To almost nobody’s surprise, the United States Court of Appeals for the Federal Circuit recently upheld the Constitutionality of Section 232 of the Trade Expansion Act of 1962, the statute invoked by President Trump to impose “national security” tariffs on imported steel and aluminum products.

In American Institute for Imported Steel v. United States, No. 2019-1727 (February 28, 2020)(“AIIS”), a three-judge Federal Circuit panel held that since the Supreme Court had upheld Section 232 as a constitutional delegation of Congressional authority in 1976, it was bound by the Supreme Court’s decision in that case, Fed. Energy Admin. v. Algonquin, Inc., 426 U.S. 548 (1976). In Algonquin, the Supreme Court had upheld Section 232 as a constitutional delegation of legislative power; the Federal Circuit held that it was bound follow that ruling. The Federal Circuit declined to speculate on whether, in the absence of the Algonquin decision, Section 232 would be constitutional.

While the Federal Circuit noted that 5 of the current Supreme Court justices have, at various times, raised critiques regarding some of the rules on which the Algonquin decision rests, any decision overruling or distinguishing Algonquin would have to come from that court.

Does this decision mean that all of the other challenges to Section 232 tariffs currently pending in the courts are derailed? Not at all.

The Federal Circuit’s AIIS decision is narrow in focus and, interestingly, was issued as a “nonprecedential” opinion. The Court held that for AIIS to prevail in its facial unconstitutionality claim, it would have to show that Section 232 is unconstitutional and unlawful in all of its applications. This the plaintiffs had not done. However, the Circuit Court took pains to note that “AIIS did not allege a failure to adhere to required procedures or action beyond the statutory constraints.” Such actions, the Court insinuated, could proceed.

Most of the challenges currently pending in the United States Court of International Trade (CIT) allege that the President failed to adhere to required procedures. Several such cases allege that the President acted in an untimely fashion in imposing steel and aluminum tariffs on products of Canada, Mexico, and the European Union; and in increasing tariff rates for a time on Turkish steel products. More recently, over a dozen lawsuits have been filed to challenge the President’s recent proclamation attempting to extend the Section 232 tariffs to derivative steel products (such as steel nails), and “derivative” aluminum products (such as aluminum wire). In at least two of these cases to date, the CIT has taken the virtually unprecedented step of enjoining CBP from collecting Section 232 tariffs on “derivative” products.

AIIS will now ask the Supreme Court to hear its appeal. The fight is far from over.