Trump’s new steel tariffs look vulnerable to a courtroom challenge

The increase is piggybacking on seven-year-old findings. Are they too stale?

President Donald Trump speaking at US Steel Corporation's Mon Valley Works-Irvin plant last week. Picture: AP /Julia Demaree Nikhinson

US steelmaker shares soared on news of President Trump’s new tariffs. But are these tariffs as bulletproof as investors seem to believe?

The steel tariffs, like those on autos and auto parts, are sector-based. They differ in that respect from the “Liberation Day” tariffs Trump unveiled in April. The US Court of International Trade in May blocked Trump’s tariffs on US trading partners, rejecting the argument that he could invoke emergency powers to set the country-by-country tariffs. An appeals court stayed that ruling, pending its own review.

The conventional wisdom in the markets has been that Trump’s recent sector-based tariffs are on firmer legal footing. That might not be the case, though.

In fact, there is reason to believe his new 50 per cent tariff on imported steel could be vulnerable to a legal challenge. To speed up the process, Trump piggybacked on the findings of a national-security investigation by the Commerce Department in 2018, during his first term.

The question now is whether the findings were too stale to be the basis for a new tariff hike, and thus whether Trump should have sought a new national-security investigation first. Going that route would have delayed his timeline.

Cleveland-Cliffs is up 30 per cent since Trump announced his new tariff plans May 30. Nucor and Steel Dynamics are up 11 per cent and 9 per cent, respectively. The tariff increase took effect June 4.

Trump also relied on Commerce Department findings from his first term in office when raising sector-based tariffs this year on aluminum, autos and auto parts. His directive raising aluminum tariffs to 50 per cent from 25 per cent took effect June 4, as well.

Donald Trump tours Irvin Works in Pennsylvania. Picture: AFP

While it is too soon to know whether the sectoral tariffs will draw serious court challenges, a look at the legal underpinnings shows potential soft spots. Trump in his June 3 proclamation said he exercised his authority under the Trade Expansion Act of 1962 to raise steel tariffs to 50 per cent from 25 per cent. In doing so, he cited the Commerce Department’s 2018 investigative report that concluded the quantities of steel being imported into the US threatened to harm national security.

The trade statute says the president, within 90 days of such a report, shall determine whether he concurs with the findings and decide what action to take in response. After that, he has 15 days to implement the action.

A 2021 ruling by a three-judge panel of the US Court of Appeals for the Federal Circuit said the deadlines aren’t strict and some flexibility is allowed. In that case, Trump waited five months after his initial 2018 action to boost tariffs on imported Turkish steel to 50 per cent from 25 per cent. An importer, Transpacific Steel, sued, and the Court of International Trade ruled against the higher tariffs on Turkish imports, saying Trump had gone past the statutory time limit. (By then, Trump had already returned the tariff on Turkish steel to 25 per cent.)

The appellate court reversed that ruling in a 2-1 decision. That decision might have opened the door for Trump to rely on the same 2018 investigative report yet again—seven years later—for his latest tariff boost. However, the appeals court said its ruling applied “in the circumstances presented here.” A decision could turn out differently in other circumstances, such as where the investigative findings are “simply too stale to be a basis” for new presidential actions, the court said.

Tim Meyer, an international-trade specialist and professor at Duke Law School, said the appeals court’s ruling appears to leave room for a plaintiff to challenge the new steel tariffs. “The tricky part is how to apply the standards the court identifies,” he said. “For example, what does it mean for a report to be ‘stale’? The court seems to suggest that the passage of time might be enough. But how much time is too much time?”

Much has happened in the past seven years, including a pandemic. US steel imports were 26.2 million metric tons in 2024, according to the Commerce Department, down 24 per cent since 2017. That point alone could underscore the need for new investigative findings as a predicate for presidential action. Trump in his June 3 proclamation said he also considered “current information newly provided” by the Commerce Department, but didn’t say what it was.

Investors will be watching to see if any well-heeled plaintiffs surface to contest the tariffs. Gordon Johnson, chief executive at GLJ Research, in a June 2 note to clients said he believed the surge in steel stocks was premature and that the new 50 per cent tariffs “could be overturned due to a lack of a new investigation.” He also noted that no one had sought an injunction yet to block them. That said, he wrote, “we believe there are procedural problems that make these new tariffs vulnerable to a lawsuit.”

Steelmaker shares could take a hit if a court invalidated the sectoral tariffs. US automaker stocks, on the other hand, could rally. Of course, the Trump administration could simply initiate new Commerce Department investigations and reinstitute the tariffs later. The net result for investors and the economy ultimately might be just more prolonged uncertainty about Trump’s favorite negotiating tool.

Wall Street Journal