In Sweeping Arguments, GPX Argues That CVD Law Is Unconstitutional

摘要

In a brief filed for GPX International Tire Co. late last week, lawyers for the Chinese tire maker argued that a law enacted earlier this year that retroactively gave the Department of Commerce the authority to impose countervailing duties (CVDs) against non-market economies (NMEs) is unconstitutional, for three reasons. First, they argued that the retroactive application of the CVD authority back to Nov. 20, 2006 - contained in Section 1(b) of the law - violates a clause in the Constitution that prohibits Congress from passing laws that retroactively apply a penalty to actions that were not subject to a penalty at the time they were committed. Second, they contended that the retroactive application violates the "due process" clause contained in the Fifth Amendment. This is because, among other things, the six-year retroactive reach of the law is so long that importers affected had no possible way of knowing it would affect them when they brought merchandise into the country. Third, they claimed that the retroactive application violates the equal protection guarantee that has typically been read by courts into the Fifth Amendment's due process clause. This is because the law, by having two different effective dates for measures affecting exporters from NMEs, singles out a select group of companies for specific penalties to which no other group is subject.