Last year, Cause of Action Institute (“CoA Institute”) filed two Freedom of Information Act (“FOIA”) requests for a copy of the Secretary of Commerce’s final report to the President under Section 232 of the Trade Expansion Act of 1962 regarding the national security impacts of the importation of automobiles. That report, which must be prepared prior to the imposition of tariffs, is required by law to be published in the Federal Register, subject only to redaction for classified and proprietary information. After Commerce failed to publish the report, and refused to release it under the FOIA, we filed a lawsuit to compel disclosure.
The arguments raised by Commerce throughout the litigation have been varied and troubling. At first, the agency suggested that the report was a “presidential record,” which would have removed it from the scope of public disclosure altogether. Then it argued (here and here) that the report was covered, perhaps indefinitely, by different species of executive privilege—namely, the presidential communications and deliberative process privileges. Commerce even tried to discount the President’s disclosure of the substantive contents of the report, which would have waived the use of privilege, at least to some extent.
But these claims of executive privilege were, and remain, specious. Although Congress delegated tariff authority to Commerce and the President, it conditioned the exercise of that authority on the preparation of a report. If it were not for Congress’s delegation, there would be no report and no tariffs. As the catalyst for the creation of the report, Congress has authority to regulate its treatment, including the mode and timing of its disclosure to the public. Moreover, as we argued in our briefs (here and here) and during oral argument (here), there are numerous deficiencies in the government’s broader privilege claims.
Commerce’s position has depended in large part on ambiguity in Section 232’s publication provision. Section 232 requires eventual disclosure of reports, but the question of timing (or, more precisely, publication in the Federal Register) is left unanswered. The Executive Branch has therefore claimed it has discretion to keep Section 232 reports secret until no longer politically expedient. But at the end of last year, Congress included a special provision in an appropriations bill that explicitly directed Commerce to release the Autos Report within thirty days. President Trump signed that provision into law, warning in a signing statement that he would treat it “consistent with [his] constitutional authority to control information, the disclosure of which could impair national security, foreign relations, the deliberative processes of the executive branch, or the performance of [his] constitutional duties.”
Congress’s deadline for the release of the Autos Report expired on January 19, 2020. As many expected, the Administration refused to comply. This has raised the ire of legislators; Senator Pat Toomey, for example, described Commerce as “willfully violating federal law.” The Administration also released a Department of Justice Office of Legal Counsel (“OLC”) opinion, which purports to provide justification for the agency’s non-compliance.
For those who have been following our case, the OLC opinion does not present much in the way of new arguments. The Executive Branch’s basis for broadly asserting the presidential communications and deliberative process privileges is still wrong and, if anything, raises even more questions about the President’s supposed authority to ignore reporting requirements or keep secret documents reflecting the exercise of delegated decision-making.
We expect that the issues addressed in the OLC opinion will be fleshed out in supplemental briefing in our ongoing FOIA litigation or additional hearings. By next week, Commerce will need to alert the Court of its position moving forward and, if it chooses to stand by the OLC opinion and refuse to disclose the Autos Report, the disposition of the case will likely depend on the validity of the President’s constitutional claims of executive privilege. We are hopefully that the Court will carefully consider the merits and delimit the proper counters of executive privilege in favor of Congress’s authority and open government.
Ryan P. Mulvey is Counsel at Cause of Action Institute
