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Important questions from @loyaladvisor. 2 points. Congress gave ex ante consent to conclude int’l agreements under 232. That can help the US work with allies. That' s important b/c the first-mover here is the EU, which is moving forward with a carbon border adjustment. 1/x https://twitter.com/loyaladvisor/status/1298526084707880961
2: Regulating carbon-intensive imports as a threat to national security fits comfortably within the kind of nat sec considerations Congress authorized in 232 and the courts have sustained as constitutional. So I don't think we are urging a broader view of nat sec. 2/x
But (& here I am going a bit beyond our @lawfareblog piece) we do need a new paradigm on how to reform overly broad statutory delegations. As hard as it is to believe, the window on reforming 232, IEEPA, etc., w/ effect before 1/20/2025 has probably already closed. 3/x
W/o overrides or judicial enforcement of constitutional limits, POTUS must consent to any clawback of power by Congress. So realistically, any clawback is going to have to grandfather in the then-admin’s policies. 4/x
This is where Grassley landed before deciding 232 reform wasn’t going anywhere this year. It is probably where discussions of future reform would need to start to have a chance: w/ sunrise clauses that only apply after the next presidential election. 5/5
