In a recent post, I reported on the government’s response brief in American Institute for International Steel v. United States before the U.S. Court of Appeals for the Federal Circuit. At issue are President Trump’s steel tariffs. In August, the Cato Institute filed a brief in support of the appellants, who are businesses that rely on imported steel and have been harmed by the tariffs. In response to Cato's arguments, the government’s brief took a Janus-faced approach. On the one hand, the Justice Department claimed that the Federal Circuit shouldn’t pay attention to our brief; on the other, the government addressed our arguments. As I noted in the blog post, “It doesn't make much sense for the government to say that we should be ignored, but then to respond to us. As always, actions speak louder than words.”
Yesterday, U.S. Steel Corporation—of Gilded Age pedigree—filed an amicus brief in support of the government. Remarkably, more than half of the brief is given to Cato’s arguments. Indeed, U.S. Steel cites “Cato” twice in the brief’s Table of Contents.
On the merits, I’ll briefly note that U.S. Steel is in a tough spot because the company is forced to claim that federal judges didn’t mean what they said. As we observed in our brief, the Court of International Trade believed that the steel tariffs fall into a constitutional “gray area” where the president may act within the statute but outside the Constitution. In its amicus brief, however, U.S. Steel argues that we misread the lower court. According to U.S. Steel, the Court of International Trade’s opinion, when “read in context,” actually “appears to have in mind circumstances” other than what the court plainly said. As a general matter, you’re on shaky legal ground when you base your claim on what a court “appears to have in mind,” notwithstanding the judges’ words to the contrary.
The upshot is that U.S. Steel, a venerable corporation created by turn-of-the-century industry titans like J.P. Morgan and Andrew Carnegie, hired a white-shoe law firm to support President Trump’s steel tariffs, and the company's contribution to the case focuses on Cato’s claims. It goes without saying that U.S. Steel’s amicus brief hinders the government’s argument that we should be ignored.