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@snlester @AratoJulian @jbentonheath @nicholas_bagley I’ve now read the opinions in Gundy, and while it certainly doesn't foreclose the 232 challenge, I think the dissenting opinion, far from teeing it up as some are suggesting, actually makes it more difficult.1/
@snlester @AratoJulian @jbentonheath @nicholas_bagley First, Gorsuch sets up the core delegation concern as deprivations of “liberty,” while elsewhere, for reasons I’ll get to, cites approvingly delegations of authority to establish a trade embargo.2/
@snlester @AratoJulian @jbentonheath @nicholas_bagley Second, as part of the justification for the latter, Gorsuch reaffirms that foreign affairs/national security is different, suggesting some such delegations are fine because “many foreign affairs powers are constitutionally vested in the president under Article II.”3/
@snlester @AratoJulian @jbentonheath @nicholas_bagley For that proposition, he cites Curtiss-Wright (also a discretionary embargo case) approvingly. It’s easy to imagine certain Justices who agree with the dissent also believing that the 232’s national security tariffs fall into a similar category.4/
@snlester @AratoJulian @jbentonheath @nicholas_bagley Most important, the discretionary embargo meets Gorsuch’s suggested test: It “assign[s] to the executive only the responsibility to make factual findings,” & “set[s] forth the facts that the executive must consider and the criteria against which to measure them.”5/
@snlester @AratoJulian @jbentonheath @nicholas_bagley At least on the surface, section 232 seems to meet that test as well. It specifically requires findings of facts to trigger the President’s authority, lays out factors to be considered, and creates a process to be used.6/
@snlester @AratoJulian @jbentonheath @nicholas_bagley 232’s reporting requirements also seem to fit Gorsuch’s concern that “Congress must set forth standards ‘sufficiently definite and precise to enable Congress, the courts, and the public to ascertain’ whether Congress’s guidance has been followed.”7/
@snlester @AratoJulian @jbentonheath @nicholas_bagley 232’s problem isn’t that it doesn’t turn on a finding of fact, but on a more complicated argument that “national security” is a standard devoid of any meaning.8/
@snlester @AratoJulian @jbentonheath @nicholas_bagley The target of the dissent, the type of nondelegation case it seems to be setting up, is not 232 and its findings regarding national security, but statutes delegating normative policy judgments, statutes using terms like “fair” or “reasonable.9/
@snlester @AratoJulian @jbentonheath @nicholas_bagley Given all of this, the best strategy regarding 232 might be a mirror-image of Kagan’s majority opinion - to argue for a limiting construction of “national security” in the statute, a more specific definition that avoids the constitutional question.10/
