Trump’s blatantly illegal tariffs

One consequence of the Supreme Court being so shamelessly in the tank for Trump is that he feels no need to even pretend that his unilateral tariffs are legal:

Let’s be clear: U.S. law does give the executive branch a lot of discretion to impose tariffs without additional legislation. It does this for a reason: Temporary tariffs were intended to serve as a political pressure-release valve that would make low tariffs emerging from international agreements sustainable. This worked well as long as we had responsible presidents; it has been a disaster under Trump. Still, he does have a lot of legal authority to set tariffs.

But that authority is by no means open-ended. Tariffs can be imposed only for specific reasons:

Section 201: Market disruption Basically, if a sudden import surge puts a U.S. industry in danger, temporary tariffs can be imposed to give the industry time to adapt

Section 232: National security Tariffs can be used to sustain industries we might need during international confrontations

Section 301: Unfair practices Tariffs can be used to offset, say, foreign export subsidies

Anti-dumping duties Tariffs can be imposed when foreign companies are selling below cost

International Economic Emergency The president has broad tariff-setting powers during an economic crisis

Trump has hugely abused all these justifications, especially the last. There is no economic emergency…

..But the Brazil tariff is somethjng else: It’s not about economics at all, it’s an attempt to interfere with another country’s politics. Who says so? Trump…

…That letter is basically a confession that he is imposing a tariff for non-economic reasons. And that’s not legally allowed.

Obviously, imposing tariffs in Canada based on a non-existent fentanyl exportation issue has no congressional authority either.

As I’ve said before, to rule these tariffs illegal doesn’t require any fancy theory of statutory interpretation — it’s just old-fashioned ultra vires. But it’s also significant that on multiple occasions the Roberts Court that the Biden administration lacked the statutory authority to set policy even when the statute unambiguously conferred this authority based on the theory that Congress would not actually delegate major policy changes to the executive.

Needless to say, if you’re betting that any previously announced legal rule will be Trumped you are probably going to win. But, as Krugman says, at a minimum make them do it — the more the Court is de-legitimized to non-Republicans the better in the long run.