Last year, Cause of Action Institute (“CoA Institute”) stepped up its ongoing battle with the Department of Commerce (“Commerce”) over disclosure of Section 232 secretarial reports by filing a lawsuit against the agency for failure to respond to Freedom of Information Act (“FOIA”) requests seeking access to a final report concerning the national-security effects of uranium imports.  This past week, CoA Institute filed its motion for summary judgment, laying out the case for Commerce’s failure to meet its FOIA obligations and exposing the infirmities of the government’s privilege claims.

The Constitution grants Congress the sole authority to set tariffs and regulate foreign commerce.  Under Section 232 of the Trade Expansion Act of 1962, Congress delegated some of that authority to the President by allowing him to adjust tariffs to safeguard national security.  But, as a part of the delegation, Congress requires the Secretary of Commerce to conduct an independent investigation and prepare a report with findings and recommendations for the President.  The law is clear that, upon disposition of a secretarial investigation, the Secretary’s final report is to be published in the Federal Register with redaction of only “classified\” or “proprietary” information.

Although Commerce published Section 232 reports on steel and aluminum shortly after their transmission to the White House, the agency has stonewalled disclosure of the reports on uranium, titanium sponge, and automobiles.  CoA Institute already is engaged in lengthy litigation concerning release of the automobiles report.  That lawsuit, coupled with a disclosure mandate Congress added to recent appropriations legislation, has met with unprecedented resistance from the Executive Branch.  As described in a previous post, the Department of Justice’s Office of Legal Counsel (“OLC”) has taken the remarkable step of publishing a memorandum opinion arguing that Section 232 reports are protected by executive privilege until the President decides otherwise, and any attempt to force disclosure under Section 232 or another legal mechanisms is effectively unconstitutional.  Congress has not stood idly by.  First, it included language in an appropriations bill requiring immediate publication of the auto report, which Commerce ignored.  Second, last month a bi-partisan coalition of eight U.S. Senators filed an amicus brief to support CoA Institute’s position and defend Congress’s authority to condition its delegation of tariff authority on the public release of secretarial reports.

Commerce’s adoption of the OLC Opinion, and its admissions in the pending lawsuit over release of the uranium report, are troubling.  As CoA Institute explains in its recent motion, Commerce’s declarants have explicitly admitted that the agency will withhold Section 232 secretarial reports in full under the presidential-communications and deliberative-process privileges until directed otherwise by the President.  Not only are these privileges unavailable, but Commerce’s categorical policy of keeping Section 232 reports secret, coupled with the outsourcing of FOIA decision-making to the White House, runs afoul of well-established legal principles.  The withholding of the uranium report is moreover unjustified because the President has explicitly disavowed action under Section 232.

The current Administration has kept the public largely in the dark about its tariff policymaking, endangering the interests of consumers and businesses alike.  Secretarial reports are paid for by taxpayers and serve an important role in keeping the tariff process transparent.  This is precisely why Section 232 was designed to require their publication before the President takes any sort of action to adjust imports.  Vague and novel claims about “executive privilege” are inadequate to overcome the clear obligation to disclose secretarial reports.

Ryan P. Mulvey is Counsel at Cause of Action Institute