[00:00:00] Speaker 04: We have one case this morning, number 18-1718, Sylvain Sauer, Inc. [00:00:06] Speaker 04: v. United States, Mr. Stahl. [00:00:28] Speaker 05: May it please the Court, [00:00:29] Speaker 05: This case is about the survival of three small Canadian manufacturers and importers of solar modules who are suffering job losses and lost business opportunities and who are threatened with bankruptcy due to the president's unlawful safeguard tariff. [00:00:43] Speaker 05: We ask this court to reverse and remand the trade court's erroneous denial of our motion for preliminary injunction. [00:00:49] Speaker 05: This court has emphasized the likelihood of success in the merits and irreparable harm prongs of the court's four-part test for preliminary injunction. [00:00:57] Speaker 05: Let me first turn to the likelihood of success [00:00:59] Speaker 05: as that was the primary issue addressed below by the Trade Court. [00:01:03] Speaker 05: We have demonstrated the President's safeguards unlawful for two reasons. [00:01:07] Speaker 05: First, the President acted without a recommendation of the Commission. [00:01:11] Speaker 04: And second, the President acted when imports from Canada... Well, there was a recommendation, but not as to remedy, right? [00:01:18] Speaker 04: Sorry, Your Honor. [00:01:19] Speaker 04: There was a finding as to injury, but not as to remedy. [00:01:23] Speaker 05: That's correct, Your Honor. [00:01:24] Speaker 05: There was, in fact, a finding of serious injury. [00:01:26] Speaker 05: But the commission did not make a recommendation of the commission. [00:01:30] Speaker 05: And that is explicitly required, Your Honor, in the statute. [00:01:32] Speaker 01: Well, three different commissioners made recommendations. [00:01:35] Speaker 01: They just couldn't agree on the exact terms that were necessary to remedy the serious injury. [00:01:39] Speaker 01: Is that correct? [00:01:41] Speaker 05: That's correct, Your Honor. [00:01:41] Speaker 05: But section 1330 of the Trade Act requires, Your Honor, that there either be a majority, as explicitly required by the statute, or a plurality of three. [00:01:51] Speaker 05: Here, Your Honor, we do not have either one of those. [00:01:53] Speaker 01: And thus, I think it's... But where does the act require that there have to be a recommendation that garners a majority prior to presidential action? [00:02:01] Speaker 01: I see where the statute requires a finding of serious injury, but I don't see where the statute requires a recommendation before the president can act. [00:02:11] Speaker 05: Your Honor, I think the statute requires that in several specific areas. [00:02:15] Speaker 05: First, if you look at Section 2252F of the statute, [00:02:19] Speaker 05: The commission must promulgate a report that must include a recommendation of the commission. [00:02:24] Speaker 01: OK, hold on. [00:02:26] Speaker 01: I've got my statute. [00:02:42] Speaker 01: 2252F. [00:02:42] Speaker 01: OK, report by commission. [00:02:43] Speaker 01: Is that what you want me to look at? [00:02:45] Speaker 01: The title of that section is report by commission. [00:02:48] Speaker 05: That's right, Your Honor. [00:02:50] Speaker 05: And F1 says that the commission shall submit to the president a report. [00:02:54] Speaker 05: Then in F2A, Your Honor, it says, the commission shall include in the report, B, the recommendations made under Section E and an explanation of the basis for each recommendation. [00:03:05] Speaker 05: Now, you might, Your Honor, wonder why it says recommendations. [00:03:07] Speaker 05: If you look at Section E, it talks first about a recommendation of the commission. [00:03:12] Speaker 05: That could be, for example, a tariff rate quota. [00:03:16] Speaker 05: It also talks about certain other recommendations that it may make to the president. [00:03:19] Speaker 05: For example, it may suggest that he should conduct international negotiations or other things. [00:03:24] Speaker 05: But it's clear, Your Honor, that there has to be a recommendation of the commission. [00:03:27] Speaker 01: That point is further explained in the... No, it's clear that a report by the commission should contain, if there is a determination under B, which is the serious injury determination, then the recommendations [00:03:44] Speaker 01: plural, for action made under subsection E of the section and an explanation for a basis of each recommendation. [00:03:51] Speaker 01: It should also then contain any dissenting or separate views. [00:03:55] Speaker 01: So why don't we have a report which satisfies the requirements of F? [00:04:00] Speaker 01: We have a report in which each commissioner lays out its recommendation and a number of separate views. [00:04:08] Speaker 05: That's right, Your Honor. [00:04:09] Speaker 05: We do have individual recommendations of the commission, but we do not have a recommendation [00:04:13] Speaker 05: of the commission as a whole, which is required. [00:04:15] Speaker 04: But yeah, if you look at 2251A, which is what we dealt with in chorus, I think, it does say that if there's a determination of serious injury, the presidential act. [00:04:32] Speaker 04: And we held that finding by the ITC about finding of serious injury was a predicate to presidential action. [00:04:40] Speaker 04: But there's nothing in 2251A that says a recommendation is to remedy as a predicate to presidential action, right? [00:04:49] Speaker 05: No, Your Honor, but it does, in fact, say in the same section that his action can only be in accordance with this part. [00:04:56] Speaker 05: This part also encompasses section 202 of the act, which, as I just was discussing with Judge Moore, requires a... What does it say that the president can only [00:05:06] Speaker 03: I'm sorry, Your Honor. [00:05:08] Speaker 03: What does it say in 2251 that the President has to take certain action? [00:05:14] Speaker 05: Your Honor, the statute says that he shall take all appropriate and feasible action immediately before... It says within his power, which the President determines. [00:05:24] Speaker 03: So it seems to me that the statute gives the President discretion to determine what type of efforts to help the domestic industry they're going to take. [00:05:35] Speaker 05: I don't think that's right, Your Honor, and that's because if you look immediately before the language that you're talking about, it says in accordance with this part. [00:05:41] Speaker 05: Furthermore, if you look at other parts of the statute, Your Honor, it requires, for example, in 2253, that the President explicitly take into account the recommendation of the Commission. [00:05:51] Speaker 05: So it's very clear that Congress wanted him to take into account the recommendation of the Commission. [00:05:56] Speaker 03: Furthermore, Your Honor, if you look at... Yes, he takes into account recommendations of the Commission. [00:06:02] Speaker 03: But 2251 clearly states that it's the finished part of which the president determines will facilitate the efforts. [00:06:10] Speaker 03: It's up to the president to determine. [00:06:12] Speaker 03: Is it not? [00:06:14] Speaker 05: No, Your Honor. [00:06:15] Speaker 05: I think he can determine, but only in accordance with the provisions of the statute. [00:06:19] Speaker 05: The statute says that first he must take into account the recommendation of the commission. [00:06:23] Speaker 03: It also says, for example, that he doesn't say he has to obey the recommendation. [00:06:28] Speaker 03: It says take it into account. [00:06:30] Speaker 05: No, that's true, Your Honor. [00:06:31] Speaker 05: But if he disagrees with the commission, he has to provide a report to the commission of why he disagreed in detail. [00:06:37] Speaker 05: That's required by the statute. [00:06:38] Speaker 05: And Your Honor, in chorus, this very court discussed how the commission has to explain itself and how it has to explain in detail the basis for its recommendation. [00:06:47] Speaker 05: So I think it's clear from the statute and from this court's holdings that it's more than just a question of serious injury. [00:06:52] Speaker 05: This court said that the commission's findings also have to be internally consistent. [00:06:56] Speaker 05: So the commission, this court was saying that you have to go beyond [00:06:59] Speaker 05: It's not just a question of serious injury. [00:07:01] Speaker 05: It's a question of what the Commission actually says. [00:07:03] Speaker 05: And the Commission must make a finding, excuse me, a recommendation. [00:07:06] Speaker 05: And very importantly, Your Honor, without a recommendation, Congress's ability to override the President would be disabled. [00:07:12] Speaker 03: Okay, so let's go to 2253. [00:07:14] Speaker 03: A1A. [00:07:17] Speaker 03: And here it's referring to the report under Section 2251F. [00:07:21] Speaker 03: And it says, the President shall take all appropriate and feasible action [00:07:29] Speaker 03: And I'm assuming that the President decides what's appropriate and feasible within its part of which the President determines. [00:07:36] Speaker 03: Again, it's up to the President to determine at that point what type of measures are going to be applied. [00:07:44] Speaker 05: We don't dispute the text of the statute order, but the statute has multiple requirements. [00:07:49] Speaker 05: Yes, we don't dispute that the Commission needed to make a finding of serious injury in order for the President to act. [00:07:54] Speaker 05: But the President also had to take certain actions. [00:07:56] Speaker 05: He had to take into account the recommendation of the Commission. [00:07:59] Speaker 03: No, that's quite right, Your Honor. [00:08:14] Speaker 05: What I'm saying is that the Commission's recommendation has to be taken into account. [00:08:18] Speaker 01: if he differs which he certainly make the statute certainly provides them with the ability to differ from the commission where it's here is no commission recommendation is it your view that no presidential action the appropriate under the statute in those circumstances uh... that that is a video i i think we're happy the statute in twenty two fifty-one a says if there's a finding serious injury the president shall take all appropriate and feasible action and so your view [00:08:48] Speaker 01: is a disagreement among the commissioners over, not the fact that they're serious injuries, that they could be in complete agreement with, but a disagreement over what the appropriate recommended action ought to be handcuffs the president contrary to the clear mandate of the plain language of the statute. [00:09:05] Speaker 01: That is your view. [00:09:07] Speaker 05: Game over. [00:09:10] Speaker 05: I think, Your Honor, that is because it's not just about 2251. [00:09:14] Speaker 05: The statute has to be read as a whole. [00:09:15] Speaker 05: You can't pick isolated parts as the government has requested. [00:09:18] Speaker 01: Again, 2252- Your reading of the statute is neither consistent with the plain language nor consistent with any rational policy that I can ascertain. [00:09:27] Speaker 05: Your Honor, let me add one practical point for your consideration. [00:09:30] Speaker 05: The statute provides that the commission shall have 120 days to make a finding of serious injury. [00:09:36] Speaker 05: But the statute also gives the commission up to 180 days [00:09:40] Speaker 05: to make its recommendation and to issue its report. [00:09:43] Speaker 05: If the Congress wanted the president to be able to act without a recommendation, then they would have said, after the finding of serious injury, which must happen within 120 days, the president can act. [00:09:52] Speaker 05: Instead, they explicitly conditioned his ability to act, per Judge Raina's comments, explicitly conditioned his ability to act on receiving the recommendation of the commission. [00:10:00] Speaker 05: Why is that? [00:10:01] Speaker 05: Because the commission is considered a body of experts, a body that the president must hear from in order to make his decision. [00:10:08] Speaker 01: The same provision, Judge Moore, that you're talking about also... And all those experts agree there's going to be substantial harm or injury here. [00:10:15] Speaker 01: And the statute says in that situation, the president shall take all appropriate and feasible action. [00:10:21] Speaker 05: That may be, Your Honor, but the conditions of 19 U.S.C. [00:10:23] Speaker 05: 1330 warden met and there was not a recommendation of the commission. [00:10:27] Speaker 05: To your point, Your Honor, if we can pick and choose from which statutory requirements to pick from, the statute also says in the same provision where it says that the president shall take into account the recommendation of the commission, [00:10:38] Speaker 05: that he shall take into account the national defense. [00:10:41] Speaker 05: Are we here to suggest that the president? [00:10:43] Speaker 03: I'm not bothered by the word shall. [00:10:45] Speaker 03: I mean, it looks like the president's being directed to do something. [00:10:49] Speaker 03: But what does take into account mean? [00:10:53] Speaker 03: I can take your arguments today into account. [00:10:56] Speaker 03: But does it mean I have to adopt them? [00:10:59] Speaker 03: I mean, it's still up to me to decide the case, right? [00:11:04] Speaker 05: That's right, Your Honor, except that the Congress explicitly capped, to use your word, cabin the president's authority. [00:11:09] Speaker 05: They said that if we find that the president has acted in a way that different from the commission, we reserve to ourselves the ability to pass a joint resolution to override the president's action. [00:11:19] Speaker 05: So very clearly in this instance, they were concerned about the president having absolute power to act, even when there was a finding of serious injury. [00:11:27] Speaker 05: If I can, I'd like to turn briefly, because I reserved three minutes of time for rebuttal, I'd like to turn briefly to our second argument, [00:11:34] Speaker 05: And that is that the President acted without a substantial share, without Canadian imports accounting for a substantial share. [00:11:41] Speaker 05: Here, Your Honor, the words substantial must be given meaning. [00:11:44] Speaker 01: But that ignores the fact that there was also a determination that the imports from Canada contribute importantly to the serious injury or threat of serious injury, which itself constitutes an independent basis, doesn't it? [00:11:57] Speaker 05: No, Your Honor. [00:11:58] Speaker 05: The President is required to exclude Canadian imports if there is a finding of either [00:12:04] Speaker 05: not being substantial share, or the Canadian import did not account for, contribute importantly to the serious injury found by the Commission. [00:12:12] Speaker 05: Here, Canadian imports only accounted for 1% by value, as my friends from the Government of Canada have explained in their brief. [00:12:18] Speaker 05: And Your Honor, as we've said, that this Court and the Supreme Court have said, substantial must be given meaning. [00:12:23] Speaker 05: It has to be considered whether it's important, or whether it is a large number. [00:12:28] Speaker 05: So, since the question of whether substantial was not met, [00:12:33] Speaker 05: the president has not acted in accordance with the statute. [00:12:35] Speaker 05: This court, in chorus and many other cases, has explained that when the president has fundamentally misconstrued a statute by not giving meanings to the explicit words of the statute, that's a violation of law and cannot be upheld, Your Honor. [00:12:47] Speaker 05: As I said, I reserve three minutes of time for rebuttal. [00:12:54] Speaker 04: OK. [00:12:54] Speaker 04: Ms. [00:12:54] Speaker 04: Davidson. [00:13:02] Speaker 00: Good morning, and may it please the court. [00:13:04] Speaker 04: The trial court acted well within... So the government agrees that the president had to make a substantial share finding, right? [00:13:12] Speaker 00: The government... The president is required to make a substantial share finding, and the president made one. [00:13:18] Speaker 04: Okay, and I guess my question is, how should I read that finding? [00:13:22] Speaker 04: Because here, the ITC made a specific determination that Canada did not. [00:13:30] Speaker 04: constitute a substantial share. [00:13:32] Speaker 04: Should we read the president's determination of substantial share to rest on the chairman's suggestion that there was a concern about a surge of imports in the future from Canada if Canada were not included? [00:13:54] Speaker 04: Is that how we should read the presidential proclamation? [00:13:56] Speaker 00: Under the statute, the two requirements that the ITC look at substantial share and contribute importantly in the president's... You're not answering my question. [00:14:04] Speaker 00: You're not answering my question. [00:14:05] Speaker 00: I'm trying to, your honor. [00:14:06] Speaker 04: My question is, in the light of what the ITC said, should we read the presidential proclamation's finding of substantial share as resting on the surge rationale that the chairman articulated? [00:14:26] Speaker 00: There was one reason, one rationale. [00:14:29] Speaker 00: In the report to Congress, the president also noted concern for all of the FTA countries with the mobility of manufacturers in this industry. [00:14:39] Speaker 00: This has already been a problem. [00:14:41] Speaker 04: What's the answer to my question? [00:14:44] Speaker 00: Did the president rely on the three commissioners? [00:14:47] Speaker 04: Should we read the proclamation? [00:14:51] Speaker 04: the finding of substantial share in the proclamation as resting on the surge rationale? [00:14:59] Speaker 00: The president did not. [00:15:01] Speaker 00: The president said he took into the answer is I don't know because it doesn't expressly say surge rationale. [00:15:08] Speaker 00: The president does say he considered the ITC's report. [00:15:11] Speaker 00: which would include all four commissioners, the chairman who did not find a substantial share and the other three that did find substantial share. [00:15:19] Speaker 00: And then he made his own determination under the statute. [00:15:22] Speaker 00: In the report to Congress, the president mentioned that in addition to making the finding, the concern with the mobility of this industry that under the anti-dumping. [00:15:32] Speaker 03: This last thing you're talking about, the mobility of the industry, goes to my question. [00:15:40] Speaker 03: consider, can the president consider in making his determination factors or matters that are not included in the ITC report? [00:15:50] Speaker 00: Yes. [00:15:51] Speaker 03: Would that include, for example, the trade policy staff committee reports? [00:15:56] Speaker 00: Yes. [00:15:57] Speaker 00: Under the statute, the president makes an independent determination. [00:16:00] Speaker 00: It's not dependent at all on the ITC. [00:16:02] Speaker 03: Or in relation matters. [00:16:07] Speaker 00: The statute does not identify foreign relation matters as a factor the president could take into account. [00:16:13] Speaker 00: But the president didn't identify that. [00:16:14] Speaker 03: Is it your position that the president could take that into account? [00:16:18] Speaker 00: I think the president could take that into account, exercising his constitutional authority. [00:16:24] Speaker 04: Suppose we were to read the proclamation as resting on the surge rationale. [00:16:30] Speaker 04: Would that be lawful? [00:16:33] Speaker 00: Yes, it would be lawful. [00:16:35] Speaker 00: But the president did not expressly [00:16:37] Speaker 00: rely on the search mechanism. [00:16:39] Speaker 00: You relied on the whole report. [00:16:40] Speaker 01: I'm confused. [00:16:41] Speaker 01: Isn't it the case that we're not to review factual determinations the president has made? [00:16:45] Speaker 01: I mean, this sounds like a factual determination. [00:16:47] Speaker 01: How can what share, what role you play in the injury be anything other than a fact determination? [00:16:55] Speaker 00: In this case, this claim is just like the claim in motion systems. [00:16:59] Speaker 01: Aren't we just supposed to make sure he follows all the proper procedural steps? [00:17:03] Speaker 00: Yes. [00:17:04] Speaker 01: That's our job as Review Court, not to second-guess the President when he makes a factual determination. [00:17:10] Speaker 04: Absolutely. [00:17:10] Speaker 04: Well, that may be true, but if the President rested on incorrect legal rationale, the cases suggest that there could be review. [00:17:20] Speaker 04: And what I'm trying to ask you is if [00:17:23] Speaker 04: the proclamation rested on the surge rationale. [00:17:26] Speaker 04: We have a statute here which says that provides for surge remedies. [00:17:33] Speaker 04: And it provides for surge remedies only after there has been a surge, not in anticipation of the surge. [00:17:42] Speaker 04: So I guess my question to you is, does that statute providing for presidential authority to remedy a surge [00:17:52] Speaker 04: cabin his authority here. [00:17:55] Speaker 00: No, that statute is not exclusive. [00:17:57] Speaker 00: It doesn't say that this is to the exclusion of all other remedies. [00:18:00] Speaker 00: And the president did not expressly rely on the surge problem, which all four commissioners noted. [00:18:08] Speaker 04: Suppose he had said, I agree with the ITC that the Canadian imports do not now constitute a substantial share. [00:18:18] Speaker 04: And the basis for my action is concerns about future surges. [00:18:23] Speaker 04: Would that be a lawful action? [00:18:26] Speaker 00: I think it would be lawful because it would be a factual finding. [00:18:29] Speaker 00: This case is just like motion systems. [00:18:31] Speaker 04: No, no, no. [00:18:31] Speaker 04: It's not a factual finding. [00:18:32] Speaker 04: I'm saying, he says, this is my legal, my understanding of my legal authority. [00:18:38] Speaker 04: And I agree with the ITC that the Canadian imports do not now constitute a substantial share [00:18:47] Speaker 04: but I am acting because of the possibility of a future surge. [00:18:53] Speaker 00: I think that would be lawful. [00:18:55] Speaker 00: And I also think it would be factual. [00:18:57] Speaker 00: But the president here did not identify surge as a reason. [00:19:01] Speaker 00: He identified the concern with mobility. [00:19:03] Speaker 04: Why would it be lawful for him to act because of the possibility of a future surge when the statute conveys authority only to take account of a surge when it [00:19:15] Speaker 00: Because that, that, those remedies are not exclusive, those surge remedies. [00:19:19] Speaker 00: That is one remedy for, for moving around and for surges in other countries. [00:19:25] Speaker 00: But there are other trade remedies that could apply in the case of surges, and none of them are exclusive. [00:19:31] Speaker 00: In fact, the, the domestic industry has obtained two anti-dumping duty orders and two countervailing duty orders already. [00:19:38] Speaker 00: But because of this mobility problem, [00:19:41] Speaker 00: the imports just keep flooding into the United States, and that's why they resorted to Section 201, the escape clause provision, when they had no other recourse. [00:19:51] Speaker 00: I also would like to go back to Count 1, but just to emphasize that on Count 3, the appellant's argument is just like motion systems. [00:20:06] Speaker 00: There, too, the plaintiffs argued [00:20:09] Speaker 00: that the president must have construed the statute, because on this record, he couldn't have reached the conclusion that the statute was met, that there was a substantial share. [00:20:19] Speaker 00: And that's exactly what they're arguing. [00:20:21] Speaker 00: But that is a factual review, a review of the president's exercise of discretion and fact-finding authority. [00:20:29] Speaker 00: There's no indication that the president. [00:20:32] Speaker 04: Did the USTR report address this issue, which is not part of the Joint Appendix here? [00:20:38] Speaker 04: The USTR sent a report to the president right after the ITC's report. [00:20:43] Speaker 00: Yes, that's a requirement under the statute. [00:20:45] Speaker 04: Did that report address this issue? [00:20:47] Speaker 00: Yes. [00:20:48] Speaker 04: What did it say about it? [00:20:50] Speaker 00: I don't have it with me and I think we would have to consider whether that is deliberative, Your Honor. [00:20:57] Speaker 00: But if Your Honor would like... It's not a public document? [00:20:59] Speaker 00: No, it's not a public document. [00:21:00] Speaker 00: But if Your Honor would like us to request whether it could be provided to the court, I'd be happy to. [00:21:07] Speaker 00: No, it's not part of the record. [00:21:09] Speaker 00: It is a recommendation from the trade representative to the president. [00:21:14] Speaker 03: So under your argument, can we ever review any proclamation issued by the president in a safeguards action? [00:21:24] Speaker 00: As in chorus, you could review a proclamation to determine if the serious injury requirement was met. [00:21:32] Speaker 00: That is the only precondition for action by the president under Section 201. [00:21:37] Speaker 00: And this court did review the ITC's injury determination in chorus. [00:21:42] Speaker 00: But the president's decision itself is discretionary, as the trial court explained. [00:21:47] Speaker 00: And under every case decided by this court, going back to Floreshine, Maple Leaf, chorus, motion systems, Michael Simon, presidential proclamations in the trade area that are reserved to the president's discretion are not reviewable. [00:22:01] Speaker 03: What's the situation where the president's authority would not be discretionary? [00:22:05] Speaker 00: I think it's with the injury determination. [00:22:07] Speaker 00: That is a clear requirement for the president to act. [00:22:10] Speaker 00: And that's why this court reviewed the injury determination. [00:22:14] Speaker 03: Is there any other situation other than just in the injury requirement? [00:22:21] Speaker 00: No. [00:22:21] Speaker 00: There were some temporal requirements, some limitations on the duration of the action. [00:22:27] Speaker 00: I haven't looked at that issue, so I don't want to concede that that would be an issue. [00:22:31] Speaker 00: But otherwise, I'm not aware of any. [00:22:36] Speaker 00: 2251 and 2253 are clear that once the commission makes a finding of serious injury, the president must take action. [00:22:46] Speaker 04: This case is different from a lot of the earlier cases in that the standard that the president is applying is a standard that has judicially manageable standards, correct? [00:22:58] Speaker 04: I mean, unlike some of these other cases where [00:23:01] Speaker 04: the president was supposed to determine whether the tariffs were in the national interest or something like that, which is not a standard that a court could possibly apply. [00:23:09] Speaker 00: No, this is just like Michael Simon, which involved a recommendation to the president or a foreshadowing. [00:23:14] Speaker 04: No, no, no, no. [00:23:15] Speaker 04: Wait, wait. [00:23:15] Speaker 04: The standard here is that if it were an agency determination about substantial share, that would be reviewable, right? [00:23:24] Speaker 04: There's a judicially manageable standard. [00:23:26] Speaker 04: If it were an agency determination, that were the issue before us, correct? [00:23:31] Speaker 00: If it were a precondition for the president's action, then it would be like the injury determination. [00:23:35] Speaker 00: I agree. [00:23:36] Speaker 00: But here, the statute requires the ITC to do one thing, to conduct this exercise, make a determination, report to the president. [00:23:43] Speaker 00: And then the president makes a separate determination on his own. [00:23:47] Speaker 00: I understand that. [00:23:47] Speaker 04: That's not my question. [00:23:48] Speaker 04: My question is that in terms of a judicially manageable standard, the substantial share standard of the statute is a judicially manageable standard. [00:23:58] Speaker 04: It's not like a standard that says, [00:24:01] Speaker 04: the president shall make a determination whether tariffs are in the national interest, right? [00:24:08] Speaker 00: Well, it is a legal standard, but it isn't binding on the president and the appellants don't. [00:24:15] Speaker 04: I understand that argument. [00:24:17] Speaker 04: The argument is that the statute, when it talks about a presidential determination, it makes the president's determination unreviewable to a large extent. [00:24:26] Speaker 04: But if we were reviewing an ITC determination with a substantial share standard, we could review that. [00:24:35] Speaker 04: We'd know what to do, right? [00:24:37] Speaker 00: Right. [00:24:37] Speaker 00: Although here, because it's not a precondition, there'd be no reason to. [00:24:40] Speaker 00: But it's a legal standard. [00:24:42] Speaker 04: Because the statute speaks in terms of a presidential determination, the argument is it's not reviewable, as opposed to an agency determination. [00:24:52] Speaker 00: Correct. [00:24:55] Speaker 00: I would like to emphasize on count one that this court has never enjoined the president from providing emergency relief for an industry or enjoined any presidential proclamation in the trade area. [00:25:12] Speaker 00: And the trial court was absolutely within its discretion to deny a request for the extraordinary remedy of preliminary injunctive relief until the court could consider the case. [00:25:22] Speaker 00: And the case flow is continuing. [00:25:25] Speaker 00: If this court were to agree with the plaintiffs that they are likely to succeed and that the public interest favors their cause, both of which the trial court on a very well-reasoned decision found otherwise, then the only recourse would be a remand for further proceedings on irreparable harm and balance of interests. [00:25:46] Speaker 00: The government reserved its right to counter the irreparable harm allegations three times on the record. [00:25:52] Speaker 00: And we've identified some of the information we would submit if we had a chance, showing that the appellants far from suffering are a global conglomerate and are planning to expand and are doing quite well financially, notwithstanding the tariffs. [00:26:09] Speaker 00: And as the trial court said in chorus, the imposition of extraordinary relief, like safeguard, is going to cause economic harm to importers. [00:26:20] Speaker 00: That's always going to be the case. [00:26:21] Speaker 01: Both parties in this case, this case became expedited. [00:26:24] Speaker 01: That's why we reconstituted ourselves and are holding it in special session. [00:26:28] Speaker 00: Thank you. [00:26:28] Speaker 01: I assume both parties would be very grateful for extremely quick and prompt resolution of this case. [00:26:35] Speaker 01: Is that right? [00:26:36] Speaker 00: Yes, Your Honor. [00:26:36] Speaker 01: Is there a lot hanging on this? [00:26:38] Speaker 01: Excuse me? [00:26:38] Speaker 01: There's a lot probably hanging on this decision that needs to be resolved quickly. [00:26:43] Speaker 00: Well, anytime there's a presidential action that's been challenged, we would like a quick resolution. [00:26:49] Speaker 00: and the proceedings below are continuing. [00:26:52] Speaker 04: So what is happening in the trade court now? [00:26:57] Speaker 00: We are filing cross motions on the merits of the case. [00:27:02] Speaker 04: Is there any factual issue on the merits? [00:27:04] Speaker 00: No, not yet. [00:27:06] Speaker 04: Not yet? [00:27:08] Speaker 00: I mean, I can't imagine one, but one hasn't arisen yet. [00:27:13] Speaker 00: I mean, we're still briefing. [00:27:15] Speaker 00: Appellants have not responded to our motion, so I don't know if they're going to raise a factual issue. [00:27:21] Speaker 00: But for those reasons, as well as those set forth in our brief, we respectfully ask that you affirm the judgment below, if not to remand for further proceedings. [00:27:30] Speaker 04: Thank you. [00:27:31] Speaker 04: Thank you. [00:27:32] Speaker 04: Mr. Henderson. [00:27:43] Speaker 02: May I please report? [00:27:45] Speaker 02: We've already stated, summarized in our brief, why we think the commission's action fully complied with the statute in this case, including the commission's remedy recommendations. [00:27:54] Speaker 02: But we'd like to see our understanding of the appellant's argument is that despite the fact that the commission remedy recommendations are in no way binding on the president and that notwithstanding counsel's argument, there is no requirement in the statute that a majority of the commissioners agree on a recommendation or that there be a [00:28:14] Speaker 02: remedy finding of the commission agreed to by at least three commissioners. [00:28:18] Speaker 03: So what does remedy finding mean? [00:28:20] Speaker 03: Does that mean recommendations on remedy by different commissioners? [00:28:26] Speaker 03: Or should we look at this as a legal term that means that it's got to be a finding of the commission as a whole? [00:28:38] Speaker 02: Section 1330D2 is where the term remedy finding of the commission was introduced. [00:28:44] Speaker 02: And it's something that was in the 1976 amendment. [00:28:47] Speaker 02: And this was a subject of considerable argument and discussion by the trial court in the opinion below. [00:28:54] Speaker 02: And what happened was, before 1976, there was concern that the commission was not issuing majority remedy recommendations in all cases, in a number of cases. [00:29:07] Speaker 02: And therefore, the statutory congressional override procedure was not available for Congress to act when the president failed to take action after a affirmative commission injury determination. [00:29:21] Speaker 02: So what Congress did in this 1976 amendment in Section 1330D2 is, for purposes of the congressional override mechanism, Congress decided to say, we are going to create something called [00:29:35] Speaker 02: a remedy finding of the commission in cases where there is no majority commission recommendation. [00:29:42] Speaker 02: And we are going to make this remedy finding of the commission for purposes of the override available in some cases, but not in all cases. [00:29:49] Speaker 02: It's available as 1330D2 and the various subsections indicate, where there is a plurality of not less than three commissioners or where the commission is equally divided three to three. [00:30:01] Speaker 02: And but it is not available under other circumstances. [00:30:04] Speaker 02: And here, where we only had four commissioners sitting, and a majority, of course, is three commissioners, therefore, if you don't have a majority, you're not going to have a remedy finding of the commission. [00:30:17] Speaker 02: But the significance is the legislative history and the language of the statute of firm is [00:30:22] Speaker 02: Remedy finding of the commission is for purposes of the congressional override in certain situations, but not in other situations. [00:30:28] Speaker 04: The opinion of the trade court here appeared to suggest that the fast-track authority of Congress wasn't available here because there wasn't a remedy recommendation. [00:30:40] Speaker 04: Am I reading the opinion correctly? [00:30:44] Speaker 02: Prior to 1976, there were certainly... No, no, no. [00:30:47] Speaker 04: I'm asking about the trade court's decision here. [00:30:49] Speaker 04: Am I reading it correctly? [00:30:50] Speaker 02: Right. [00:30:51] Speaker 02: In this case, there was no recommendation by a commission majority or remedy finding. [00:30:56] Speaker 04: Please answer my question. [00:30:57] Speaker 04: Sorry. [00:30:57] Speaker 04: My question is, do I read the trade court decision here correctly as saying that because there was no remedy recommendation, the fast-track authority in Congress was not available? [00:31:11] Speaker 02: Yes, Your Honor. [00:31:11] Speaker 02: In this case, the congressional override procedure [00:31:15] Speaker 02: was not available because there was no qualifying remedy finding. [00:31:19] Speaker 04: We don't have to reach that question, do we? [00:31:22] Speaker 04: No. [00:31:22] Speaker 04: Is that really any of our business, whether Congress can do this or not? [00:31:28] Speaker 04: Isn't that up to Congress and not to us? [00:31:31] Speaker 02: It is up to Congress, and Congress in Section 1330D2 made it clear that in some situations [00:31:38] Speaker 02: the override procedure would be available. [00:31:42] Speaker 02: In other sections it would not. [00:31:44] Speaker 02: Other situations would not be available. [00:31:45] Speaker 03: The other side is arguing that having a remedy finding is important in how you arrive at that decision because you don't want to be in a situation where there is no congressional override. [00:32:01] Speaker 03: That one reading of the remedy finding can read out entirely the provision requiring or instituting congressional override. [00:32:09] Speaker 02: There is a preference, and it's stated in the legislative history, for commission majority recommendations in all cases, in all findings. [00:32:18] Speaker 02: But Congress made it clear in the 1976 legislation that it was only making the remedy finding available in certain situations, and not, for example, in the case where there are only four sitting commissioners. [00:32:32] Speaker 02: And it made clear that we are in the 1976 legislative history that they were not changing the procedures of the commission at all. [00:32:40] Speaker 02: So inevitably, the way Congress drafted the law on Section 1330D2, there are going to be some cases where there's neither a majority recommendation or a remedy finding supported by at least three commissioners. [00:32:52] Speaker 02: And therefore, in those cases, the congressional override procedure would be unavailable. [00:32:57] Speaker 02: But that's the way Congress drafted the law. [00:33:01] Speaker 04: But not for us to interpret whether there's a congressional fast track remedy here, right? [00:33:09] Speaker 02: I agree that that's not an issue for the court. [00:33:14] Speaker 02: OK. [00:33:22] Speaker 04: Thank you. [00:33:24] Speaker 04: Thank you. [00:33:24] Speaker 04: Thank you. [00:33:24] Speaker 04: Mr. Stowell, you have almost three minutes here. [00:33:34] Speaker 05: I thank you, Your Honor. [00:33:35] Speaker 05: First, the government did not, in its brief, argue that finding a substantial share was a discretionary act by the President, Your Honors. [00:33:43] Speaker 05: Second, the President did not provide any explanation for his finding that Canadian imports did account for a substantial share in his report. [00:33:51] Speaker 05: And that's interesting. [00:33:51] Speaker 04: But he doesn't have to provide an explanation, does he? [00:33:55] Speaker 05: Your Honor, I think he has to act in a way that's... Even if he did, who's going to review that? [00:34:00] Speaker 05: Your Honor, you cannot review either of the facts, but there's no dispute about the facts here, or about his rationale. [00:34:07] Speaker 05: But you can review whether his act on its face is consistent with the statute, whether he has misconstrued the statute. [00:34:13] Speaker 05: That, again, is a holding of chorus in several other cases. [00:34:16] Speaker 05: And, Your Honor, I think it's worth pointing out the Appendix 846. [00:34:19] Speaker 05: In that part of the President's report, to my opposition's comments, he specifically talked about a rationale for other FTA partners. [00:34:27] Speaker 05: He said that in light of the frequency with which producers have moved production of cells in modules, and he talked about other FDA partners, he made no mention of Canadian imports for that being the reason. [00:34:39] Speaker 05: Third, to Judge Dice's question, Section 312C of the Act specifically provides for what might happen if there is a surge. [00:34:46] Speaker 05: There's no reason for the President to be acting with respect to a surge here. [00:34:50] Speaker 05: The statute has already contemplated that specific possibility. [00:34:53] Speaker 05: With respect to motion systems, Your Honor, that case is a very different case. [00:34:57] Speaker 05: In that case, for one thing, the President relied on facts. [00:35:01] Speaker 05: He did no such thing here. [00:35:03] Speaker 05: Facts outside the record. [00:35:04] Speaker 05: Secondly, motion systems had to do with issues of the national defense and the national economic interest. [00:35:09] Speaker 05: That's not a question that can be judicially reviewed, like whether something constitutes a substantial share. [00:35:15] Speaker 05: Turning briefly to our arguments with respect to Count 1. [00:35:18] Speaker 05: First, it's very important that in chorus, this Court said that 2252F provides in detail what the Commission report [00:35:27] Speaker 05: must contain. [00:35:28] Speaker 05: It must contain a recommendation of the Commission. [00:35:33] Speaker 05: And that same provision also says that the Commission had to provide an explanation for its recommendation. [00:35:40] Speaker 05: Your Honor, why is that the case? [00:35:42] Speaker 05: That's because, as we've been discussing, Congress put into place an override mechanism. [00:35:46] Speaker 05: Congress wanted to have the ability, when there was a recommendation of the Commission, to have the ability to pass a joint resolution to override the President's actions [00:35:56] Speaker 05: if they differ from the commission. [00:35:58] Speaker 05: The president had to explain in detail, Your Honors, why he disagreed with the commission. [00:36:03] Speaker 05: None of that has been done. [00:36:05] Speaker 05: So Judge Moore's earlier question, yes, 2251A and 2253A talk about the president acting, but that doesn't mean that the other parts of the statute can be obviated by one specific goal. [00:36:16] Speaker 05: You have to read the statute as a whole. [00:36:18] Speaker 05: The president had specific requirements that had to be met. [00:36:21] Speaker 05: He did not meet them. [00:36:22] Speaker 05: That is not in dispute. [00:36:23] Speaker 05: And thus, the president's actions were unlawful. [00:36:26] Speaker 05: Your honors, we also respectfully ask that you reconsider our motion for injunction pending appeal. [00:36:31] Speaker 04: OK. [00:36:32] Speaker 04: Thank you, Mr. Sullivan. [00:36:33] Speaker 04: Thank all counsel. [00:36:34] Speaker 04: The case is submitted. [00:36:35] Speaker 04: That concludes our session for this morning.