A Presidential Remedy Under Administrative Control—Why Section 337(j) Should be Repealed

INTRODUCTION I. THE LEGISLATIVE HISTORY OF SECTION 337(J) A. Tariff Act of 1922 B. Tariff Act Of 1930 C. Trade Act of 1974 II. LATER DEVELOPMENTS OF PRESIDENTIAL REVIEW POWER A. Certain Stainless Steel Pipe and Tube (1978) B. Certain Multi-Ply Headboxes (1981) C. Certain Molded-In Sandwich Panel Inserts (1982) D. Certain Alkaline Batteries (1984) E. Certain Dynamic Random Access Memories (1987) F. Summarizing the Review Power III. ASSIGNMENT OF THE REVIEW POWER TO THE UNITED STATES TRADE REPRESENTATIVE (2005) CONCLUSION INTRODUCTION On July 26, 2005, President George W. Bush delegated the Review Power under Section 337(j) of the Tariff Act of 1930 to the Office of the United States Trade Representative (USTR). (1) This delegation is a major shift in unfair import trade practices that went largely unnoticed by legal scholars. Tracing its roots to the "elastic tariffs" of the Harding Administration, Section 337(j) has slowly evolved within America's trade legislation as a tool for the President to quickly and decidedly protect American interests from unfair import trade practices. When the statute took on its present form in 1974, Section 337(j) served an exceptional purpose within the unfair import practices realm by matching the unique insights and perspectives of the President in foreign policy matters with an equally stout remedy--"veto" power over United States International Trade Commission's (USITC) determinations. Furthermore, Section 337(j) was paired with Section 337(b)(2), which allows administrative agencies to provide persuasive input in USITC matters, to create two distinct tiers of influence in USITC matters. As such, by delegating the President's powers under Section 337(j) to the USTR, the President has essentially elevated one administrative opinion above the rest--resulting in an administrative level of input being improperly paired with a presidential level of power. This comment investigates the details behind this delegation of power, by reviewing the legislative history of Section 337 in view of the USTR delegation. Specifically, this comment will first discuss the legislative history of Section 337 as it developed through the passage of various acts of Congress. Second, this paper will discuss the subsequent development of the Review Power within the federal court system as it was utilized by the Office of the President. Lastly, this paper will discuss the delegation of Section 337(j) to the USTR, concluding that the power goes against the Legislature's intent and that Section 337(j) should either be returned to the Office of the President, or repealed with the USTR's input being placed under Section 337(b)(2). I. THE LEGISLATIVE HISTORY OF SECTION 337(J) The Commerce Clause of the United States Constitution unambiguously delegates the exclusive power to regulate international trade and commerce to the legislative branch of government. (2) As such, the President may only act in matters of international trade when Congress has specifically provided the President with the authority to do so, and even then, the President can only act within the guidelines provided by the legislative text. (3) This section will review the Acts that helped mold Section 337(j), such as the Tariff Act of 1922, (4) The Tariff Act of 1930, (5) and the Trade Act of 1974. (6) A. Tariff Act of 1922 In his message on December 6, 1921, President Warren G. Harding tasked Congress with finding a way to provide "flexibility and elasticity so that [tariff] rates may be adjusted to meet unusual and changing conditions which can not accurately be anticipated." (7) Following the President's suggestion, the Senate Finance Committee added provisions to the Tariff Act of 1922 known as "elastic tariffs," which authorized the President: A) to modify tariff rates either upwards or downwards within pre-described limits; B) to change the basis for the assessment of ad volorem duties on selected items; C) to impose additional duties on the whole or any part of imports into the United States from any country that discriminates against the United States' overseas commerce; and D) to impose penalty duties or prohibit the importation of particular goods for the purpose of preventing unfair method of competitions in the importation of goods. …