back in a different constitutional that please the court section two hundred and thirty two violates the constitutional prohibition on the delegation of legislative authority because the power given to the president to read just imports contains no substantive boundaries whatsoever on the front end there is a capacious definition of national security which includes anything that effects the economy thereafter the president think doesn't really say actually well you're out of that's an interesting question because there is no indication whatsoever that there's any limitation at all your honor may remember in the court of international trade the government was asked the question could the president ban peanut butter and the government did not answer that question but was clear that whatever the president did the court could not review it and so in effect there is no barrier on the front end and the surely no barrier with respect to the remedies that court the president can impose tariffs is going to pose quotas licensing fees or some combination and any i'm out without regard to any statutory limitation of whatsoever from the beginning of this case your honor we have asked the government one thing about the boundaries please give us one example something the president could not do under this statu honor i take the allergy from the united states against lopez this was the case in which the government was seeking to uphold the ban on guns within a one thousand feet of the school under the commerce clause and in some abstract in advance when well if that were the law your honor then there would be no limits whatsoever on the power of the congress to delegate to the president you could allow the president do anything he wants to do so for example in this case if we're to take it to the extreme the president could as we've read the statute decide that you know tariffs are not enough what we want to do is we want to make the pavement of the tariffs on steel products nondeductible for income tax purposes and that will really put teeth in the statute and in the end these tariffs nothing prevents the president from doing that and if the president can do that he has taken the place of congress we no longer have congress making the important policy decisions and the president just be turned over to the power of the president to do whatever the president thinks in his discretion is useful for stemming the problems from imports i don't think that's what separation of powers is about the supreme court has never suggested that we could completely turn over to the president an unchecked power what is present in this case  licensing fees was not authorized by the statute or if it just just so i think i understand it's correct me if i'm wrong as a prelude to that there was an argument that says that said you know when the statute ought to be interpreted  constitutional principle in mind and the supreme court said constitutional avoidance not only do we not see a problem we don't even think there is whatever that serious issue standard is met with respect to the  algonquin was the authority of the president at issue here is the authority of congress were complaining about what congress did or more importantly what he didn't do by putting any value statute and the only challenge in this case  clear that so me somebody had standing to object to somebody else's act or on your own taxes the government's position is that nothing the president does in exercising his discretion under the statute is judicially reviewable and of course maybe you don't think it seems to me tell me if i've misunderstood this but what you say sounds like when i remember the government's position position being when you're talking about the exercise of discretion and i don't think it's the government's position or in any event i'm not sure it's the that violation of a statutory constraint or and on constitutionality would be under certainly judicial review of them indeed in algonquin the another distinguishing feature is that in that case although we in the end the court of international trade the government dispute what the standard regarding presidential review was at that time the court there actually reviewed the statute and said the remedy that the government imposed was permissible my thunder standing what the government's position is here is that no matter what remedy they choose it's not judicially if you ask the government i don't think they will say it's reviewable either and that's because the only positions that the government says only part of the statute the government says is judicial review of all are whether they got a president got a recommendation from the secretary and whether he is the president implemented that recommendation within ninety days nothing else is judicial or viewable those are procedures moving inside the government's position which you articulated for them and we'll see what they have to say but leaving that aside so you would just face with the question without her having heard from the government one way or the other would you say that the hypothetical you possibly your caller who jokes toronto would be something that could be  secretary st and then to the president whatever the president does is is not judicially reviewable a lesson there's a statute that specifically provides for that and here we have both the choice of remedies and whether a product falls within that the t paraphrasing we're not approving everything that might be done under the statute what we're saying is that this is permissible and that assumes two things st that there are some boundaries and we have not been able to identify any of them no a significant problem if this were a straight a ph cases to whether that could happen but i'm sure the government will say today as it said before no you can the president didn't consider something that's not judicially reviewable to the government s argument that here congress was just elevating the reading at least some of the authority that the president ernie hyde with respect to national security and foreign affairs this statute allows here but this is not a national security case and if there were any doubt about that we know that in this particular case the secretary of defense was asked do you need steel for national defense purposes of the secretary defense that's part of thing about that the secretary had already considered out current needs representing three percent without saying anything at all about what both the secretary and later the president said about possible needs in a national emergency looking into unfair or improper practices by any country with respect to any product so those are different statutes entirely and those might it was would present very different problems certainly on on the front end and almost all of them have provisions limiting the amount of discretion of the president why are we talking about the specifics of the exercise in this case you know a case in which you say you have just a facial challenge i raised it to make it clear that this is not a national security case that the justification is not say just all they asked me the question and i responded why this was not a national security case in addition to the fact that congress relied on its foreign commerce power and its power to impose duties and that the president has is the constitutional delegation of authority the supreme court concluded that the statute usually fulfills the intelligible principle standard the same standard that this court would be required to apply for this court addressing the issue in the st instance could you please address judge trying to use question the hypothetical about who loves and whether one would be able to go to court and challenge or just move the tools but the tax hypothetical and whether one would be able to go to a crime challenge whether that's within the boundaries president acts beyond its that is that a tory thirty clearly misconstrues the governing statute or there's a significant procedural violation so in the hypothetical that was given we believe that would be an example of an argument that the president has exceeded his statutory authority that's the authority limited to adjusting imports and that would be an argument that could be addressed by the court in the st instance i would say that i you know the whether or not there the veil ability of judicial review or the scope of the availability of judicial review is not an issue that the supreme court has ever said is part of the non delegation inquiry that makes some logical sense as an supreme court has ever said this one way or the other that judicial review whether judicial review is available to effectively enforce whatever limiting principle or intelligible principle there isn't a statute or if intelligible principle eventual really drops out of the analysis some other standard for measuring the constitutionality of a delegation certainly whether there is an intelligent principle will inform whether there is a fact of judicial review where judicial review is available but as we have cited in our in our brief there's certainly circumstances in which there's been delegations to the president particularly in cases of dalton merely said was that continuing to affirm a long standing tradition of judicial deference to the executive's fact finding and exercise of discretion going back you know i think probably earlier than george bush and i are and here by executive you mean the actual constitutional executive namely president in this particular example yes so the fact that there is a  tradition rooted in separation of powers as between the executive and the judiciary is doesn't really answer the question that's present with been presented by this case which is has congress u unconstitutional and delegated its lawmaking power chief executive and congress did not congress set forth the policy that that it wants the president to follow it's identified the the individuals who are charged with certain aspects of of the investigation and the fact finding and it's the linea did what the president is is is authorized to do and there are meaningful boundaries the president may only adjust the importance of the article and  definitional content to national security or for these purposes undefined term subsection do you have the statute provides a long list of factors that congress and those are non exclusive list they are not exclusive they also say that any other relevant factors factors that are relevant to that the national security purpose of the statute which is to prevent the impairment of national security that is being abolished by right i was asking a question not about the circumstances that might be relevant to to a determination national a finding of the concept is up i don't believe there's i don't know the answer i don't know the answer that question i what i what i can say is that i don't believe that congress intended there to  because the question of national security is such a broad and judgment filled question i don't believe that congress at least part with respect to what the president is authorized to do in this particular statute intended to well i think that in in determining whether the president concurs with the final finding of the secretary is that in this particular case the imports of steel articles are threatening to impair the national security the president makes his own factual determination a factual finding to reach that determination but but yes but in doing so he's also interested in what those factors mean and also interpreting what we're national security me absolutely yes yes that the president was was delegated the power to make laws to make these unfair competition codes without any guidance from the congress about what the policy to drive these unfair competition laws that were then used to impose criminal penalties on on the on the on the plaintiff in that case or the defendant that case here congress has set forth a policy the law whether whenever there is a threat of impairment to the national security that's caused by the importation of articles then then there then we are to adjust the importation of the article so that there is no longer a threat  that's the law and the the responsibility of the president is to identify the certain the factual circumstances in which applying the law is appropriate and to exercise his judgment in a determining what is the best way to  address the threat to adjust the imports so whether it is by quotas by tariffs by some other means what is the what is the way to do that so there hasn't been a delegation of legislative authority or law making power to the president president is charged with finding facts identifying the circumstances in which the policy is to be applied and then applying it absolutely there is a great amount of discretion that's been afforded to the president in this circumstance and that is completely consistent with the body of of law of non delegation doctrine cases in which particularly in the areas of foreign affairs foreign commerce national security president often has a large amount of discretion and judgment to exercise the law and i think you can supreme court has has decided all of those involved extremely large exercises of judgment that are rests with the president and that's consistent with over two hundred years  of cooperation between congress and the president in those particular areas of law it is important to note that this report professor morrison is absolutely correct the supreme court didn't need to resort in algonquin to this  l principle of law that in areas of national security and foreign affairs where we're on the line the fact that the president has coexistent powers in those areas may resolve any constitutional concern twice it says without excluding any other factors so further emphasizing the open ended nature of if what the president issued an proclamations here have been subject to approval and approved by congress there would be no constitutional question about it and that would be because the congress can make the kind of arbitrary decisions without distinction between products and remedies just the kind that the president made here but the reason under our constitutional system why the congress can do that is because there are significant checks built into the legislative process  there's not a word in this statute the suggest that that would be an improper use of the president's power and that's essentially the problem here and we submit your honor that the spring court was clear  here that this statute is a proper delegation of legislative authority then indeed the delegation dr and is dead and we do not believe it is thank your honor thank you