Somin on Trump's New, Also Illegal Tariffs

Writing in the Boston Globe, Ilya Somin, who helped bring down Trump's IEEPA tariffs, explains why Trump's latest power grab would "undermine the constitutional system almost as much as the earlier tariffs did."

It's a relatively short piece, but I'll pass along two highlights.

First, the new Section 122 tariffs are illegal and Trump knows they are:

Shortly after the court's decision, Trump issued a proclamation invoking Section 122 of the Trade Act of 1974 to impose 10 percent global tariffs. The next day, he increased the rate to 15 percent -- though as of Tuesday, the administration implemented only 10 percent tariffs. Section 122 only permits tariffs for up to 150 days in response to "fundamental international payments problems" that cause "large and serious United States balance-of-payments deficits" or "an imminent and significant depreciation of the dollar," or are to cooperate with other countries in addressing an "international balance-of-payments disequilibrium."

As conservative legal commentator Andrew McCarthy explained in National Review, none of these legal preconditions to the use of Section 122 exist. Nor is the scheme part of some plan of international cooperation.

...

Trump's proclamation imposing the Section 122 tariffs cites trade deficits as a justification. But as the Trump administration itself argued in the IEEPA case, Section 122 does not apply to trade deficits. In fact, that is one reason why the administration wanted to use IEEPA to impose the tariffs. [links omitted, bold added]

Second -- and my best guess as to why the new tariffs are "almost" as bad as the old -- is that there is a numeric limit of 15% in Section 122.

That said, while 15% is lower than some of Trump's IEEPA tariffs, it isn't really much of a limit, given how loosely Trump is interpreting the law -- on top of blatantly ignoring the fact that the required conditions for using it haven't even been met:

Justice Neil Gorsuch's concurring opinion in the IEEPA case also relied on the nondelegation doctrine, which limits the extent to which Congress can delegate its authority to executive discretion. The limits of delegation are far from clear. But the Supreme Court held last year that a delegation of authority to impose taxes or fees must have a "floor" and a "ceiling" and that the degree of "guidance" required from Congress is greater "when an agency action will 'affect the entire national economy' than when it addresses a narrow, technical issue." The power to impose 15 percent tariffs -- the highest tariffs since the disastrous Smoot-Hawley tariffs that exacerbated the Great Depression -- is unquestionably one that affects the "entire national economy." And Trump's permissive interpretation of the law would let him impose those rates at almost any time. [link omitted, bold added]

As Somin indicates, the new tariffs will likely be challenged soon. It will be interesting to see if and when the courts enjoin them, given the fact that companies already feel the need to sue to recover the money this Administration looted from them last time.

-- CAV

P.S. I hear Trump bloviated/demonized immigrants/tossed red meat to his base last night. The lengthy transcript is here for anyone who is interested. I read a few sections, and it looks to be about what one would expect.

To wit, Trump asked for another participation ribbon after casting himself as the one thing standing between us and doom: I've always wanted the Congressional Medal of Honor, but I was informed I'm not allowed to give it to myself...

This loser -- whom congressional Republicans refuse to corral -- just cannot allow anyone else, even an actual winner, enjoy the limelight for even a few seconds.