United States Court of Appeals 

for the Federal Circuit ______________________ 

SILFAB SOLAR, INC., HELIENE, INC., CANADIAN 

SOLAR (USA), INC., CANADIAN SOLAR 

SOLUTIONS, INC.,

Plaintiffs-Appellants

v.

UNITED STATES, UNITED STATES CUSTOMS 

AND BORDER PROTECTION, UNITED STATES 

INTERNATIONAL TRADE COMMISSION, 

CHAIRMAN RHONDA K. SCHMIDTLEIN, 

COMMISSIONER KEVIN K. MCALEENAN, OFFICE 

OF THE U.S. TRADE REPRESENTATIVE, U.S. 

TRADE REPRESENTATIVE ROBERT E. 

LIGHTHIZER, SOLARWORLD AMERICAS, INC.,

Defendants-Appellees

SUNIVA, INC.,

Defendant

______________________ 

2018-1718

______________________ 

Appeal from the United States Court of International 

Trade in No. 1:18-cv-00023-TCS, Chief Judge Timothy C. 

Stanceu.

______________________ 

Decided: June 15, 2018

______________________ 
2 SILFAB SOLAR, INC. v. UNITED STATES

 JONATHAN THOMAS STOEL, Hogan Lovells US LLP, 

Washington, DC, argued for plaintiffs-appellants. Also 

represented by CRAIG ANDERSON LEWIS, MITCHELL REICH,

ROBERT B. WOLINSKY. 

 JEANNE DAVIDSON, Commercial Litigation Branch, 

Civil Division, United States Department of Justice, 

Washington, DC, argued for defendants-appellees United 

States, United States Customs and Border Protection, 

Kevin K. McAleenan, Office of the U.S. Trade Representative, Robert E. Lighthizer. Also represented by CHAD A.

READLER, TARA K. HOGAN, JOSHUA E. KURLAND, STEPHEN 

CARL TOSINI. 

 JOHN DAVID HENDERSON, Office of the General Counsel, United States International Trade Commission, 

Washington, DC, argued for defendants-appellees United 

States International Trade Commission, Rhonda K. 

Schmidtlein. Also represented by DOMINIC L. BIANCHI,

ANDREA C. CASSON. 

 TIMOTHY C. BRIGHTBILL, Wiley Rein, LLP, Washington, DC, for defendant-appellee SolarWorld Americas, Inc. 

Also represented by TESSA V. CAPELOTO, LAURA ELSABAAWI, USHA NEELAKANTAN, MAUREEN E. THORSON. 

 DANIEL L. PORTER, Curtis, Mallet-Prevost, Colt & 

Mosle LLP, Washington, DC, for amicus curiae Government of Canada. Also represented by CHRISTOPHER A.

DUNN, JAMES P. DURLING. 

______________________ 

Before DYK, MOORE, and REYNA, Circuit Judges.

DYK, Circuit Judge. 

 Silfab Solar Inc., Heliene Inc., Canadian Solar (USA) 

Inc., and Canadian Solar Solutions Inc. (“appellants”)
SILFAB SOLAR, INC. v. UNITED STATES 3

sought a preliminary injunction to bar the enforcement of 

presidentially imposed tariffs on solar products. The 

Court of International Trade (“CIT”) denied the injunction. We affirm. We conclude that the President’s actions 

here were lawful and that accordingly, appellants have 

not established a probability of success on the merits as 

required for a preliminary injunction. 

BACKGROUND

I 

Section 201 of the Trade Act of 1974 is commonly 

known as the “escape clause” and authorizes the President to impose tariffs under prescribed conditions. Section 

201 provides that if the International Trade Commission 

(“ITC” or “the Commission”) determines that

an article is being imported into the United States 

in such increased quantities as to be a substantial 

cause of serious injury, or the threat thereof, to 

the domestic industry producing an article like or 

directly competitive with the imported article, the 

President, in accordance with this part, shall take 

all appropriate and feasible action within his 

power which the President determines will facilitate efforts by the domestic industry to make a 

positive adjustment to import competition and 

provide greater economic and social benefits than 

costs.

19 U.S.C. § 2251(a) (emphases added). Such actions are 

typically referred to as “safeguard measures.” Section 

2253(a) provides the same authorization that

[a]fter receiving a report . . . containing an affirmative finding regarding serious injury, or the 

threat thereof, to a domestic industry, the President shall take all appropriate and feasible action 

within his power which the President determines

will facilitate efforts by the domestic industry to 
4 SILFAB SOLAR, INC. v. UNITED STATES

make a positive adjustment to import competition 

and provide greater economic and social benefits 

than costs.

19 U.S.C. § 2253(a) (emphases added).

In May 2017, a United States manufacturer of solar 

products, Suniva, Inc., filed a petition with the ITC, 

requesting that the President undertake measures to 

protect U.S. solar manufacturers against foreign imports.

The goods at issue in this case are crystalline silicon 

photovoltaic (CSPV) cells, manufactured and sold either 

as standalone cells or as functional modules. In accordance with Section 2252(b)(1)(A), the ITC conducted an 

investigation “to determine whether an article is being 

imported into the United States in such increased quantities as to be a substantial cause of serious injury, or the 

threat thereof, to the domestic industry producing an 

article like or directly competitive with the imported 

article.” 19 U.S.C. § 2252(b)(1)(A). On November 17, 2017,

the ITC issued a report, in which it made an affirmative 

serious injury determination under 19 U.S.C. § 2252(b). 

The ITC determined that solar products were “being 

imported into the United States in such increased quantities as to be a substantial cause of serious injury to the 

domestic industry producing an article like or directly 

competitive with the imported article.” J.A. 92. 

When making the determination, there were only four 

Commissioners serving on the ITC. While the four Commissioners were united in their affirmative finding of 

serious injury, they divided into three groups with respect 

to relief. Vice Chairman Johanson and Commissioner 

Williamson recommended a tariff of 30% on imports in 

excess of 1 gigawatt for the first year. Similarly, Chairman Schmidtlein recommended both tariffs and quotas 

under which (1) cells that exceed the 0.5 gigawatts volume level would be subject to a 30% tariff, (2) modules 

would be subject to 35% tariff, and (3) a tariff of 10% ad 
SILFAB SOLAR, INC. v. UNITED STATES 5

valorem to be instituted on imports of up to 0.5 gigawatts. 

Commissioner Broadbent recommended a quantitative

restriction on cells and modules. Since no recommendation received the assent of “a majority of the commissioners voting” or of “not less than three commissioners,” none 

was an official Commission recommendation under 19 

U.S.C. § 1330(d)(2).

After determining that a serious injury was occurring, 

the ITC reported specifically on imports from Canada.

This appeal only involves solar imports from Canada, and 

not Mexico. The NAFTA Implementation Act requires 

that 

the International Trade Commission shall also 

find (and report to the President at the time such 

injury determination is submitted to the President) whether (1) imports of the article from a 

NAFTA country, considered individually, account 

for a substantial share of total imports; and 

(2) imports of the article from a NAFTA country, 

considered individually or, in exceptional circumstances, imports from NAFTA countries considered collectively, contribute importantly to the 

serious injury, or threat thereof, caused by imports.

Pub. L. No. 103-182, 107 Stat. 2057 (1993) (codified at 19 

U.S.C. § 3371) (emphases added). The ITC explained in its 

finding on “substantial share” that Canada contributed 

only roughly 2% of the relevant solar imports during the 

applicable period. The industry in Canada was not among 

the top five suppliers of imports of CSPV products during 

the relevant time period and, on average, was the ninthlargest source of solar products. The ITC also pointed out 

that imports from Canada declined between 2015 and 

2016, even though global imports continued to increase. A 

3-1 majority of the ITC concluded that Canadian imports

did not account for a “substantial share” of solar imports. 
6 SILFAB SOLAR, INC. v. UNITED STATES

It further found that Canadian imports did not “contribute importantly” to the serious injury, an issue not pertinent to this appeal. 

While Chairman Schmidtlein recommended that the 

President should not exempt Canadian goods from the 

safeguard, given their high rate of growth, the other 

Commissioners recommended excluding Canadian imports. These Commissioners noted that if a surge of 

imports from Canada took place in the future, the domestic industry had options to pursue relief under the 

NAFTA import-surge mechanism, 19 U.S.C. § 3372(c). 

Section 3372(c)(1) provides that if the

President . . . excludes imports from a NAFTA 

country or countries from action . . . but thereafter 

determines that a surge in imports from that 

country or countries is undermining the effectiveness of the action—(A) the President may take 

appropriate action . . . to include those imports in 

the action. 

II

After the ITC makes an affirmative injury determination under Section 2252(b), as noted earlier, the President 

“shall take all appropriate and feasible action within his 

power which the President determines will facilitate 

efforts by the domestic industry to make a positive adjustment to import competition and provide greater 

economic and social benefits than costs.” 19 U.S.C. 

§ 2253(a)(1)(A). When determining what action to take, 

the statute directs the President to “take into account” ten 

factors, ranging from “the recommendation and report of 

the Commission,” to broader considerations such as the 

national economic interest. 19 U.S.C. § 2253(a)(2).

After the ITC made its report, the Trade Policy Staff 

Committee (“TPSC”) was tasked with offering a remedy 

recommendation to the President. 19 U.S.C. 
SILFAB SOLAR, INC. v. UNITED STATES 7

§ 2253(a)(1)(C). On behalf of the TPSC, the Office of the 

United States Trade Representative (“USTR”) issued a 

request for comments and a notice of public hearing about 

the determination of import injury with regard to CSPV 

cells. Request for Comments and Public Hearing About 

the Administration’s Action Following a Determination of 

Import Injury With Regard to Certain Crystalline Silicon 

Photovoltaic Cells, 82 Fed. Reg. 49,469 (Oct. 25, 2017). 

After the hearing, the TPSC provided the President with 

its recommendation concerning appropriate safeguard 

measures. This recommendation is not a public document

and was not supplied to this court. 

On January 23, 2018, President Trump issued Proclamation No. 9693, entitled “To Facilitate Positive Adjustment to Competition From Imports of Certain 

Crystalline Silicon Photovoltaic Cells (Whether or Not 

Partially or Fully Assembled Into Other Products) and for 

Other Purposes.” J.A. 74 (“Proclamation”). The Proclamation announced a four year safeguard, including a 30-

percent tariff on solar products, whether assembled as 

cells or modules. As noted earlier, under the NAFTA 

Statute, the President must determine whether the tariffs 

apply to Canadian imports. The President acknowledged 

that the ITC “made negative findings with respect to 

imports of CSPV products from Canada.” J.A. 74, ¶ 3. 

Notwithstanding this, he determined that “imports of 

CSPV products from . . . Canada . . . account for a substantial share of total imports and contribute importantly 

to the serious injury or threat of serious injury found by 

the ITC.” J.A. 75, ¶ 7. Accordingly, he did not exempt 

Canadian imports. The President’s safeguard action, i.e., 

the tariffs, took effect on February 7, 2018. 

III

On the same day, the plaintiffs, three Canadian manufacturers of solar panels and a U.S. importer of solar 

cells and modules, filed suit in the CIT, seeking a declara-
8 SILFAB SOLAR, INC. v. UNITED STATES

tory judgment that the Proclamation, as applied to them, 

is contrary to law and an injunction barring enforcement 

of the tariffs. Plaintiffs named as defendants the United 

States, U.S. Customs and Border Protection and its acting 

Commissioner, the U.S. International Trade Commission 

and its Chairman, and the Office of the U.S. Trade Representative and the U.S. Trade Representative. DefendantIntervenors Suniva and SolarWorld, Inc., U.S. manufacturers of solar cells and modules, intervened in support of 

the President’s decision.

Plaintiffs submitted declarations detailing an imminent, severe threat of irreparable injury from the solar 

tariffs to their businesses and an expert report containing

economic analysis of the injury. 

IV

On March 5, 2018, the CIT denied the motion for a 

preliminary injunction in a careful and thorough opinion. 

The CIT held that, even if it “presume[d], without deciding” that plaintiffs could demonstrate irreparable harm in 

the absence of an injunction, and that the balance of 

hardships weighed in their favor, plaintiffs would not 

qualify for preliminary relief, because they were not likely 

to succeed on the merits of their claim and the public 

interest did not favor a preliminary injunction. J.A. 7. As 

to the public interest factor, the CIT expressed concern

that the nominal bond requested “could expose the government to the risk of being unable to collect safeguard 

duties owed once the entries are liquidated should it 

ultimately prevail in this litigation.” J.A. 40. Although

plaintiffs asked the court to stay proceedings and grant 

an injunction pending appeal, the CIT denied both motions. 
SILFAB SOLAR, INC. v. UNITED STATES 9

Appellants appealed the denial of the injunction to 

our court.1 At this court, they sought, and we denied, a 

motion for injunction pending appeal. The CIT had jurisdiction pursuant to 28 U.S.C. § 1581(i). We have jurisdiction pursuant to 28 U.S.C. § 1292(c)(1). “The governing 

standard of review on appeal of a grant or denial of a 

preliminary injunction is abuse of discretion.” Am. Signature, Inc. v. United States, 598 F.3d 816, 823 (Fed. Cir. 

2010) (citing Titan Tire Corp. v. Case New Holland, Inc.,

566 F.3d 1372, 1375 (Fed. Cir. 2009)).

DISCUSSION

I 

A preliminary injunction “is an extraordinary remedy.” Winter v. Nat. Res. Def. Council, 555 U.S. 7, 24 (2008) 

(citing Munaf v. Geren, 553 U.S. 674, 689-90 (2008)). The 

moving party has to show the following factors in order to 

obtain a preliminary injunction: (1) likelihood of success 

on the merits, (2) irreparable harm absent immediate 

relief, (3) the balance of interests weighing in favor of 

relief, and (4) that the injunction serves the public interest. Id. at 20; accord Wind Tower Trade Coal. v. United 

States, 741 F.3d 89, 95 (Fed. Cir. 2014). 

On appeal, the appellants focus primarily on the first 

factor – likelihood of success on the merits. In Winter, the

Supreme Court made clear that “[i]ssuing a preliminary 

injunction based only on a possibility of irreparable harm 

is inconsistent with our characterization of injunctive 

relief.” Winter, 555 U.S. at 22. Since Winter, we have held 

that the party seeking the injunction must be able to

1 At the CIT, plaintiffs also argued for a preliminary injunction on the grounds that the presidential 

action violated quantitative restriction limitations under 

19 U.S.C. § 3372(d). Plaintiffs do not raise this issue on 

appeal.

 
10 SILFAB SOLAR, INC. v. UNITED STATES

“demonstrate that it has at least a fair chance of success 

on the merits for a preliminary injunction to be appropriate.” Wind Tower, 741 F.3d at 96 (citing Qingdao Taifa 

Grp. Co. v. United States, 581 F.3d 1375, 1381 (Fed. Cir. 

2009)). 

Appellants rely on past cases where we have held that 

the probability of success factor can be decided on a 

sliding scale, and a lesser showing of likelihood of success 

is acceptable, where there is a significant showing of 

irreparable injury. See, e.g., Belgium v. United States, 452 

F.3d 1289, 1292-93 (Fed. Cir. 2006). Appellants argue 

that they have shown a strong likelihood of irreparable 

injury and that, accordingly, only a reduced showing of 

probability of success should be required. Even accepting 

(without deciding) the theory that our sliding-scale jurisprudence remains good law after Winter, we conclude that 

appellants have not shown any probability of success on 

the merits, so that a preliminary injunction would not be

appropriate even under the most lenient sliding-scale

standard.

II

Under Corus and other decisions of this court, there 

are limited circumstances when a presidential action may 

be set aside if the President acts beyond his statutory 

authority, but such relief is only rarely available. Corus 

Grp. PLC v. Int’l. Trade Comm’n, 352 F.3d 1351, 1356 

(Fed. Cir. 2003) (highlighting that review is available to 

determine whether the President “clear[ly] misconstru[ed]” his statutory authority); see also Motion Sys.

Corp. v. Bush, 437 F.3d 1356, 1361 (Fed. Cir. 2006) (en 

banc) (explaining that courts may consider whether “the 

President has violated an explicit statutory mandate”); 

Maple Leaf Fish Co. v. United States, 762 F.2d 86, 89 

(Fed. Cir. 1985) (holding that “[f]or a court to interpose, 

there has to be a clear misconstruction of the governing 

statute, a significant procedural violation, or action 
SILFAB SOLAR, INC. v. UNITED STATES 11

outside delegated authority”). We conclude that such 

relief is not available in this case and reject appellants’

various arguments to the contrary. 

First, appellants argue that the President had no 

power to act because the ITC made no recommendation as 

to remedy. The simple answer to this claim is that the

President’s authority to act is not conditioned on the 

existence of such a recommendation. It is conditioned only 

on an ITC’s finding of serious injury, or the threat thereof. 

19 U.S.C. § 2253 provides that

[a]fter receiving a report . . . containing an affirmative finding regarding serious injury, or the 

threat thereof, to a domestic industry, the President shall take all appropriate and feasible action 

within his power which the President determines 

will facilitate efforts by the domestic industry to 

make a positive adjustment to import competition 

and provide greater economic and social benefits 

than costs. 

19 U.S.C. § 2253(a) (emphasis added). 

In Corus, we held that the President lacks authority 

under Section 2253 to act, unless the ITC makes a determination of serious injury or threat thereof. 352 F.3d at 

1354. However, nothing in the statute or in Corus suggests that the existence of an ITC recommendation as to 

remedy is a condition of the President’s power to act. 

Indeed, the statute makes clear that the only condition 

necessary for the President to take action is the affirmative finding regarding serious injury or the threat thereof. 

As the CIT pointed out, it is difficult to believe that Congress would have wanted an injury to go unremedied, 

simply because the ITC’s Commissioners could not agree 

on a particular remedy. 

Appellants argue that if the President is allowed to 

act without an ITC recommendation as to remedy, Con-
12 SILFAB SOLAR, INC. v. UNITED STATES

gress will not be able to exercise its fast track authority. 

The statute provides that if “the action taken . . . differs 

from the action recommended by the Commission under 

section 2252(e)(1)” a fast track congressional override is 

available, allowing Congress to institute “the action 

recommended by the Commission . . . upon the enactment 

of a joint resolution . . . within the 90-day period beginning on the date on which the [recommendation] is 

transmitted to the Congress.” 19 U.S.C. § 2253(c). We 

express no opinion about whether, in the absence of a

remedy recommendation, Congress has authority to 

invoke the fast track provision of Section 2253(c). The 

question of whether the President’s action here “differs 

from the action recommended by the Commission” when

the ITC makes no recommendation is a matter for Congress, and not this court. 

Second, appellants argue that the statute gives the 

President authority only if he acts under the statute and 

that the President cannot do so if the ITC has failed to 

comply with the statute. Section 2252(f)(1) states that 

“[t]he Commission shall submit to the President a report 

on each investigation.” While the ITC did not make the 

required remedy recommendation, we have rejected the

contention that the failure of the ITC to comply with its 

statutory obligations invalidates presidential action. In 

Michael Simon Design, Inc. v. United States, 609 F.3d 

1335, 1342-43 (Fed. Cir. 2010), as here, the plaintiff 

claimed that the President’s action was unlawful because 

the ITC’s recommendation failed to comport with the 

applicable statute. We held that an allegedly unlawful 

ITC recommendation to the President did not invalidate 

the President’s determination. We explained that a “recommendation does not cease to be made ‘under’ [the 

relevant] section . . . simply because the recommendation 

is assertedly contrary to the substantive requirements of 

that provision.” Id. at 1341. This was the case, because, as 

in Dalton v. Specter, 511 U.S. 462, 476 (1994), “[n]othing 
SILFAB SOLAR, INC. v. UNITED STATES 13

in [the relevant statute] requires the President to determine whether the Secretary or Commission committed 

any procedural violations in making their recommendations, nor does [the relevant statute] prohibit the President from approving recommendations that are 

procedurally flawed.”

Third, appellants argue that the President did not 

make the required report to Congress. Section 2253(b)(1) 

requires that 

[o]n the day the President takes action . . . the 

President shall transmit to Congress a document 

describing the action and the reasons for taking 

the action. If the action taken by the President 

differs from the action required to be recommended by the Commission under section 2252(e)(1) of 

this title, the President shall state in detail the 

reasons for the difference. 

19 U.S.C. § 2253(b)(1) (emphasis added). In fact, it appears that the President did make a report to Congress. 

J.A. 829-51. But even if the President had not, or, if the 

report was in some way deficient, that would not be a 

ground for setting aside the President’s action. Under the 

statute, the making of the required report is not a condition precedent to valid presidential action, and the failure 

to make a required report, even if it occurred, is not 

grounds to set aside the presidential action. In Michael 

Simon, after “the appellants argue[d] that it was improper for the President to adopt modifications that were not 

rate neutral,” we held that “section 3006(a) does not make 

rate neutrality a condition of the President’s decision.” 

609 F.3d at 1342. Therefore, “any claim that the Presidential proclamation does not produce rate neutrality is not 

subject to judicial review.” Id. at 1342-43. This was the 

case, because “the statute [at issue] contains no language 

that expressly mandates substantial rate neutrality as a 

prerequisite to the President’s authority to proclaim 
14 SILFAB SOLAR, INC. v. UNITED STATES

HTSUS modifications.” Id. at 1343. Similarly, the making 

of a report is not a precondition for presidential action in 

this case. 

Fourth, appellants contend that the President did not 

consider the ITC report as required by the statute. The 

statute requires that the President “shall take into account – (A) the recommendation and report of the Commission.” 19 U.S.C. § 2253(a)(2). The Proclamation states 

that the President considered the report. J.A. 74 ¶¶ 2-6 

(stating that the President made his decision “[a]fter 

taking into account the considerations specified in section 

203(a)(2) of the Trade Act . . . [including] the ITC Report”). We have no authority to determine whether the 

President’s statement is factually accurate. See Maple 

Leaf, 762 F.2d at 89. To the extent that appellants argue 

that the President did not take account of the recommendation of the ITC because there was none, this is merely a 

reprisal of the argument that the President has no authority to act without an ITC recommendation. We addressed and rejected this above. 

Finally, appellants argue that the President’s action 

violated the NAFTA Implementation Act, specifically 19 

U.S.C. § 3372. Section 3372(a) instructs that, “[i]n determining whether to take action under . . . the Trade Act of 

1974 . . . with respect to imports from a NAFTA country, 

the President shall determine whether” a NAFTA country’s exports to the United States “account for a substantial share of total imports” and whether those imports 

“contribute importantly to the serious injury . . . found by 

the International Trade Commission.” Imports from a 

NAFTA country will be excluded from the action “if the 

President makes a negative determination” regarding 

either substantial share or contribute importantly “with 

respect to imports from such country.” 19 U.S.C. 

§ 3372(b). The President thus must exempt Canada if he 
SILFAB SOLAR, INC. v. UNITED STATES 15

“determines” that Canadian imports do not constitute a 

“substantial share” of total imports.2 As set forth in the 

Proclamation, President Trump determined that “imports 

of CSPV products from . . . Canada . . . account for a 

substantial share of total imports.” J.A. 75, ¶ 7. 

Appellants argue that there is no support for such a 

determination. Appellants point out that the ITC determined that imports from Canada did not constitute a 

“substantial share.” J.A. 159.3 The Proclamation itself 

recognized that the ITC made findings “as to whether 

imports from . . . Canada, considered individually, account 

for a substantial share of total imports and contribute 

importantly to the serious injury, or threat thereof, 

caused by imports. The ITC . . . made negative findings 

2 Subsections 3372(a)-(b) provide that 

the President shall determine whether – (1) imports from such country, considered individually, 

account for a substantial share of total imports; or

(2) imports from a NAFTA country, considered individually, or in exceptional circumstances imports from NAFTA countries considered 

collectively, contribute importantly to the serious 

injury, or threat thereof, found by the International Trade Commission. . . . [And that] [i]n determining the nature and extent of action to be 

taken under chapter 1 of title II of the Trade Act 

of 1974 [19 U.S.C.A. § 2251 et seq.], the President 

shall exclude from such action imports from a 

NAFTA country if the President makes a negative 

determination under subsection (a)(1) or (2) of this 

section with respect to imports from such country.

3 Appellants do not argue that the President erred 

in his “contribute to injury” finding, the second factor 

required. 

 
16 SILFAB SOLAR, INC. v. UNITED STATES

with respect to imports of CSPV products from Canada.” 

J.A. 74, ¶ 3. Moreover, according to the record, Canadian 

imports seem to account for only roughly 2% of the relevant solar imports during the applicable period. The 

industry in Canada was not among the top five suppliers 

of imports of CSPV products during the relevant time 

period, and on average, Canada was only the ninth largest source of solar products. The NAFTA Implementation 

Act provides that a NAFTA country should “normally” be 

deemed “to account for a substantial share” only if it is 

“among the top 5 suppliers” over “the most recent 3-year 

period.” 19 U.S.C. § 3371(b)(1). 

The presidential action cannot be set aside because it 

conflicts with the ITC’s conclusion. While the ITC made a 

negative finding as to substantial share with respect to 

solar products from Canada, these findings in no way bind 

the President. Indeed, the ITC has a duty only to find and 

report regarding determinations of substantial share, and 

the President is free to reach a different decision regarding those determinations.

Nor do we have authority to review the President’s 

substantial share determination. The question regarding 

substantial share is factual, and we have no authority to 

review the President’s factual determinations. “The 

President’s findings of fact and the motivations for his 

action are not subject to review.” Maple Leaf, 762 F.2d at 

89 (citation omitted); see also United States v. George S. 

Bush & Co., 310 U.S. 371, 379-80 (1940) (“[T]he judgment 

of the President . . . on the facts . . . is no more subject to 

judicial review . . . than if Congress itself had exercised 

that judgment.”); Michael Simon, 609 F.3d at 1340 (“The 

language . . . does not implicitly or explicitly limit the 

President’s discretion in a way that would render the 

President’s actions in this case judicially reviewable.”). 

In particular, courts have repeatedly confirmed that, 

where the statute authorizes a Presidential “determina-
SILFAB SOLAR, INC. v. UNITED STATES 17

tion,” the courts have no authority to look behind that 

determination to see if it is supported by the record. See, 

e.g., George S. Bush & Co., 310 U.S. at 379 (finding no 

review when the statute committed the decision to the 

President’s “judgment”); Motion Sys., 437 F.3d at 1359 

(finding no review when the statute authorized the President to “provide import relief . . . unless the President 

determines that provision of such relief is not in the 

national economic interest of the United States”); Maple 

Leaf, 762 F.2d at 87-90 (finding no review of the President’s “determin[ations]” under Sections 2251-53 of Title 

19 of the U.S. Code). Congress could not have intended 

that courts review a presidential determination, based on 

an ITC record, when the President can and does rely on 

information that is neither public, nor part of that record. 

CONCLUSION

The CIT correctly determined that appellants cannot 

demonstrate likelihood of success on the merits, and thus 

we need not consider the other preliminary injunction

factors. If Congress desires to eliminate these tariffs or to 

cabin the President's authority, that is a matter for Congress to address in future legislation, not a matter for this 

court on this appeal.

AFFIRMED