Partners David Plotinsky and Ken Nunnenkamp spoke with Law360 about the lawsuit brought by US Steel and Nippon Steel against the federal government in the wake of President Biden’s order to block Nippon Steel’s planned acquisition of US Steel.
David said that the complainants face an “uphill battle,” as the deference of the courts “always goes to the executive branch and to the president, in particular on national security cases . . . which just makes the deck stacked in the government’s favor.”
Ken added that the relevant statute explicitly makes “actions taken” by the president “not subject to judicial review,” and that only constitutional due process challenges escape that limitation.
“The D.C. Circuit is unlikely to overturn the blocking order based solely on allegations of pre-determination or the appearance of a sham process. Substantial evidence of constitutional violations or procedural defects is normally required,” Ken said.