The Tariff Defeat

The administration and its online lackeys are binging on cope, but let there be no doubt that the Supreme Court decision is a big deal for Trump’s foreign policy:

The administration has explored alternative authorities without tipping its hand regarding the outcome of this case.

But there are reasons why the administration leaned into this particular tariff authority. 

Almost every other authority is starkly limited in terms of targets, sectors, or processes, meaning that no other tariff authority gives the Trump administration the authority to use tariffs as a tool of coercive foreign policy.

Section 301 tariffs, for example, require an extended investigation of the discriminatory practices employed by specific countries and can be imposed only in proportion to the harm. 

This means that they cannot, for example, be used to convince Thailand and Cambodia to stop fighting one another, or to convince Brazil to drop its prosecution of former President Jair Bolsonaro. 

Coercive diplomacy requires the flexibility to raise or lower tariffs depending on the target’s behavior. Sections 122 and 301 (giving the President broad authority to establish specific tariffs) lack that kind of flexibility, and it is unlikely that the administration can derive the needed flexibility from other statutes. 

Moreover, the Supreme Court’s decision suggested that it would have a dim view of further claims of executive authority over tariff policy. 

Section 122 and Section 301 can meet essentially none of the Trump administration’s stated goals for tariff policy, including the raising of significant revenue, the creation of diplomatic leverage, and the reshoring of American manufacturing. These authorities have insufficient flexibility to be usefully employed for coercive purposes, and they’re not large enough to raise much revenue or change patterns of investment. Indeed, pretty much every trade deal that Trump has negotiated is now completely fucked; without the plausible threat of tariff reprisal, there’s very little reason for South Korea et al to comply with the terms that they agreed to at the point of a gun.

But I suppose Trump can still bomb Iran.