S. 548, 559 (1976). Although these are capacious concepts, Congress did not intend for courts to allow the president to simply cite “national security” and “imports” as pretenses for unfettered regulatory power. To the contrary, if a regulation promulgated under Section 232 is not confined within the standards prescribed by Congress, then the tariffs lie outside the president’s delegation and are, therefore, ultra vires. In Algonquin, the Court implicitly acknowledged that the statute’s intelligible principles amount to judicially testable standards when ob-serving that the “broad” phrase “’national interest’ . . . stands in stark contrast with [Section 232’s] narrower criterion of ‘national security.’” Id. at 569.
...
To be sure, this Court is rightfully reluctant to exercise non-statutory review when the president’s statutory authority implicates political questions. See, e.g., Orloff v. Willoughby, 345 U.S. 83, 90 (1953) (denying review of president’s exercise of statutory authority to regulate the commissioning of Army officers); Dakota Cent. Telephone Co. v. S.D. ex rel. Payne, 250 U. S. 163, 184 (1919) (denying review of president’s assessment of state of war as a statutory condition for regulation).
Section 232 of the Trade Expansion Act, by contrast, results from the operation of Congress’s “exclusive and plenary” authority to regulate international commerce. See Board of Trustees of Univ. of Ill. v. United States, 289 US 48, 56 (1933); see also Am. Inst. for Int’l Steel, Inc., 2019 WL 1354084, at *7 (Katzman, J., dubitante) (explaining that “the power to impose duties is a core legislative function”). Indeed, the lay-ing of duties is one of the very few broad regulatory tasks that was once performed directly by lawmakers via a long series of detailed and specific tariff acts passed up through the early 20th century. See George Bronz, The Tariff Commission as a Regulatory Agency, 61 Colum. L. Rev. 463, 464 (1961) (listing tariff acts). Although the president has a constitutional role in foreign commerce during peacetime, that function is limited to the negotiation of international agreements. See, e.g., Pub. Citizen v. U.S. Trade Rep., 5 F. 3d 549, 552 (D.C. Cir. 1993) (refusing to review the president’s decision making in the exercise of statutory authority to negotiate a multilateral trade agreement).
Yet even where, as here, the president’s statutory powers do not implicate political questions, the Court nevertheless might be reluctant to review presidential decision making, out of concern over comparative institutional competencies. As observed in Boumediene v. Bush, “neither the Members of this Court nor most federal judges begin the day with briefings that may describe new and serious threats to our Nation and its people.” 553 U.S. 723, 797 (2008). Such concerns about relative expertise, would be misplaced in this case, however, because a properly attenuated reasonableness review doesn’t require subject-matter familiarity.
In Franklin v. Massachusetts, this Court foreclosed so-called “hard look” review of the president’s statutory powers. See 505 U.S. at 800–01. Therefore, some-thing less than a “searching and careful” review—the “hard look” standard—is required. See Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416 (1971). These background principles suggest that a properly attenuated review of presidential regulation is confined to the subset of “hard look” factors that are independent of subject-matter familiarity.
The first is the “simple but fundamental rule of administrative law” that the delegee of congressional power must set forth the grounds on which it acted. See SEC v. Chenery Corp., 332 U. S. 194, 196 (1947). The second is a corollary of the first and entails the “duty to explain [a] departure from prior norms.” Atchinson, T. & SFR Co. v. Wichita Bd. of Trade, 412 U.S. 800, 808 (1973) (citations omitted). The third fac-tor on this non-exhaustive list serves to ensure that the delegee does not “rel[y] on factors which Congress has not intended it to consider.” Motor Vehicle Mfrs. Assn. of United States, Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983).
None of these “not so hard look” factors require courts to possess any expertise beyond common sense. And all of them are offended by the president’s Section 232 steel tariffs. To cite an obvious example, the president offered no explanation for his choice of 25 percent tariffs on imported steel. This is a plain violation of the “fundamental rule” that a delegee of congressional authority must at least explain its regulation.
The Section 232 regulations on steel imports also departed radically from prior practice without explanation. For example, where the president’s Section 232 regulations might have macroeconomic effects, the Department of Commerce weighed the costs against the benefits. See U.S. Dep’t of Commerce, The Effect on the National Security of Imports of Crude Oil and Refined Petroleum Products, at ES-9 (Nov. 1999) (“The Department concurs with the conclusions of the 1994 and 1988 studies that, on balance, the costs to the national security of an oil import adjustment outweigh the potential benefits.”). Despite this consistent prior practice, neither the department’s recommendation nor the president’s proclamation acknowledged the costs of the Section 232 regulation.
As noted above, the president departed from his predecessors’ uniform practice of accounting for the regulated countries’ relationships with the United States. Also noted already, the president and the secretary of commerce impermissibly relied on extraneous factors by basing the Section 232 regulation on the inefficiency of other forms of statutory import relief, which was precisely what Congress intended to avoid.
The Section 232 steel regulation bears other conspicuous signs of irrational decision making. The point here, however, is to show that judicial review can be tailored to the president such that it requires no subject-matter expertise. Under this limited oversight, the regulation does not withstand scrutiny.
