# United States Court of Appeals **for the Federal Circuit**

______________________ SILFAB SOLAR, INC., HELIENE, INC., CANAD IAN SOLAR (USA), INC., C ANADIAN SOLAR SOLUTIONS, INC., Plaintiffs

- Appellants

v.

UNITED STATES, UNITED STATES CUSTOMS AND BORDER PROTECTIO N, UNITED STATES INTERNATIONAL TRADE COMMISSION, CHAIRMAN RHONDA K. SCHMIDTLEI N, COMMISSIONER KEVIN K. MCALEENAN, OFFICE OF THE U.S. TRADE RE PRESENTATIVE, U.S. TRADE REPRES ENTATIVE ROBERT E. LIGHTHIZER, SOLARWOR LD 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 Jud ge Timothy C. Stanceu.

______________________

Decided: June 15 , 2018

______________________SILFAB SOLAR , INC

. v. UNITED STATES 2

J ONATHAN T HOMAS S TOEL , Hogan Lovells US LLP, Washington, DC, arg ued for plaintiffs

- appellants. Also represented by C RAIG A NDERSON L EWIS , M ITCHELL R EICH , R OBERT B. W OLINSKY

.

J EANNE D AVIDSON , 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 Represent ative, Rob ert E. Lighthizer. Also represented by C HAD A. R EADLER , T ARA K. H OGAN , J OSHUA E. K URLAND , S TEPHEN C ARL T OSINI

.

J OHN D AVID H ENDERSON , Office of the General Cou nsel, United States International Trade Commission, Washington, DC, argued for defendants -appellees United States International Trade Comm ission, Rhonda K. Schmidtlein. Also represented by D OMINIC L. B IANCHI , A NDREA C. C ASSON

.

T IMOTHY C. B RIGHTBILL , Wiley Rein, LLP, Washin gton, DC, for defendant

- appellee SolarWorld Americas, Inc. Also represented by T ESSA V. C APELOTO , L AURA E L

S ABAAWI , U SHA N EELAKANTAN , M AUREEN E. T HORSON

.

D ANIEL L. P ORTER , Curtis, Mallet

- Prevost, Colt & Mosle LLP, Washington, DC, for amicus curiae Gover nment of Canada. Also represented by C HRIS TOPHER A. D UNN , J AMES P. D URLING

.

______________________

Before D YK , M OORE , and R EYNA , Circuit Judges.

D YK , Circuit Judge

. Silfab Solar Inc., Heliene Inc

. , Canadian Solar (USA) Inc., and Canadian Solar Solutions Inc. (“ a ppellants”)SILFAB SOLAR , INC

. v. UNITED STATES 3

sought a preliminary i njunction to bar the enforcement of president ially imposed tariffs on solar products

. The Court of International Trade (“CIT”) denied the injun ction. We affirm. We conclude that the Presi dent’s actions here were lawful a nd that accordingly, appellants have not established a probability of success on the merits as required for a preliminary injunction

. B ACKGROUND

I

Section 201 of the Trade Act of 1974 is commonly known as the “escape clause” and authorizes the Pres ident to impose tarif fs 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 inju ry, 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

powe r which the Presiden t determines will facil itate 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) (emphase s added)

. Such actions are typically referred to as “ safe guard measures .” Section 2253(a) provides the same authoriza tion that
[a] fter receiving a report

. . . containing an affir mative finding regarding serious injury, or the threat thereof, to a domestic industry, the Pres ident shall take all appropriate and feasible action within his power which the President determines will facilitate efforts by the domestic industry toSILFAB SOLAR , INC

. v. UNITED STATES 4

make a positive adjustment to import competition and provide greater economic and social benefits than c osts. 19 U.S.C. § 2253(a) (emphase s 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 manufac turers 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 accor dance with Section 2252(b)(1)(A) , t he ITC conducted an investigation “to determine whether an article is being imported into the United States in such increased quant ities 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 im ported 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 S tates in such increased quant ities as to be a substantial cause of serious injury to the domestic industry producing an article like or directly competiti ve with the imported article.” J.A. 92

. When making the determination , there were only four Commission ers serving on the ITC. While the four Co mmissioners were united in their affirmative finding of serious injury, they divided into three groups with respect to relief. Vice Chairman Johanson and Commissioner Williams on recommended a tariff of 30% on import s in excess of 1 gigawatt for the first year

. Similarly, Chai rman Schmidtlein recommended both tariffs and quotas under which (1) cells that exceed the 0.5 gigawatts vo lume level would be subject to a 30% tariff, (2) modules would be subject to 35% tariff, and (3) a tariff of 10% adSILFAB 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 recommend ation received the assent of “a majority of the commissio ners voti ng” or of “not less than three commissioners,” none

was an official Commission recom mendation under 19 U.S.C. § 1330(d)(2).
After determining that a serious injury was occurring, the ITC reported spec ifically on imports from Canada. This appeal only involves solar imports from Canada, and not Mexico. T he 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 Pres ident) 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 circu mstances, imports from NAFTA countries consi dered collectively, contribute importantly to the serious injury, or threat thereof, caused by i mports.

Pub. L. No. 103

- 182, 107 Stat. 2057 (1993) (codified at 19 U.S.C. § 3371) (emphase s added). T he ITC explained in its finding on “substantial share” that Canada contributed only roughly 2% of the relevant solar imports during the applicable period. T he industry in Canada was not among the top five suppliers of imports of CSPV products during the r elevant time p eriod and

, on average, was the ninth

largest 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 n ot account for a “substantial share” of solar imports

.SILFAB SOLAR , INC

. v. UNITED STATES 6

It further found that Canadian imports did not “contri but e importantly” to the serious injury, an issue not pert inent to this appeal

. While Chairman Schmidtlein recommended that the President should no t exempt Canadian goods from the safeguard, g iven their high rate of growth , the other Commissioners recommended excluding Canadian i mports . These Commissioners noted that if a surge of imports from Canada took place in the future, the dome stic 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 t he effectiv eness 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 dete rmin ation 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 a djustment to import competition and provide greater

ec onomic 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, t he 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 Ad ministration’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 appro priate safeguard measures. This recommen dation is not a public document and was not supp lied to this c ourt. On January 23, 2018, President Trump issued Pro clamation No. 9693, entitled “To Facilitate Positive A djustment to Competition From Imports of Cert ain Crystalline Silicon Photovoltaic Cells (Whether or Not Partially or Fully Assembled Into Other Prod ucts) and for Other Purposes.” J.A

. 74 (“Proc lamation”) . The Proclam ation announced a four year safeguard, including a 30

- percent tariff on solar product s, 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 impor ts of CSPV products from Canada. ” J .A. 74, ¶ 3

. Notwithstanding this

, he determined that “imports of CSPV products from . . . Canada . . . account for a su bstantial share of total imports and contribute importantly to the serious injury or threat of ser ious injury f ound 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 Febr uary 7, 2018.

III

On the same day, the p laintiffs , three Canadian ma nufacturers of solar panels and a U.S. importer of solar cells and modules, filed suit in the CIT, seeking a declar a-SILFAB SOLAR , INC

. v. UNITED STATES 8

tory judgment that the Proclamation, as applied to them

, is contrary to law and an injunction barring enforcement of the tariffs. Plaintiffs named as de fendants the United St ates, U.S. Customs and Border Protec tion and its acting Commissioner, the U.S. International Trade Commission and its Chairman, and the Office of the U.S. Trade Repr esentative and the U.S. Trade Representative. Defendant

Interven ors Suniva and SolarWorld , Inc., U.S. manufa cturers of solar cells and modules

, intervened in support of the President’s decision.

Plaintiffs submitted declarations detailing an imm inent, severe threat of irreparable injury from the solar tariffs to their businesses and an expert report containing economic analysis of the injur y

. IV
On March 5, 2018, the CIT denied the motion for a preliminary injunction in a careful and thorough opinion

. T he CIT held that, even if it “presu me[d], without deciding ” that p laintiffs could d emonstrate irreparable harm in the absence of an injunction, and that the balance of hard ships weighed in their favor , plaintiffs would not qualify for prelimina ry relief, because they were not likely
to succe ed 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, t he CIT expressed concern that the nominal bond requested “could expose the go vernment to the risk of being unable to collect safeguard duties owed once the entries are liquidated should it ultimately pre vail in this litigation.” J.A. 40

. Although plaintiffs asked the c ourt to stay proceedings and grant an injunc tion pending appeal, the CIT denied both m otions.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 juri sdiction pursuant to 28 U.S.C. § 1581(i). We have jurisdi ctio n 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. Sign ature, 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)).

D ISCUSSION

I
A preliminary injunction “is an extraordinary rem edy.” Winter v. Nat. Re s. 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) likelihoo d of success on the merits, (2) irreparab le harm absent immediate relief, (3) the balance of intere sts weighing in favor of relief, and (4) that the injunction serves the public inte rest. Id . at 20; ac cord 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 inju nction 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 t he party seeking the injunction must be able to

1 At the CIT, plaintiffs also argued for a prelim inary 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.SILFAB SOLAR , INC

. v. UNITED STATES 10

“ demonstrate that it has at least a fair chance of success on the merits for a preliminary injunction to be appropr iate.” 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 p ast cases where we h ave he ld t h at 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 the ory that our sliding

- scale juri sprudence 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 slid ing

- scale standard.

II

Under Corus and other decisions of this court, there

are limited circum stances when a p resi dential 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] misco nstru[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 misco nstruction of the governing statute, a significant procedural violation, or actionSILFAB SOLAR , INC

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outside delegated authority”). We conclude that such relie f is not available in this case and reject appellants’ various arguments to the contrary

. First, appellants argue that th e 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 on ly

on an ITC’s find ing of serious injury, or the threat thereof. 19 U.S.C. § 2253 provides that
[a]fter receiving a report

. . . containing an affir mative finding regarding serious injury, or the threat thereof, to a domestic industry, the Pres ident shall ta ke 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 dete rmination of serious injury or threat thereof

. 352 F.3d at 1354. However, nothing in the statute or in Corus su ggest s 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 affirm ative finding regarding serio us injur y or the threat thereof. As the CIT pointed out, it is difficult to believe that Co ngress would have wanted an injury to go unremedied, simply be cause th e 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, Co n-SILFAB SOLAR , INC

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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 c ongressional 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 begi nning 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 Co ngress , and not this court.
Second, a ppellants argue that the statute gives the President authori ty only if he acts under the statu te 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 t he ITC did not make the required remedy recommendation , w e have re jected the contention that the failure of the ITC to comply with its statutory obligations invalidate s p residential action. I n Michael Simon Design, Inc

. v. United States

, 609 F.3d 1335, 1342

- 43 (Fed. Cir. 2010), a s here, the plaintiff claimed that the President’s action was unlaw ful because the ITC’s recommendation failed to comport with the applicable statute. W e held that an allegedly unlawful ITC recommendation to the President did not invalidate the President’s deter mination. W e explained that a “re commendation 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]othingSILFAB SOLAR , INC

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in [the relevant statute] requires the President to dete rmine whether the Secretary or Commission committed any procedural violations in making their recommend ations, nor does [the rele vant statute] prohibit the Pres ident from approving recommendations that are procedurally flawed.”

Third , appellant s 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 a ction

. . . 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 recommen ded 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 a ppears 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 cond ition precedent to valid p residen tial action, and the failure to make a require d report, even if it occurred, i s not grounds to set aside the p residential action. In Michael Simon, after “the appellants argue[d] that it was impro per for the President to adopt modifications that were not rate neutral,” we held that “section 3006(a) do es not make rate neutrality a condition of the Presiden t’ s decision.” 609 F.3d at 1342 . Therefore, “any claim that the Preside ntial 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 proclaimSILFAB SOLAR , INC

. v. UNITED STATES 14

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 Pres ident “shall take into a ccount – (A) the recommendation and report of the Co mmission.” 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 R eport ”). 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 recomme ndatio n of th e ITC because there was none , this i s merely a reprisal of the argument that the President has no a uthority to act without an ITC recommendation . W e a ddressed 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 dete rmining whether to take action under

. . . the Trade Act of 1974 . . . with respect to imports from a NAFTA country, the President shall determine wheth er” a NAFTA cou ntry’s exports to the United States “account for a substa ntial share of total imports” and whether those imports “contribute importantly to the serious injury . . . found by the International Trade Commission.” Imports from a NAFTA cou ntry w ill 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). T he President thus must exempt Canada if heSILFAB SOLAR , INC

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“determines” that Canadian imports do not constitute a “substantial share” of total imports. 2 As set forth in the P roclamation, President Trump determined that “imports of CSPV pr oducts from . . . Canada . . . account for a substantial share of tota l imports.” J.A. 75

, ¶ 7.
Appellants argue that there is no support for such a determination. Appellant s point out that the ITC dete rmined that imports from Canada did not constitute a “substan tial share.” J.A. 159

. 3 The Proclamation itself

recog nized 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) pr ovide that

the Pre sident shall determine whether – (1) i mports from such country, considered ind ividually, account for a substantial share of t o tal imports; or (2) imports from a NAFTA country, considered i ndividual ly, or in exce p tional circumstances i mports from NAFTA countries considered collec tively, contribute importantly to the ser i ous injury, or threat thereof, found by the Intern ational Trade Commission. . . . [A nd that] [i]n d etermining the nature and e x tent 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 Pres i dent 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 i m ports from such country.

3 Appellants do not argue that the President erred in his “contribute to injury” finding, the second factor

re quired.SILFAB SOLAR , INC

. v. UNITED STATES 16

with respect to imports of CSPV products from Canada. ” J.A. 74, ¶ 3. Moreover, according to the record, Cana dian imports seem to account for only roughly 2% of the rel evant solar impor ts during the applicable period. T he industry in Canad a 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 lar gest 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 p residential 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 regar ding tho se 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. “T he 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 judi cial 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 “determin a-SILFAB SOLAR , INC

. v. UNITED STATES 17

tion,” the c ourts have no authority to look behind that determination to see i f 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 t o the President’s “judgment” ); Motion Sys. , 437 F.3d at 1359 (finding no review when the statute authorized the Pres ide nt 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 Pres ident’s “determin[ations]” under Sections 2251

- 53 of Title 19 of the U.S. Code)

. Congress could not have intended that c ourts 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.

C ONCLUSION

T he CIT correctly determined that appellants cannot demonstrate likelihood o f 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 Co ngress to address in future legislation, not a mat ter for this court on this appeal.

AFFIRMED