hogan are you the president acted constitutionally and lawfully by modifying the import restriction on steel article from turkey in setting aside proclamation nine thousand seven hundred and seventy two as unlawful the court of international trade committed to critical errors both of which require reversal st the trial court ignored settled congressional meaning action to adjust imports is a continuing authority and includes modified previously acted taken action we kno imposed by any provisions of two hundred and thirty two absolutely not you know there are limits that are set forth in the statute i think most notably the president cannot act st without an investigation by the yes the the the timeframes are for concurrence and implementation and i should note that in this case the president did act within those timeframes to concur with the secretary's finding and to declare proclaim the course of action that the president is going to take but that's a separate question from the question of whether once the president has taken timely action as he did here the authority that is been delegated by congress includes the authority to of the prime source case which seems to say things that that has some bearing on this question of whether such such action means a continuing course of action is  that our i think our our position our interpretation the statute is based on it follows much the same and that opinion and that we're relying upon the princip framework that we're dealing with here that does contain some tempore limitations it seems to me that that that framework is based on ensuring that the president is taking action be sure that he's acting on updated information president did say that he had received information from from the secretary and so nothing in this in the statute precludes the president from getting those updates that that we might expect the president to have  were updated information i think it's safe to assume that the congress wants the president to act on the best information that the president has and i think that's in part the reason for the delegation that it's the president and his advisors who are going to have the what i would say that the deadlines are not so much to ensure that the president is acting on fresh information but to ensure that was a threat of impairment to national security has been identified that there's prompt action so that you know there's a deadline for the secretary to complete that investigation and then there are deadlines time limits for the president to determine whether he concurs and to implement that that action but you know we know that the prompt action that congress was most concerned about was the president's concurrence and the president starting to do something and we can look at the historical evidence of  the machine tools case and that that the perception that congress has that that the press the president reagan was sitting on a report not making a decision not taking any action it's very clear in the trial court say i guess i don't just don't think we dispute that the that congress intended at the president act on the best information that that he has and that's in part why the delegation has been given to the president rather than  there's no imposition on the president as to she can additional information or she can an updated report if if additional actually wants to be taken that indicates that at least one maybe even the dominant reason for the one hundred and eighty eight imposition of the time limits was to avoid action on stale information or was it that the things that i guess i'm remembering from from your point of view is that the concern was that without a deadline the president could simply not take any action at all and that was problematic but are there materials that have been cited to us or that you're aware of in which portions of congress committee members members of congress whatever said they were concerned about  of forcing the deadline by requiring a new secretary report following the procedures of consultation in terms of the practical consequences around i think it's it's a consequence to national security it's not a mere administrative inconvenience and it is in some sense repeating the same work twice us the world has changed and thus the world has changed and i would say that the president always has the right to ask the secretary for a new report we see that president nixon did that after twenty years  of operating under the same original proclamation on petroleum products that but it's not what is required from the statute and it would hinder the president's ability to be able to act quickly  domestic or utilization of domestic capacity is still too low for a sustainable steel industry and and that is after the south korea and brazil agreements from a few months before why is that aided a determination in substance that the agreements that have been reached with south korea and brazil are ineffective in a that's a good that's a that's a good example so suppose that the president raises the terrorists and doesn't he doesn't reveal why his race is terrors but he did it because not because there's an increase in the risk of national security but because of trade dislocations that have been caused by the increase in the tariffs moving to labor or even the syllable oil now the seller will have caught is now the the the action to adjust the imports what action the president takes is entirely within his discretion once he's made that concurrence that there is a threat of impairment to national security so long as the president  continues to believe that there's a threat of impairments the national security then the statute delegates a great amount of discretion to the president to determine how to whatever decision the president makes it's got to be  form of impairment to national security that i have selected to address that sort of impairment are ineffective and so i need to make changes so that so that there will no longer be a threat impairment to national security in other words that i can achieve the statutory objective i would say that the difference is of the president's authority under this statute and trying to figure out how far does that authority go it sounds like you're contending that once the commerce secretary consultation with the defense secretary does an investigation and issues a report that there is a threat to national security and and articulate a specific question now for what that threat to national security is and here it was the the domestic steel plants being underutilized and not being utilized at a high enough level  s defense needs and then the president acts and agrees under national security the president needs to take action and your position here is that the president has the right under the statute it can take continued action if that continued action doesn't need to be tethered to not only national security but the actual rationale that was articulated in the commerce secretary report or in your view is it that once the president agrees that there's a national security issue then the president really has basically unfettered discretion in the name of national security to do whatever he wants whenever he wants and and just invoke the concept of national security and say well now i'm moving the rates up now i'm reading moving them down now i'm switching over to quotas here they're everywhere all under the broad umbrella of national security i'm not sure if i'm my question is clear but do you understand where i'm trying to go go i'm trying to figure out to what extent is the president's authority have some constraints and guardrails put in place given the the preconditions articulated in the secretary's report on why there's a national security problem so the president's discretion while well very broad it is not it is tethere to the action that the statute charges the president to take which is adjusting import so the president is always limited to the articles or their derivatives that were the subject the secretary's investigation and the president has to act with just of import so he can't take any action and there has to be some connection to the articles that were the subject of the investigation or their a hypothetical here it appears that the president took a nd action because he concluded that  the expected increase in domestic steel production under the st action didn't really happen and so we as a country were not yet at that eighty percent utilization rate so we said ok well then we need to reduce imports further and we're going to do that by increasing the tariffs on the imports coming in from turkey but what if  and your theory of there is there's a connection there between that nd proclamation and the secretary's report but what if the president instead had said well i'm i've decided now through different rationale than the one that was given to me by the commerce secretary i'm going to yank up tariffs on on turkey and maybe some other countries in your view would that be possible under the statute or or for example would that be a non delegation doctrine problem be so i wouldn't want to suggest that there might be changing facts and circumstances that that might alter how the president i think that still gets to the question of the remedy is on the weakening of the our internal economy and so i wouldn't want to say that that would necessarily be precluded under under the statute because i think that the rationale would still be the same well what i'm trying to do in my hypothetical is create a different rationale i mean they're both invoking the notion of national security i understand that but it's a different rationale a different understanding of what it would take in terms of protecting national security and now the president is electing to act on a different rationale than the one that was articulated in earlier agreed upon with the secretary of commerce instructions in the statute that how descriptive the president must be in what he's concurring to other than the ultimate finding then is i understand your position then if as soon as there's a concurrence  meeting of the minds between the president and the secretary of commerce then the president basically has an open playing field any date after that to you know and successive presidents  can in the name of national security again for a basis that perhaps different than very different than qualitatively and then what was the initial basis for finding a national security threat take  many other actions in the future just because of this initial secretary report that was originally based on a different rationale for national security is that how on is that what your finding with the ultimate finding that there's a threat of impairment to national security caused by by either the quantity or circumstances then from that point forward he has a tool that he can use whenever he wants to  for whatever reason when i say reason i mean specific rationale long as he can say that it's connected to national security that there is so long as the reason is to is tied to the statutory objective and it's you know and action to adjust import such as you know limiting principle of the statute and and yes and  the secretary in the present does it just say yes i agree the president is saying yes i agree to the data and the indicators included in the report that provide the basis for me to say that i need to increase terrors and it also provides the president the bases by by the levels at which to increase tariffs if that's the case and the president concurs with that report in that manner with the data in the report then how is it that the president can later just increase at its own discretion and that it will make a dramatic increase i would go back to the statute which does not require the president to concur or agree with any of the data or any of the recommendations for action that that the secretary puts forward in the report th what the what subsection c one a one requires the president to do is to determine whether he concurs with the finding of the secretary and that finding is a finding that the article is being imported into the united states in s is the president a subset recommendation then the prisons deceptive the basis of that recommendation is if that is that true reasoning as to consult with the secretary of defense to involve the public if it's appropriate and to provide the president with that information that is certainly informs the president but the president is not limited well in terms of of the remedy that steps that the president is selecting yes congress intended that the president have a continuing authority to modify to terminate to reduce for two  monitoring steel imports and in case the president wants to make future adjustments let's say that was deleted something that proclamation is it was apprised of in his view the need for further adjustments that primarily was tariffs which is the action that we're talking about here but also included negotiations with other countries and the money that the court has has that omitted and in the  understand where with the duration components come into play because i know that if your position is duration encompasses an indefinite time period  place until the president determines that they're no longer necessary and i don't think there's any evidence that the court i'm sorry that the congress intended that the president for example say these tariffs will only be in place for one year because we don't think that that that that runs one contrary to sort of the predictive judgments that that congress has delegated to the president and then just as a practical matter and in terms of national security it doesn't make any president in two thousand and forty five could refer back to this proclamation and say well i want to do the following increases and decreases to imports from the exercising that authority from the proclamation from one thousand nine hundred and fifty nine all the way tonight eighty two and congress can always pull back that authority i think another point to make here is that one congress who knows how to put time limits on the president we can see that examples like section two a one of the trade act which president and i understand your view is that this is a very broad authority and i understand your your rationale for why that is so but can i take you back to algonquin and the non delegation doctrine and the concern there  you know who knows what the state of play is without conklin today but assuming that it's right nevertheless gunk when rationale was really about  some kind of intelligible principle to which the president has directed to conform and and now gone when the court said well it was that initial secretary report investigation and is that it seems to be the government's position that the president under this authority under this statute can take lots of different actions in the name of national security that doesn't necessarily conform to the articulated reasons the secretary had  made an investigation findings on in the name of national security so can you explain why everything would still be constitutionally acceptable in view  understand that i'm talking about a hypothetical that you are embracing which is the idea that the president really have this power this very broad power to engage in all kinds of subsequent actions entire litany of actions that go far into the future that are really although in the name of national security completely untethered to the specific rationale that the secretary had made for its basis why there was a national security threat and then why isn't that a non delegation problem in that situation  well let me let me from the st answer with specifically with respect to to algonquin because in algonquin the court was actually a supreme court was actually reviewing action that was taken again some twenty years after the original proclamation of petroleum products and in that the court the supreme court describes what president nixon had done as radically amending the program by moving away from a quota program into an important licensing scheme so the sort of the the qualitative differences between the remedy that the president was imposing some non delegation concerns which i think the discourse already had a recently an a and a non presidential opinion concluded that this court was still bound to follow algonquin but i'd like to point that up a little bit on on the taken by the president and a sense of empowerment to the national security what if the president determines later on to take action that's not tied to a sense of impairment a lot of time talking about what i guess i would expect the executive branch to say which is no we don't see very many limits on the authority but i'm trying to figure out how much of that is essentially hypothetical and how much of it is presented here isn't it is it the case that in this situation we have two things namely the nine thousand seven hundred and five the original  pronouncement or proclamation expression he says that we're going to keep an eye on what's going on in the future including with respect to agreements we're going to negotiate and depending on what we negotiat vary depart from it doesn't depart from the rationale of the secretary's report it says the problem is that the eighty percent utilization ratio that length about powers that you think the president would have are not presented here or are they presented here that is we seem to have both a and express an additional proclamation that says i'm i'm putting into place a course of action elements of which will be chosen in the future as circumstances permit or require and nd the factual basis for the commerce report is the very basis on which the in this case it seems that what the president did here is exactly what congress intended the president to do he kindly made a finding of concurrence he timely identified a course of action a strategy for that that basically that imports i'm sorry that the production capacity target capacity utilization level recommended in the report has not been that and was not being met so he did reference the secretary's recommendation  although of course he's not tied in the statute to the secretary's recommendation but but the the of course part is i think what we've been exploring at some length and and how the outer limits do raise questions  about about a statute in which i think you agree with this if the commerce secretary and in his or her report says i don't think there's a threat then the president cannot act right under this p their right so so congress clearly put in place a precondition with various department heads playing a role in making report or making reports to establish procedural  prerequisites that clearly matter and maybe they matter particularly in a context in which the substantive judicial review of an eventual presidential determination has to be extremely limited because of the national security areas as as as we said making it particularly important that the procedural requirements be be adhered to and that does at least then raise the question of where the line is when the president either departs from or doesn't depart from the basis and in the secretary's report but i think think as i understand your point in this case the president didn't depart from the secretary's basis negotiated agreement of some kind between the president no foreign country and under the double little i roman numeral two if that agreement has been entered into and has not carried out or is in effect of eliminating the threat to the national security posed by imports of such articles then the president shall take other actions to adjust the imports of the article and the question and concern i have here is that right here in this provision congress has expressly authorized the president to take further action when his initial action in this particular instance reaching an agreement with a foreign nation has proven to be ineffective in eliminating the threat to national security and the inference or one inference could be given that congress included such an express authorization for the president to take further action in this particular circumstance and that we see no such corresponding express the from congress to the president in the more general determination of the nature and or duration of the action in he didn't succeed to see one should we take away from that why shouldn't we take away from that the idea that congress did not contemplate the president to take subsequent action under his the one authority but instead congress we think that the better inference is that again given the historical context of the machine tools case and the particular problem that congress saw itself solving in one thousand nine hundred and eighty eight which was its perception that the president was letting a national security threat linger and not not timely entering into negotiations or addressing the threat that it makes sense that congress would provide specific instructions to the president in that circumstance and to read subsection c three a in the way that the trial court did which is as the only way for the president under the statute to be able to modify actions actually leads to an absurd result in that they would it would mean that the president can take action five years after an agreement is entered into if if it if those measures prove an effective make the president is  authorized to for example impose a tariff but the president would be precluded from doing what he did here which is identify a different remedy a tariff and then making an adjustment that tara five months after the original proclamation and there's no reason why nothing of the legislative history nothing in the historical understanding of the statute that should lead the court to that that conclusion if it's not required by the statute and it is not the ther action are you saying that that wasn't a necessary provision there that if you had pulled that out of the statute the president would have had that same authority anyway yes we believe as the president concludes that those agreements haven't had the effect the intended effect and so therefore the president can take additional further actions what i'm asking is if you pull that out of the statute in your view with the president nevertheless under the statute have that authority to take those kinds of subsequent for their actions yes your honor i think that that would be encompassed within th hogan thank you so much for indulging us we had a lot of questions then and we appreciate your responses i'm going to go ahead a preserve your four minutes of rebuttal time expeditiously today and look forward to your questions i would like to pick up where the government left off on the discussion of the government's continuing position that they have continuing authority or then somehow the president has the ability to take a single comprehensive action which last forever long as he feels is necessary through remedy a perceived national eight for the specific purpose of putting strict timelines on presidential action it seems to me there is at the same words about time limits and one hundred and eighty eight to me radically different things one is we really want the president to act and you know within some time period and not ignore the obligation and then another is we're setting a time limit that sets an outer limit on the time to act so that once that time passes the preexisting power disappears what evidence is there that congress had a concern that was trying to of no power after that time limit i would say the power is time limited unless the president goes back and gets a refresh or obtains a refreshment on any of them let me just try to try to focus  put aside what is obviously the most important or at least the st thing which is what message you would get out of the current words of the statute really put aside that for a minute what evidence is there that congress was trying to do the thing that you said that you say it did which is to close the window on presidential action after the after certain periods so beyond the plain language of the statute which would indicate that there is a specific limitation on the nature and duration of the action taken that's in the statute you also have in the legislative history where the congress actually considered giving the president more leeway to extend out the time period for which she would act and they rejected that in the legislative history they came back and said look mr president we want you to get the report make a decision within ninety days and implement the action that you're going to take with respect to that report within one hundred and five days ok i don't i don't i don't have the that material and frankly but at least as you just described it it seems to me it wholly fails to make that the crucial distinction you're making where did congress say if you don't act by a certain time we yank your power to act president has actually gone back and gotten supplemental reports from the commerce secretary in order to achieve the objective and i take you back to present president ford's modification of proclamation three thousand two hundred and seventy nine and i don't want anything on the judge  am i to i'm really interested in hearing and a direct answer to judge trying to question and let me repeat it it's it's where is there any actions outside of that time limit or there really isn't anything in the legislative history i would have to agree with your honor's out there is nothing in the legislative history that however i would also say that is interpreted that those amendments don't in any way constrain the president's ability to act subsequently what is the purpose of nine hundred and eighty eight dollars amendments in terms of putting guardrails on presidential action in the future where are we going to take the analysis because if we go there are we then saying the president once he has the authority and takes that initial action within the timeframe he can take whatever action he wants in the future at what gave the president the authority to do subsequent actions years after the initial proclamation and that is the whether the statute reads but i also would take the the court to look at what actually has been going on handfuls of modifications of the petroleum yes there were actually any one of those yes there were and how many times did the president go back to the secretary for and invest i know of at least the one time that the president went back and i think nine right that's true you're right i will also say there was one case where the president's change in action was was challenged by the bye bye who was the american gasoline refiners association and a district court it is you know it is not insurmountable burden to require that the president return to the secretary and obtain a new report prior to taking action under section two hundred and thirty two dollars this is a legal opinion issued by the government to the president's office were they in one thousand needed to actually indicated that they would a new report or were fresh reports going back to the president to support a roof new or different actions being taken in connection with the petroleum actions being taken  reagan it would have president reagan at that point ok can i ask you about your understanding of the restriction on the president's authority as i understand it you read the statute as giving the president ninety days to take action and he must take action but then after that ninety days if the president wants to take any further action president always has the ability to rescind a proclamation or an executive order and of course we're seeing a lot of that lately with press that i thought you just said to me that for the president to be ever take any further action of any kind outside the ninety day window he has to go is a modification or a supplemental action taken not a simple rejection or rescinding of a proclamation or executive order it's for the distinction i think a president within the statutory confines has always had the authority to remove or rescind a proclamation by a prior president that that exists but i think there is a difference between that and giving the president basically unfettered authority to apply a statute for as long as he he has to do it for the specific statutory basis which is admit it made italy quite broad national security which goes beyond in fact defense needs under the statutory definition and it has to be  specifically responsive to a threat that imports make a national security not just using imports for some other national security purpose in the u s relations with that particular country security correct that is correct that is the that is what the president espoused when he put the fifty percent tariffs on i might add there the president removed those tariffs the following august of two thousand and one team and drop them back to twenty five percent that would be outside of that already to do that yes that would be outside his prescribed authority without having gone back going back to obtain a refresh of the commerce department reports to to support the actions being taken and i guess what i'm saying is the fault of the president's authority under section two hundred and thirty two dollars is derived from the commerce the secretaries report it's in that report that a national security threat is identified and recommendations are made to the president once that happens the president does have authority to either follow those recommendations change them alter them to fit what he thinks is the proper approach to go forward but once he commits to that action then there has to be some  the secretary's report which said we need to eighty percent domestic steel industry utilization right and then now in this particular instance the president discovers ok i agree that's what we  and this is the tariff i'm going to apply and then half a year a year later he learns wait a nd we only got a very modest step increase in the utilization rate of the domestic steel plants and so therefore we haven't met the agreed upon objectives articulated in the secretary's report so we just have to go higher with at least the report actually says because the report indicates that you know the national security threat or steel imports writ large right from around the world coming into the united states and creating a threat to u s domestic production recommended measures were put in place rather a global quota a global tariff or a tariff of much higher proportions on some twelve or thirteen countries the president chose a slightly higher tariff on the global stage but also agreed at the same time that undertake the clause in the statute which allows him to negotiate an agreement with certain countries which he did did with mexico and canada and south korea result when we went over the canadian and mexican agreements russia right so the choice of kind of the next biggest importer would be russia or turkey that would be correct if we were to go back and look at the i understand there were a lot of actions taken by the president these of the different countries that were spurred by the secretary report here on steel in your view which that's because those negotiations occurred inside the one hundred and ninety day period correct yes subsequent actions i don't believe so but i couldn't swear to it because i obviously we are focused on this this case this particular case with turkey i'm not challenging other actions that he's taken we're only challenging with respect to turkey i understand i'm i'm just trying to at the same but i don't think there was are as i don't recall i don't recall there was another action outside but i would have to go back and take a long hard look at the history of the record on that one is investigation from the secretary or to requests for it is not the same as whether the statute requires it or whether the president is power to take any kind of action whether the adjustment of the rate of tariffs whether that to congress under the constitution so what what's your response to be the delegation issue here if we ship your argument time frames for concurrence and implementation and those guardrails served their purpose here because the president did act timely to concur and implemented action within the timeframe set for the statute set for probably probably not for the reason that we described in our in our brief which is a slightly different principle but but simply that there's not any evidence that congress intended for the president to to lose his authority if he's a later congress intended that the mandatory job be done and that job is to protect national security so much in the same way as as the supreme court has read that the term shall need something more than the term shall in order to cut off power to act we believe that that principle applies here how do we how do we know that the president is acting on behalf of the national  must be an investigation congress has not prohibited the president from meeting with his advisors obtaining new information on an informal or confidential basis that can inform the president adjustment of the remedy that he selects the remedy that he selects is entirely within within his discretion the west virginia state comp constitution which embodied a principle of equal taxation our our entire class our entire import scheme is based on the on the principle that products from different countries can be and are routinely treated differently so we think that's a critical distinction and a critical care that the core of a natural trade reached and the equal protection