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United States: Supreme Court Decision in Federal Energy Administration et al v. Algonquin SNG, Inc., et al (License Fees for the Importation of Oil and Petroleum Products; Executive Authority in the Field of Foreign Trade)*

Published online by Cambridge University Press:  04 April 2017

Abstract

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Type
Judicial and Similar Proceedings
Copyright
Copyright © American Society of International Law 1976

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Footnotes

*

[Reproduced from the Slip Opinion provided by the U.S. Supreme Court.

[The Order of the U.S. District Court for the District of Columbia, dated February 21, 1975, appears at 14 I.L.M. 1270 (1975). The Decision of the U.S. Court of Appeals for the District of Columbia, of August 11, 1975, appears at 14 I.L.M. 1247 (1975).]

References

1 Section 232 (b) provides in full:

“Upon request of the head of any department or agency, upon application of an interested party, or upon his own motion, the Secretary of the Treasury (hereinafter referred to as the ‘Secretary’) shall immediately make an appropriate investigation, in the course of which he shall seek information and advice from, and shall consuit with, the Secretary of Defense, the Secretary of Commerce, and other appropriate officers of the United States, to determine the effects on the national security of imports of the article which is the subject of such request, application, or motion. The Secretary shall, if it is appropriate and after reasonable notice, hold public hearings or otherwise afford interested parties an opportunity to present information and advice relevant to such investigation. The Secretary shall report the findings of his investigation under this subsection with respect to the effect of the importation of such article in such quantities or under such circumstances upon the national security and, based on such findings, his recommendation for action or inaction under this section to the President within one year after receiving an application from an interested party or otherwise beginning an investigation under this subsection. If the Secretary finds that such article is being imported into the United States in such quantities or under such circumstances as to threaten to impair the national security, he shall so advise the President, and the President shall take such action, and for such time, as he deems necessary to adjust the imports of such article and its derivatives so that such imports will not threaten to impair the national security, unless the President determines that, the article is not being imported into the United States in such quantities or under such circumstances as to threaten to impair the national security.”

Section 232 (c) of the Act, 19 U. S. C. § 1862 (c) (Supp. IV) provides the President and the Secretary of the Treasury with guidance as to some of the factors to be considered in implementing §232 (b). It provides:

“For the purposes of this section, the Secretary and the President shall, in the light of the requirements of national security and without excluding other relevant factors, give consideration to domestic production needed for projected national defense requirements, the capacity of domestic industries to meet such requirements, existing and anticipated availabilities of the human resources, products, raw materials, and other supplies and services essential to the national defense, the requirements of growth of such industries and such supplies and services including the investment, exploration, and development necessary to assure such growth, and the importation of goods in terms of their quantities, availabilities, character, and use as those affect such industries and the capacity of the United States to meet national security requirements. In the administration of this section, the Secretary and the President shall further recognize the close relation of the economic welfare of the Nation to our national security, and shall take into consideration the impact of foreign competition on the economic welfare of individual domestic industries; and-any substantial unemployment, decrease in revenues of government, loss of skills or investment, or other serious effects resulting from the displacement of any domestic products by excessive imports shall be considered, without excluding other factors, in determining whether such weakening of our internal economy may impair the national security.”

2 See Cabinet Task Force on Oil Import Control, The Oil Import Question 128 (1970).

3 Under President Nixon's plan, motor gasoline was scheduled to reach its maximum fee of 63 cents on May 1, 1975. App., at 97. 4 The proclamation did not alter the schedule by which exemptions from the first-tier fees were not to be eliminated until 1980.

5 The supplemental fee increases scheduled to go into effect in March and April were twice deferred. See Pres. Proc. 4355, 40 Fed. Reg. 10437 (1975); Pres. Proc. 4370, 40 Fed. Reg. 19421 (1975). While the $2 fee finally went into effect on June 1, 1975, Pres. Proc. 4377, 40 Fed. Reg. 23429, it was. never increased to $3. Indeed, on January 3, 1976, President Ford eliminated the $2 fee. Pres. Proc. 4412, 41 Fed. Reg. 1037. See n. 8, infra. 6 The States joining in the suit together with their governors were Connecticut, Maine, Massachusetts, New Jersey, New York, Pennsylvania, Rhode Island, and Vermont. The State of Minnesota intervened as a plaintiff after the complaint was filed and is also a respondent here.

7 The 10 utility companies are Algonquin SNG, Inc., New England Power Co., New Bedford Gas and Edison Light Co., Cambridge Electric Light Co., Canal Electric Co., Montaup Electric Co., Connecticut Light and Power Co., Hartford Electric Light Co., Western Massachusetts Electric Light Co., and Holyoke Water Co.

8 Subsequent to our granting certiorari, the President signed the Energy Policy and Conservation Act of 1975, Pub. L. 94-163, S9 Stat. 871. The Act is aimed at encouraging domestic oil production by gradually decontrolling the price of domestically produced crude oil. On January 3, 1976, indicating that “the purposes of the supplemental [oil import license] fee” will be served by the Act, the President announced the elimination of the supplemental fees imposed by Presidential Proclamation 4341. Pres. Proc. 4412, 41 Fed. Reg. 1037. He did not, however, eliminate the “first-tier” fees originally imposed by Presidential Proclamation 4210. Since respondents seek to enjoin the first-tier as well as the supplemental fees, the question here whether §232 (b) grants the President authority to impose license fees remains a live controversy.

9 Respondents' suits are not barred by the Anti-Injunction Act, 26 U. S. C. §7421 (a), which in relevant part provides that “no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court by any person … .” The Anti-Injunction Act applies to suits brought to restrain assessment of taxes assessable under the Internal Revenues Codes of 1954 and 1939. 26 U. S. C. §§7421 (a), 7851(a)(6)(A), 7851(a)(6) (C)(iv). The license fees in this case are assessed under neither Code but rather under the authority conferred on the President by the Trade Expansion Act of 1962, as amended by the Trade Act of 1974. The fees are therefore not “taxes” within the scope of the Anti-Injunction Act.

10 Respondents rely on our decision in National Cable Television Assn. Inc. v. United States, 415 U. S. 336 (1974), to support therr delegation doctrine argument. But we find that case clearly distinguishable from the one before us today. In National Cable Television, we held that the fees to be imposed on community antenna television systems should be measured by the “value to the recipient” even though the language of the general statute allowing fee-setting by federal agencies, 31 U. S. C. § 483 (a), permits consideration not only of “value to the recipient” but also of “public policy or interest served, and other pertinent facts.” Ibid. The Court's conclusion that the words of the last-quoted phrase were not relevant to the CATV situation was apparently motivated by a desire to avoid any delegation doctrine problem that might- have been presented by a contrary conclusion. 415 U. S., at 342. But what might be considered the open-ended nature of the phrase “public policy or interest served, and other pertinent facts” stands in contrast of § 232 (b)'s more limited authorization of the President to act only to the extent necessary to eliminate a threat of impairment to the national security, and §232 (c)'s articulation of standards to guide the President in making the decision whether to act. See n. 1, supra.

11 The amount of oil exempted from the “first-tier” license fees, see p. 5, supra, imposed in 1973 varies among five geographical districts within the Nation. See Pres. Proc. 4341, 40 Fed. Reg. 3965 (1975), Pres. Proc. 4210, 38 Fed. Reg. 9645 (1973). Respondents seize on this fact to argue that the “first-tier” fee schedule contravenes Art. I, §8, cl. 1, of the Constitution which requires that import duties be uniform throughout the United States. But that issue is not properly before the Court. Sustaining respondents’ uniformity clause argument would call not for invalidation of the entire license fee scheme, but only for elimination of the geographical differences in the exemptions allowed under it. This would represent not an affirmance of the judgments below, which effectively invalidated the entire scheme and its implementing regulations, but rather a modification of those judgments. But since respondents filed no cross-petition for certiorari, they are at this point precluded from seeking such modification. See Mills v. Electric Auto-Lite Co., 396 U. S. 375, 381 n. 4 (1970).

12 See, e. g., Hearings on H. R. 1 before the House Committee on Ways and Means, 84th Cong., 1st Sess., 1006 (analytical balance industry), 1264 (petroleum industry) (1955); Hearings on H. R. 1 before the Senate Committee on Finance, 84th Cong., 1st Sess., 602 (lead and zinc mining industry), 721 (coal mining industry) (1955).

13 The Symington amendment is currently codified in somewhat modified form at 19 U. S. C. § 1862 (a).

14 In contrast to the Senate Committee on Finance, the House Committee on Ways and Means concluded that the Symington amendment was adequate to deal with any potential threats to the national security posed by foreign imports. H. R. Rep. No. 50, 84th Cong., 1st Sess., 44 (1955).

15 A separate portion of the Neely amendment would have placed quotas on petroleum imports. 1955 Senate Hearings, at 1033.

16 Unlike the Neely amendment, see n. 15, supra, the Byrd- Millikin amendment did not single out any named industries for protection by quotas.

17 Differing with the Court of Appeals, we do not believe that the fact that Senator Millikin represented a State that might have benefited from an expansive 'reading of the statute “blur[s] [the] probative value,” 518 F. 2d, at 1058, of his explanation. Many if not most pieces of legislation are sponsored by Members of Congress whose constituents have a special interest in their passage, but we have never let this fact diminish the weight we give a sponsor's statements.

18 Moreover, Senator Byrd's reference in the above-quoted exchange to the power of the President under the amendment “to impose a quota or to reduce the imports,” 101 Cong. Rec. 5297 (1955), also suggests that he understood that power to extend beyond the imposition of quotas. See Note, 89 Harv. L. Rev. 432, 435 n. 31 (1975).

19 The Court of Appeals characterized Senator Bennett's remarks as going to “the entire bill and other existing laws.” 518 F. 2d, at 1057. Our examination of the context of his remarks persuades us, however, that they were more probably made in specific reference to the Byrd-Millikin amendment.

20 A copy of the Morgan letter was also sent to Senator Byrd, Chairman of the Senate Committee on Finance. See 101 Cong. Rec. 8162 (1955).

21 As finally enacted the amendment provided:

“In order to further the policy and purposes of this section, whenever the Director of the Office of Defense Mobilization has reason to believe that any article is being imported into the United States in such quantities as to threaten to impair the national security, he shall so advise the President, a’nd if the President agrees that there is reason for such belief, the President shall cause an immediate investigation to be made to determine the facts. If, on the basis of such investigation, and the report to him of the findings and recommendations made in connection therewith, the President finds that the article is being imported into the United States in such quantities as to threaten to impair the national security, he shall take such action as he deems necessary to adjust the imports of such article to a level that will not threaten to impair the national security.”

22 We are not unmindful that, as respondents point out, much of the congressional debate referred to the Byrd-Millikin amendment in the context of giving the President the power to impose import quotas. See, e. g., 101 Cong. Rec. 5572 (1975) (remarks of Sen. Humphrey); id., at 5582, 5584 (remarks of Sen. Douglas); id., at 5593 (remarks of Sen. Monroney). But nowhere do the congressional debates reflect an understanding that under the amendment the President's authority was to be limited to the imposition of quotas. In light of this fact, we feel fortified in attaching substantial weight to the positive indications discussed above that the authority was not so limited.

23 Foreign Trade Policy, Compendium of Papers on United States Foreign Trade Policy Collected by the Staff for the Subcommittee on Foreign Trade Policy of the House Ways and Means Committee, 643 (1957).

24 Indeed, while under the 1955 provision the President was authorized to act only on a finding that “quantities” of imports threatened to impair the national security, the 1958 provision also authorized Presidential action on a finding that an article is being imported “under such circumstances” as to threaten to impair the national security. Pub. L. No. 85-686, 72 Stat. 678. See pp. 12-13, supra.

* [Reproduced from U.N. Economic and Social Council, Official Records, Sixty-first Session, Supplement No. 5 (May 1976). [Annex V, U.N. General Assembly Resolution 3514 (XXX) of December 15, 1975, has not been reproduced. It appears at 15 I.L.M. 180 (1976).] [O.E.C.D. documents concerning multinational enterprises, adopted by the Council Meeting at Ministerial Level on June 21 and 22, 1976, appear at I.L.M. page 961. ]