The 1962 Trade Expansion Act, Section 232, provides that under certain circumstances the President may impose tariffs based on a recommendation from the U.S. Secretary of Commerce if “an article is being imported into the United States in such quantities or under such circumstances as to threaten or impair the national security.” This section was used sparingly, notably in in 1979 and 1982, but has never been invoked since the World Trade Organization (WTO) was established in 1995 – until now.
The legislation authorizes the Secretary of Commerce to conduct comprehensive investigations [emphasis added] to determine the effects of imports of any article on the national security of the United States and specifies a number of factors that are to be considered. It requires that the Secretary notify, and consult with, the Secretary of Defense concerning the investigation. The Secretary’s report to the President, required within 270 days of initiation of this process, focuses on whether the importation of the article in question is in such quantities or under such circumstances as to threaten to impair the national security. The President can concur or not with the Secretary's recommendations, and, if necessary, take action to “adjust the imports of an article and its derivatives.”
Since the WTO came into force in 1995, the United States has conducted only two Section 232 investigations. The first, in 1999, found that certain petroleum imports threatened national security, but no action was taken. The second investigation occurred in 2001 and focused on whether imports of iron ore and semi-finished steel threatened national security – essentially the same issue that forms the basis for the March 8, 2018 decision by President Trump to impose tariffs on steel and aluminum. The 2001 investigation concluded that although the commodities are important to national security, there was no evidence that their importation presented a threat.
Trump Tariffs under Section 232
Bearing in mind this background, let us now consider the process followed by President Trump. On March 8, 2018 he cited national security concerns as a basis for using Section 232 to impose tariffs on steel and aluminum effective within 15 days, although Canada and Mexico were given a temporary exemption. No mention was made of the mandatory investigation by the Secretary of Commerce nor has there been any indication of a report of such an investigation as required within 270 days of its commencement.
In late May, it was announced that the Canadian and Mexican exemptions from the steel and aluminum tariffs would expire on May 31, ostensibly because of the lack of progress with the NAFTA negotiations. National security was not mentioned on this occasion and on June 20, the U.S. Secretary of Commerce told a Senate Committee that Canada is not a national security threat to the United States and that the steel and aluminum tariffs would go away if agreement could be reached on NAFTA. The Secretary also acknowledged that – contrary to President Trump’s frequent hyperbole – the U.S. does not have a steel deficit with Canada but, in fact, enjoys a substantial surplus with respect to this item of trade.
Trump’s Actions Have No Legal Authorization
So President Trump used Section 232 to impose tariffs on steel and aluminum on the grounds of national security, did so without any indication that he followed the procedures laid down in the legislation that include consultation and the conduct of a comprehensive investigation, and his Secretary of Commerce claims that Canada is not a national security threat and that, in fact, the U.S. enjoys a favourable balance of trade with respect to steel. In addition, repeated statements from the President and others make it clear that the tariffs have been imposed as a bargaining chip in the NAFTA negotiations.
The only conclusion one can draw is that the President acted outside the rule of law. Since he had no basis under Section 232 for imposing the tariffs, he exceeded his authority in introducing them. Why is there not a court challenge on this matter? Why are Americans not more concerned about a President who abuses his position, ignores specific legal requirements, and operates as if he were above the law?