[mangoman]

I'm not a lawyer or even close to it, but why wouldn't the trump admin use the tariff act of 1930? quote:

"Whenever the President shall find as a fact that any foreign country places any burden or disadvantage upon the commerce of the United States by any of the unequal impositions or discriminations aforesaid, he shall, when he finds that the public interest will be served thereby, by proclamation specify and declare such new or additional rate or rates of duty as he shall determine will offset such burden or disadvantage, not to exceed 50 per centum ad valorem or its equivalent, on any products of, or on articles imported in a vessel of, such foreign country"

it does cap it at 50%, but I mean it seems like a much easier way to justify the tariff. is there something else about it that isn't as practical (other than being almost 100 years old)

[aiforecastthway]

> why wouldn't the trump admin use the tariff act of 1930?

Probably because they knew it'd be a losing argument.

The court that authored this slip opinion would be unlikely to be persuaded by such an argument, for two reasons.

First, the opinion spends several pages applying the non-delegation and major questions doctrine. Based upon that discussion, I am pretty confident that this court would've found your interpretation of the Tariff Act of 1930 to be an unconstitutional delegation of congressional power. A similar question was asked in the Nixon admin; grep for "Yoshida II" in the PDF.

Second, even if your interpretation of the Tariff Act of 1930 were found to be constitutional by this court, the argument you suggest would still hit a brick wall.

Around page 35, the court cites the President's executive order in finding that the WaRTs are addressing a balance-of-payments issue. The court then notes that Congress specifically delegated narrower presidential authority for actions addressing balance-of-payments deficits. So even if the president were allowed broad emergency powers, and were allowed broad discretion in defining what emergency means, that finding would be irrelevant, because Congress has specifically curtailed the delegation of authority to the President in the case of tariffs addressing balance-of-trade issues.

Specifically, the opinion notes that Section 122 of Trade Act of 1974 limits Presidential authority to response to balance-of-payments problems, such as "a 15 percent cap on tariffs and a maximum duration of 150 days".

The conclusion also specifically addresses your question about emergency powers: "Congress’s enactment of Section 122 indicates that even “large and serious United States balance-of-payments deficits” do not necessitate the use of emergency powers and justify only the President’s imposition of limited remedies subject to enumerated procedural constraints."

(These are not my opinions; I'm just applying the legal reasoning in the slip opinion to your question.)

[aiforecastthway]

Update: on appeal, the government is sticking to its original argument (see page 15 of the motion). So it appears that on appeal the government continues to believe the path of least resistance does not pass through the 1930 Act argument about which OP is asking.

[wlesieutre]

He would have to convince the courts that I don't like having a trade deficit with anyone somehow means our trading partners are "placing a burden or disadvantage upon the commerce of the United States by any of the unequal impositions or discriminations aforesaid"

[EasyMark]

Right he's claiming that a trade deficit is the same thing as a tariff, and he will get virtually only get cranks who will be his stooge to try and prove it in court and judges will laugh at them, because the two judges I know actually have a pretty good grasp on basic math and econ 101.

[mangoman]

I don't think it requires the courts to agree - just that there's a burden or disadvantage and that it's in the "public interest" which seems like a pretty low bar to make up a story that sounds plausible. i think the idea that a trade deficit is a disadvantage is kinda brain dead, but it's plausible sounding enough to argue in court. throw in unequal tariff rates and it seems like an easier win than the IEEPA's emergency justification.

[ajross]

> I don't think it requires the courts to agree

This is misunderstanding civics. Laws are not algorithms. All laws must be interpreted. The government organ responsible for interpreting laws is the judiciary, definitionally.

It's not like there's a condition in a law saying "get the courts to agree". It's that there is a disagreement (among parties with standing) about what the law means. And so they fight about it in court, which is why we have courts.

[JCattheATM]

> It's that there is a disagreement (among parties with standing) about what the law means.

IMO that's being awfully generous.

[irjustin]

> I don't think it requires the courts to agree

Eventually the courts have to agree/disagree if someone starts challenging it up the chain.

[thaumasiotes]

Technically they don't. They can say, for example, that the burden placed on commerce is a political question. That would be a declaration that they agree with the government, which looks like agreeing that a burden exists right now, but automatically switches positions whenever the administration does.

[tptacek]

They could say that, but they won't, because "unequal impositions or discriminations aforesaid" is a straightforwardly justiciable question. Deciding whether things are "unequal" or "discriminatory" is almost exactly what courts are for.

[margalabargala]

Nearly every country that Trump tariffed does have some sort of tariff on the US. Canada has a sizable dairy tariff, for example.

Whether that dairy tariff is particularly onerous on the US, worth antagonizing our closest ally for, that would be the political question, but certainly it's definitionally unequal.

[lolinder]

"Aforesaid" is a very specific word that means that the "unequal impositions or discriminations" refers back to specific concepts previously referenced in the law. He can't (legally) just invent his own interpretations for what "unequal impositions" and "discriminations" entails, he has to convince a court that the specific actions he's retaliating against are covered by the "aforesaid" definitions.

Here's the complete text [0]. The act authorizes imposition of tariffs on any country that:

> Imposes, directly or indirectly, upon the disposition in or transportation in transit through or reexportation from such country of any article wholly or in part the growth or product of the United States any unreasonable charge, exaction, regulation, or limitation which is not equally enforced upon the like articles of every foreign country; or

> Discriminates in fact against the commerce of the United States, directly or indirectly, by law or administrative regulation or practice, by or in respect to any customs, tonnage, or port duty, fee, charge, exaction, classification, regulation, condition, restriction, or prohibition, in such manner as to place the commerce of the United States at a disadvantage compared with the commerce of any foreign country.

This is pretty specific. The tariffs/customs/dues/whatever don't even have to be unfair relative to what the US charges on that country's imports into the US, it's specifically targeting cases where a foreign country discriminates against US trade over and beyond the dues it charges on other countries' trade.

It'd be very difficult to prove that discriminatory treatment for each and every one of the 180+ countries caught up in Trump's tariffs.

[0] https://www.law.cornell.edu/uscode/text/19/1338

[disgruntledphd2]

And given that most trading partners are members of the WTO then the kind of behavior covered here would be covered by the most favored nation clauses.

[Terr_]

> Trump's tariffs.

Republican tariffs, they're complicit. Literally every single Republican in the House voted to shield Trump's "national emergency" [0] from being challenged as invalid.

[0] The National Emergency of... a relatively small amount of fentanyl seized at the Canadian border.

[genewitch]

The amount of fentanyl (just fent) siezed through April of this year since January was enough to kill 700,000 people. I guess you can disbelieve the story that car part vsndors were trafficking fentanyl, but it is a problem.

[StackRanker3000]

Between 2022 and 2024, 0.1% of all fentanyl seizures were at the northern border with Canada, vs ~99% at the border with Mexico. There’s also an (equally small, relatively speaking) reverse flow of fentanyl into Canada from the US. Not to mention that fentanyl trafficking is completely orthogonal to tariffs, except that the former is used as an excuse to utilize the latter to bully an ally.

[wqaatwt]

Yeah the much higher volume of fentanyl going FROM the US TO Canada is a huge issue. Other way around? Not so much in comparison.

[lerchmo]

Enough to kill is a meaningless metric.

[mineshaftmisgui]

The political machine learns quickly, the previous administration used the Covid emergency declaration as a pretext to cancel student debt. Both sides have turned to extend the reaches of the checks and balances instead of reining them in. This is the root cause.

[XenophileJKO]

This still seems like a very low bar. If the country has ANY trade treaty with someone else that has trade advantage, than it would appear like that fits the letter of the law.

[aetherson]

We have most favored nation status with most other countries, so they generally don't have any other nation that is getting better terms than we do. That's the point of the WTO.

[skissane]

> We have most favored nation status with most other countries, so they generally don't have any other nation that is getting better terms than we do. That's the point of the WTO.

However, MFN status is full of exceptions. For many countries, the US could plausibly argue that they are being discriminated against despite having MFN status due to one of the exceptions to it

[thaumasiotes]

So, they need to argue that the foreign countries' practice imposes a disadvantage in fact on the commerce of the USA compared with the commerce of any foreign country? They already have argued that; it was headlined in Trump's first announcements.

[tptacek]

Any business impacted by the tariffs will have standing to go to federal court and argue that trade practices accepted for a century by legislatures and administrations of both parties do not constitute "unequal impositions" under the intended meaning of the statute.

[thaumasiotes]

They'd have to argue something other than that. There could be a standing regulation that says "Ships carrying any American goods must pay 30% higher docking fees"; if that had been accepted for a century, it would still be a slam dunk case of "unequal impositions".

[skissane]

> Discriminates in fact against the commerce of the United States, directly or indirectly, by law or administrative regulation or practice… in such manner as to place the commerce of the United States at a disadvantage compared with the commerce of any foreign country.

I think the administration would find it easier to prove this than you think. They just have to find some regulation which they claim disadvantages the US compared to other countries. Given most countries have thousands of pages of regulations, it likely isn’t hard to find something in there that they can argue puts the US at a disadvantage-especially since what really matters is not whether it actually does, rather whether they can convince a court that it does

Real example: the US claims Australia bans US beef, Australia insists it is allowed. I believe the real problem is this-Australian regulations say US beef is allowed if the cattle are born in the US, raised in the US, slaughtered in the US… and the problem is the US cattle industry has such poor record-keeping, they intermingle US-born cattle with live cattle imports from Canada and Mexico and can’t produce the necessary paperwork to prove a shipment of beef is purely US-grown and hasn’t been mixed with beef from non-US origin cattle

Now, there is no reason in principle why the US cattle industry couldn’t improve their record-keeping to the point that it meets Australian regulations. But that would cost money and be politically unpopular-so instead US politicians just spread the rather misleading claim that “Australia bans US beef”. What really matters legally, is not the reasonableness of the claim, it is whether they can get a US judge to accept it-and quite possibly they could

And there’s probably several other cases where US companies can’t export their products to Australia because they aren’t willing to comply with Australian regulations. And likely many similar stories for other countries too. And if DOJ lawyers try to argue these cases fit under the legislation you are citing, IANAL but I think they’d have decent odds of success

> it's specifically targeting cases where a foreign country discriminates against US trade over and beyond the dues it charges on other countries' trade.

But, in this Australia case, all they have to do is find another country which can export beef to Australia because it does comply with these regulations, and there is their argument that Australia discriminates against the US. Should it matter legally that these regulations are reasonable and not intentionally discriminatory and US inability to comply is due to US unwillingness to pay for the reforms necessary to do so? I think it should, but entirely plausible that a judge decides it shouldn’t

EDIT: to be clear, I think these tariffs are pretty stupid-but whether something is stupid is a separate question from whether courts will uphold it. Many courts will uphold a lot of things which you or I know to be stupid

[thaumasiotes]

> They just have to find some regulation which they claim disadvantages the US compared to other countries.

Well, sort of. The threshold is much lower than that; the law is explicit that no regulation is necessary:

>> by law or administrative regulation or practice

[awesome_dude]

Yeah - the tariffs imposed on the islands with little to no population are definitely because nobody buying anything is blame for the fact they have a surplus

[skissane]

That was stupid but also practically irrelevant-if an uninhabited territory has zero exports, you can set the tariff as high as you like, with no exports nobody is going to pay it. To be clear, I don’t agree with these tariffs and think they are a mistake, but I think we should focus on their real world harms not a silly administrative error

We know how it happened: Heard and McDonald Islands is an uninhabited Australian territory off the coast of Antarctica. In the 19th century, it was inhabited by sealers for an extended period (mostly Americans, some Australians too)-but they left after hunting the seals to extinction. In the 20th century it became a nature reserve, although it saw multi-year occupation by scientific research bases. Since the 1990s, no humans have been there except for brief visits; apparently nobody has been there in person for over a decade. It is illegal to come ashore without permission from the Australian government, and their policy is to almost always refuse permission (with rare exceptions for scientific research).

Yet despite all this, ISO 3166-1 gave it a country code, HM. And US government databases ended up showing imports from it, almost certainly due to data entry errors, the imports having really come from somewhere else. But it appears nobody was paying attention, so it ended up as a tiny trade deficit in official US trade statistics. And then the Trump administration mindlessly applied the rule “IF official US trade statistics show a deficit THEN impose tariff”. And still nobody noticed. And then after they publicised it, somebody did, and they were widely mocked for the mistake, and I believe this specific tariff has since been rescinded.

Most likely HM was actually a typo for Hong Kong (HK) or Honduras (HN)-adjacent keys on the keyboard. Or maybe the M is correct and the H is the typo, in which case it could easily have been The Gambia (GM) or Bermuda (BM) or Jamaica (JM)-also adjacent keys

Australia has another uninhabited territory (Ashmore and Cartier Islands), and another near uninhabited (Coral Sea Islands, staffed by a tiny rotating crew of government employees)-but, for whatever reason, ISO never gave either its own country code, [0] so this couldn’t have happened to them. (Likewise, Australia claims a big chunk of Antarctica, a claim which most countries-US included-don’t recognise-so the Australian Antarctic Territory doesn’t get its own ISO code, it gets subsumed under Antarctica’s, AQ.)

[0] I guess the reason may be land area - Ashmore and Cartier Islands have a land area of slightly over a square kilometre, less than a square mile; Coral Sea Islands have a land area of 3 km^2, which is slightly over one square mile; by contrast, Heard Island is 368 km^2 (142 sq mi). ISO generally resists giving codes to uninhabited territories unless they contain significant land

[nananahehheh]

Nah like they said they have to show it meets an existing definition, not just make whatever claim they want that appeals to some random model or sense of injustice

[boroboro4]

> It'd be very difficult to prove that discriminatory treatment for each and every one of the 180+ countries caught up in Trump's tariffs.

To be frank they will need to do this to 20, maybe 30 countries to cover most of it (money wise).

[KPGv2]

> just that there's a burden or disadvantage

You're omitting a key clause: a burden or disadvantage . . . by any of the unequal impositions or discriminations aforesaid

The "unequal impositions aforesaid" are:

1. a country that imposes duties/tariffs on the US but "is not equally enforced upon the like articles of every foreign country"

2. discriminates "in such manner as to place the commerce of the United States at a disadvantage compared with the commerce of any foreign country"

So the law only gives authority for retaliatory tariffs when the US is specifically being targeted.

[Aurornis]

> think the idea that a trade deficit is a disadvantage is kinda brain dead, but it's plausible sounding enough to argue in court.

If you think it’s a terrible argument, why do you think the courts would think otherwise?

[hcknwscommenter]

That is a fundamental misunderstanding of how the judicial, legislative, and executive branches are set forth in the constitution. The co-equal branches are supposed to check and balance each other. Merely making up a "story that sounds plausible" but is in fact "brain dead" should not be enough for the courts. That should be such an obviously losing argument that the executive is immediately injunction to cease while the court case proceeds and eventually definitively determined to be acting illegally.

[vintermann]

"should" carries a lot of weight here.

[tptacek]

I think that's directionally true in this case but not generally true: powers delegated to the executive branch by the Constitution can indeed allow the President to make up complete bullshit and largely avoid judicial scrutiny (at least with a conservative SCOTUS that believes in unitary executive power).

(Case in point: Trump's travel ban last term).

[_heimdall]

> largely avoid judicial scrutiny (at least with a conservative SCOTUS that believes in unitary executive power).

Has the supreme court been refusing to hear an unusual number of cases against Trump.

I know the common feeling is that they have been siding with him more than usual, but that isn't avoiding scrutiny.

[kelnos]

> i think the idea that a trade deficit is a disadvantage is kinda brain dead, but it's plausible sounding enough to argue in court.

Argue, perhaps, but ultimately a court could decide that no, it's not a disadvantage. And that seems to be exactly what the court has done here?

[palmotea]

> He would have to convince the courts that I don't like having a trade deficit with anyone somehow means our trading partners are "placing a burden or disadvantage upon the commerce of the United States by any of the unequal impositions or discriminations aforesaid"

Why? If the GP quoted the law correctly and the plain-language reading is also the legal one, it's all about what the president finds as fact. I don't see how that language gives the courts space to second-guess the president's findings.

[heylook]

This is covered in the ruling. The courts get to decide whether the executive's use of delegated legislative power (levying taxes) is both constitutional and within the bounds of the relevant legislation. They don't simply take the executive at their word, and in this case specifically there are several examples, such as the tariffs that are supposed to be about fixing fentanyl. Cited legislation requires a specific emergency justification, and the tariff has to meaningfully address the issue. The court rules that the justification of "it's suddenly a fentanyl emergency and making our own citizens pay additional tax will make China do something" isn't close to fitting within the statutory and constitutional framework.

[helsinki8]

"Finds as fact" isn't the same thing as imagines/thinks/claims.

Facts are still different than opinions, that statute doesn't give him unchecked power to declare any crazy idea as fact.

[reverendsteveii]

Facts are facts, indeed, but bact finding is determining what the facts of the situation are, and this law makes the president the one who finds the facts. This doesn't let him declare squares to be circles, but it does pretty clearly let him declare more or less arbitrarily that a trade agreement is, in fact, disadvantageous.

[ajross]

Or more formally: "findings of fact" are part of the purview of the judiciary, definitionally. As always wikipedia does a good job here: https://en.wikipedia.org/wiki/Trier_of_fact

[palmotea]

> Facts are still different than opinions, that statute doesn't give him unchecked power to declare any crazy idea as fact.

I don't know about the president, but IIRC, juries have a quite wide latitude decide what facts they find ("In Anglo-American–based legal systems, a finding of fact made by the jury is not appealable unless clearly wrong to any reasonable person", https://en.wikipedia.org/wiki/Trier_of_fact).

Saying "whenever the President shall find as a fact" seems like it's giving the president the authority to determine what the "facts" are, and not putting any conditions on how he does that or subjecting them to second-guessing.

[ajross]

No, it's precisely the opposite. The choice of that term isn't to empower the president, it's to clarify that such a decision is a "fact" in the legal sense and thus subject to judicial review. In point of fact the page you link says explicitly that courts (and not the executive branch) are the government organ responsible for determining facts.

[florbnit]

It’s so surreal that this has to be explained in this day and age.

[reverendsteveii]

"Whenever the president shall find" seems to establish Annoying Orange as the sole arbiter as to whether that satisfies the burden/disadvantage clause. This admin has successfully argued much shakier positions than that in court. Hell, he once argued successfully that he broke the law and the law prescribes a punishment but that punishment doesn't apply because the law doesn't say who should administer it.

[paulddraper]

“Whenever the President shall find as a fact”

That’s the prerequisite to the lawful exercise of power.

[stogot]

> unequal impositions or discriminations

When it comes to china, this is definitely true. The rest of the world not so sure

[antris]

Huh? American and European CEOs voluntarily move manufacturing to China, now everything gets made in China. And that's somehow China discriminating western countries?

[hyperadvanced]

I believe the reference here is that there are fairly protective trade policies in China, and they are similarly mercurial about what passes. See cases of IP theft, if you’re partial to IP as a concept (I’m not). They’re certainly not a laissez-faire paradise. Granted, merely terking our jerbs isn’t a good argument for slapping massive tariffs on them.

There’s probably a different thread on this but, TACO and the damage of having your own courts nullify the tariffs are a huge strategic L for the orange man.

[drivingmenuts]

You'd think, by this point, they'd realize if you don't want your IP stolen, don't send it to China. At least make them work for it, like everyone else.

[hyperadvanced]

It’s hard right? If you want market access, you fork over the designs so they can verify it’s not American spyware, then boom it’s stolen (message to be read by an AI made to sound exactly like a certain USA president)

[rayiner]

He doesn’t have to convince the courts of that. The President makes foreign policy, not the courts. As long as the President is plausibly exercising a foreign policy power Congress gave him, the courts don’t get to reweigh the evidence and decide for themselves whether the trade deficits result from other countries placing trade barriers or something else.

[wlesieutre]

Why does the law list specific conditions in which the president can apply the law if the president can apply it for any reason he wants?

Surely there's a mechanism through the courts for someone to challenge illegal tariffs on their imports if the president declares "There's a 50% tariff on everything because I woke up in a bad mood today and it's unfair of other countries to be doing that."

[rayiner]

> Surely there's a mechanism through the courts for someone to challenge illegal tariffs

What you're describing is the Marbury tail wagging the Article II dog. The focus of the Constitution is allocation of power. The focus isn't creating a system where courts micromanage how the other two branches of government exercise that power. Marbury therefore goes to great lengths to draw lines between an executive's "ministerial" actions, which courts can supervise, and those that involve "discretion," which courts cannot. Marbury thus says:

> [W]here the heads of departments are the political or confidential agents of the Executive, merely to execute the will of the President, or rather to act in cases in which the Executive possesses a constitutional or legal discretion, nothing can be more perfectly clear than that their acts are only politically examinable. But where a specific duty is assigned by law, and individual rights depend upon the performance of that duty, it seems equally clear that the individual who considers himself injured has a right to resort to the laws of his country for a remedy.

The Tariff Act provision here is a classic example of something that Congress has entrusted to the President's discretion. The statute says: "Whenever the President shall find as a fact that any foreign country places any burden or disadvantage upon the commerce of the United States by any of the unequal impositions or discriminations aforesaid..."

Insofar as the courts can properly review such actions, their rule is to determine whether the prerequisites for invoking the authority have been satisfied--namely, did the President make a finding? Here, the President did make a finding. At that point, the courts' jurisdiction gives way to the President's discretion. The courts don't get to decide whether the President's finding is correct, or even whether it makes sense. At that point, the act is "only politically examinable."

[whatshisface]

If that were the true intent of the law, it could simply say "whenever the President chooses," instead of detailing precisely what the president must, "find as fact." Even the administration believes this, as they chose the particular fig leaf of "reciprocity" to defend that the statue was being followed.

[rayiner]

Legally, there is a major distinction between whether an entity charged with making a finding as indeed done so, and whether that finding correctly reflects the actual facts.

This is not a novel concept. When courts review laws made by Congress, they don’t get to second guess Congress’s economic reasoning. Congress could ban interstate transportation of beer on Tuesdays. As long as the law was within Congress’s commerce power, courts don’t get to second guess the rationale for the law.

[Tadpole9181]

Except you're quoting a small part of a law, and conveniently lack the knowledge to understand that "aforesaid" means there's a definition to "unequal impositions or discriminations". These are quite literally spelled out, none of which are criteria met. Ergo, the president cannot simply declare himself King of the economy at will just because he wants to.

Which makes sense, since that would be uncomprehendingly stupid.

[davorak]

> id the President make a finding? Here, the President did make a finding. At that point, the courts' jurisdiction gives way to the President's discretion.

This seems incorrect

> cases in which the Executive possesses a constitutional or legal discretion

In this case though the laws wording would determine where the discretion starts and ends. "... whenever he shall find as a fact that such country—" so the president is limited by a.1 and a.2[1], the president was only granted discretion in under those proscribed limits.

So a find that says ~"neither a.1 or a.2 is occurring therefore I impose a tariff as president"(claiming no conditions to impose a tariff under the law are met but declaring a tariff anyway) seems reviewable by the court from your sources. Only having a finding is not enough, the finding has to follow the limits of discretion put forth by the law in question.

[1] https://www.law.cornell.edu/uscode/text/19/1338

edit to remove double negative

[rayiner]

The court’s power is limited to determining whether the President made a finding in the nature of the finding required by the law. What the court can’t do is then second guess that finding—analyzing it substantively to determine whether it is correct or not.

[JamesBarney]

"Whenever the President shall find as a fact that any foreign country places any burden or disadvantage upon the commerce of the United States by any of the unequal impositions or discriminations aforesaid..."

That quote is from the Tariff Act of 1930. The government didn't argue this was the authority for the presidents actions.

[worik]

> Here, the President did make a finding

That is very interesting. It assumes that the president is truthful

[rayiner]

It doesn’t! The relevant issue is allocation of power (who gets to make the finding), or the substantive merits of the finding itself.

[Aurornis]

> The President makes foreign policy, not the courts

The courts aren’t making foreign policy. That’s a strawman argument.

The President also doesn’t have unlimited powers. It’s President, not King or Dictator.

The President must act within the powers granted by law. The court has determined this act was outside of the law.

[k4shm0n3y]

No question the executive has had its powers extended beyond the original vision, but I don't often see the same criticism of the judiciary. Judges are more akin to a monarch than the US executive (courtroom is their kingdom), with very little recourse for ordinary citizens.

[heylook]

Except judges can't do anything proactively and are forced to rely on the executive to enforce their decisions and the legislative to fund them. Really, they're absolutely nothing like a monarch. Especially compared to the guy who appoints all the secretaries, commands the military, and decides foreign policy.

[davorak]

Complaints about "judicial activism", or complaining about "judges that go to far, have been blasted everywhere since the at least the 90s so more than my adult life, at least from what I can remember growing up in the middle of the USA.

[tptacek]

Hence the cases and controversies clause.

[tptacek]

No, setting tariffs is a regulatory and economic power, and even in a hard unitary executive model, the President doesn't have plenary power over tariffs. This is literally an enumerated power of Congress, which makes it hard for me to understand why you started down this path on this thread.

[rayiner]

That’s an argument that the Tariff Act of 1930 is unconstitutional, which is a different argument.

[tptacek]

No, it's an argument that your interpretation of the act is (pretty clearly) unconstitutional.

[rayiner]

I’d love to live in a world where non-delegation was such a robust doctrine. But “you can set tariffs if you find that other countries are being unfair” (paraphrasing) is a more than intelligible principle supporting Congress’s delegation.

[oivey]

The courts interpret the law, so in fact he does have to convince them that his interpretation is true.

[kelnos]

> He doesn’t have to convince the courts of that. [..] As long as the President is plausibly exercising a foreign policy power Congress gave him...

Sure he does. The various tariff-related acts don't give the president carte blanche to set tariffs whenever he pleases. The acts give him the power to enact tariffs under certain conditions. If the president cannot convince a court that "having a trade deficit" falls under one of those conditions, then a court should, very correctly, tell the president he cannot enact those tariffs.

> The President makes foreign policy

That's a rather simplified view of the president's constitutional powers; the reality is more complex, and in this case that complexity does matter.

[rayiner]

> The acts give him the power to enact tariffs under certain conditions

Right, but the “condition” in the law is that the President first makes a “finding” that other countries have engaged in unfair treatment. The president only needs to convince the court the finding has been made. But whether a trade deficit results from trade barriers or something else is a decision that Congress has delegated to the President to make.

[KPGv2]

> The president only needs to convince the court the finding has been made.

It's unclear to me if you think this is just a true statement of how Executive power works, or if you are arguing that the correct standard of review for a very restricted legislative delegation of authority is rational basis scrutiny.

[rayiner]

I don’t think even rational basis review applies here, because there’s no constitutional right or due process issue. Courts simply don’t get to supervise this particular arrangement on the substance.

[saghm]

The phrasing is "finds a fact" (emphasis mine), not "makes a finding". They need to convince the court that what they found is a fact, which means that it needs to actually reflect reality.

[rayiner]

That’s not how judicial review works. Even in the ordinary agency context when you’re talking about domestic issues rather than foreign policy, courts defer to fact findings of agencies.

[maxerickson]

“IEEPA does not authorize any of the worldwide, retaliatory, or trafficking tariff orders,” the panel of judges said in their order Wednesday.

https://www.cnn.com/2025/05/28/business/us-court-blocks-trum...

That seems to not agree with your "power Congress gave" characterization.

[sorcerer-mar]

How is taxing American importers "foreign policy?"

[boroboro4]

It does affect trade (setting tariff high enough basically equals to no trade policy for example) with those countries and hence it is foreign policy.

[KPGv2]

If that's true, then all criminal law in the US is foreign policy because the existence of laws restricts people's decision to visit the US to commit crimes.

Hell we don't even need to go that far afield: your logic implies all taxes are foreign policy, as they all affect foreign trade.

[boroboro4]

The policies you mention don’t target particular countries, and this is where the difference lies in my opinion. The part of the policies which is countries specific is in fact foreign policy.

[rayiner]

No, because criminal laws don’t have the primary function of influencing foreign countries.

Taxes can be for raising revenue, but they can also function as clubs for changing behavior. Cigarette taxes, for example, have the purpose of deterring people from smoking.

Tariffs similarly can serve as clubs against foreign countries. You might have a tariff on China to get them to change their domestic policies. In that capacity, the tariff is functioning as a foreign policy tool; the revenue generation is incidental.

[rayiner]

In the same way economic sanctions are foreign policy. The tax is just a tool to alter the US’s economic relationships with foreign nations.

[Terr_]

Exactly. The same nonsense-logic for collecting these taxes could be abused to bypass Congress and give away zillions of taxpayer dollars to anybody (including his own companies) that go: "I just bought lots of Trumpcoin to be patriotic, and I ultra-promise not to do business with Iran or Venezuela or whatever."

Aside: I recommend the phrase "import taxes" over "tariffs", because a disturbingly large portion of my neighbors still don't seem to understand WTF the latter really is.

[Izikiel43]

Taxing things is Congress' responsibility, not the executive branch.

[KPGv2]

> The President makes foreign policy, not the courts.

A tariff is not foreign policy. It is a tax levied on American companies.

[Marsymars]

It’s also levied on non-American companies. I still wouldn’t count it as foreign policy though.

[fakedang]

Used to be a time when Congress made foreign policy. Oh, how fast they grow up... (sheds tear)

[wredcoll]

Honestly I'm not sure that was ever true, but it is funny.

[eli_gottlieb]

Congress does have the exclusive power to declare war, but they've delegated that over the years with various authorizations for the use of military force or for police actions.

[fakedang]

Congress is responsible for all formal declarations of war. I think it was Truman who started the concept, but JFK who truly exploited it.

[eli_gottlieb]

Time to relitigate Marbury vs Madison, then? POTUS is currently in defiance of court orders on a number of issues, after all.

[wqaatwt]

In this specific case the congress is the one making trade policy (in non-emergency situations which obviously this is not..).

The congress never gave Trump the power to do this. Of course they didn’t refuse it either..

[rayiner]

The Tariff Act of 1930 reflects the duality between the President’s executive power to conduct foreign policy and Congress’s legislative power to set taxes.

Until the early 20th century, tariffs were the primary mechanism for raising federal revenue. So Congress viewed tariffs as a tax, within Congress’s purview. But the 1930 Tariff Act also recognizes that tariffs are also a tool of foreign policy, which is within the President’s purview.

[Electricniko]

Regulating commerce with foreign nations is also a specific enumerated congressional power in the commerce clause of article 1.

[kelnos]

Congress didn't delegate tariff power to the president absolutely. The executive branch still needs to make the case that the tariffs are being put into place for specific reasons that are covered by the specific ways that Congress delegated tariff power.

The court here seems to have decided the executive has not done that.

[SlightlyLeftPad]

Eventually, it may not matter what the courts think as their power is also effectively limited by the reduction of consequences for ignoring court orders.

Source: https://www.congress.gov/bill/119th-congress/house-bill/1/te...

SEC. 70302. RESTRICTION ON ENFORCEMENT.

    No court of the United States may enforce a contempt citation for 

failure to comply with an injunction or temporary restraining order if no security was given when the injunction or order was issued pursuant to Federal Rule of Civil Procedure 65(c), whether issued prior to, on, or subsequent to the date of enactment of this section.

[tptacek]

Further, Congress can't delegate tariff power to the President absolutely; any such delegation would be unconstitutional.

[SlightlyLeftPad]

Isn’t it actually more accurate to say that they _can_ delegate power and while unconstitutional, it remains in effect until challenged by the judicial branch?

[tptacek]

You can make that argument about literally anything, so it's not especially meaningful or worth noodling on in a thread.

[SlightlyLeftPad]

I disagree, it is worth talking about because the impacts of delegated decisions made impact real people in meaningful ways while those may or may not be challenged in court. To say a branch can’t delegate absolute authority is also a mischaracterization of reality. Assuming orders are challenged in the first place, it often drags on for many months or years leaving the impacts in effect until that concludes.

[mangoman]

Right. this whole episode is about foreign policy, why not use the act that is meant for it?

[bilbo0s]

Um..

Because 50% maximum.

How would that work when you want a 145% tariff?

[magicalhippo]

Apply it thrice, of course.

[jmyeet]

This idea that the president has unrestricted ability to set foreign policy is an invention of this particular administration. In truth, powers are split between the executive and legislative branches [1].

Most notably, only Congress can declare war, which has been a real sticking point in the last century and why, for example, the Korean War wasn't technically a war (it was a "police action") and why the Vietnam War wasn't either. The First and Second Gulf Wars and the War in Afghanistan at least had explicit war resolutions passed by Congress, however misguided.

Brown pelicans typically lay three eggs. Some bird species can employ "deferred incubation" such that even when eggs are born on separate days, the eggs will hatch at the same time. Brown pelicans don't do this so the chicks hatch 2-3 days apart each. The eldest gets fed more so there ends up being a size difference. What inevitably happens is the eldest two conspire to push the youngest out of the nest. If it falls out, the parents won't feed it and it will die. Then after awhile the oldest pushes and second out. 90%+ of the time only the eldest ever fledges.

Why did I tell this story? Because it basically mirros what's going on with our government. We have, at least theoretically, three branches of government that are meant to balance each other. There has been a conservative takeover of the executive and judicial branches such as to neuter the legislative branch. This Supreme Court has both stripped Congress of power (eg overturning Chevron) and empowered the presidency (eg the presidential immunity decision that had absolutely zero basis in anything; it was simply invented). They've invented doctrines to allow them to overturn basically anything Congress does (eg "major questions" and "historical tradition"). This is a coup d'etat and the end result of the 50+ year Republican Project.

What happens next, just like the pelicans, is the courts gets neutered. Conservatives now push the "unitary executive" philosophy, which is a fancy way of saying they want a dictator, not beholden to any courts or lawmkaing body. The second chick is getting pushed out of the nest. The administration is openly defying the courts on many matters (eg Kilmer Abrego Garcia) and this Supreme Court has given them the immunity to do that.

I, personally, think we are beyond the point of no return. Electoral politics cannot possibly fix this situation. At the same time, the American empire is decline. We are going to see firsthand waht a dying empire looks like and I guarantee you it won't be pretty.

[1]: https://www.cfr.org/backgrounder/us-foreign-policy-powers-co...

[wredcoll]

> Most notably, only Congress can declare war, which has been a real sticking point in the last century and why, for example, the Korean War wasn't technically a war (it was a "police action") and why the Vietnam War wasn't either.

I keep seeing this brought up as some kind of "gotcha" point, but those wars involved conscription and billions of dollars of additonal military funding, all of which was presumably approved by congress. I find it hard to imagine a congress that is approving a draft would be averse to signing a war declaration.

[jmyeet]

It's not a "gotcha". It's just objective fact. There were no war resolutions for Korea and Vietnam.

If anything it demonstrates a more recent trend where the executive oversteps its authority to engage in military action and to bypass Congress.

As for conscription, this was enabled by Congress in WW2 by "selective service" [1]. The administration maintains the authority to draft male citizens of a certain age into the military without explicit Congressional approval.

[1]: https://en.wikipedia.org/wiki/Conscription_in_the_United_Sta...

[nobody9999]

>It's not a "gotcha". It's just objective fact. There were no war resolutions for Korea and Vietnam.

Yeah. Not so much.

While the Korean conflict was not explicitly authorized by Congress, it was tacitly approved by Congress by passing several bills that both directly and indirectly appropriated funds to prosecute the Korean conflict.

That this wasn't followed up by a vote in Congress to make that official is definitely a constitutional issue, but one that SCOTUS did not address directly.

You're quite correct that Congress didn't declare war or provide explicit authorization for the use of military force. That said, it's not quite as cut and dried as you make it out to be.[0][1][2]

Congress gave the Executive branch explicit authorization for the use of military force in Vietnam with the Tonkin Gulf Resolution[3].

[0] https://constitution.congress.gov/browse/essay/artI-S8-C11-2...

[1] https://www.lawfaremedia.org/article/korea-war-powers-preced...

[2] https://en.wikipedia.org/wiki/Youngstown_Sheet_%26_Tube_Co._...

[3] https://en.wikipedia.org/wiki/Gulf_of_Tonkin_Resolution

Edit: To clarify, I'm not arguing that Congress was correct in not providing explicit authorization for the Korean conflict, nor am I arguing that the Kennedy and Johnson administrations shouldn't have gone to Congress sooner to obtain authorization ala the Tonkin Gulf Resolution. Rather, I'm pointing out that the situation was much more complicated than you make out WRT the Korean Conflict and that there was, in fact, explicit authorization from Congress for prosecuting the war in Vietnam.

[cwillu]

The gotcha is that, given the thing is described as a war by more or less everyone in the world, clearly the power to declare a “war” has little to do with the power to start or join wars.

[Aloisius]

> Most notably, only Congress can declare war, which has been a real sticking point in the last century

Sticking point? Where in the Constitution does it say a declaration of war is required to wage war?

We didn't have a literal declaration of war for the Quasi War (1798-1800), the First Barbary War (1801–1805), the Second Barbary War (1815), any of the many American Indian wars, etc. That clearly didn't seem to be a sticking point for George Washington, John Adams, Thomas Jefferson or James Madison.

[genewitch]

Chevron decision told Congress to do its fucking job and stop delegating it to the for-profit entities the regulations are supposed to apply to, unchecked.

The story of how it made it to the supreme court is a good one, about having to pay an inspector to ride on every fishing trip...

I don't see how this diminishes congressional power, unless you consider delegate count a sign of power.

[jmyeet]

This is a conservative talking point to justify stripping Congress of power.

The whole reason Chevron came into existence is because it's impossible for Congress to pass explicit regulations for every little thing as soon as it's needed. So agencies were instead given broad legislative mandates like "keep the water clean" or "manage fish stocks" because it was impossible to enumerate every circumstance.

So for 40 years through 7 presidents (4 Republican, 3 Democrat) with both parties controlling the House and the Senate at different times, Congress passed laws with Chevron in mind. Congress had the ability to roll back Chevron and declined to do so.

The backers of overturning Chevron know it's impossible. That's why they did it. It's just unadulterated greed to deregulate so companies can wantonly pollute the water and overfish without any sort or oversight, compliance and repercussions for slightly higher profits... temporarily. And when there's a mess that needs cleaning up, they'll get the taxpayers to pay for it.

[rayiner]

Filling in “details” was the conceit of Chevron, but that’s not how it was used in practice. The agencies were creating vast new programs from whole cloth and demanding that courts defer to their interpretation of the statute as allowing it. Moreover, it has the effect of making it impossible for the legislature to count on the executive actually honoring compromises and trade offs baked into the legislation.

[abduhl]

>> The whole reason Chevron came into existence is because it's impossible for Congress to pass explicit regulations for every little thing as soon as it's needed. So agencies were instead given broad legislative mandates like "keep the water clean" or "manage fish stocks" because it was impossible to enumerate every circumstance.

This misunderstands Chevron and the effect of its abandonment. Chevron stood for the proposition that the executive branch could generally interpret laws without judicial review (subject to a minimal standard which was nearly always met). What this meant in practice was that any agency could change its view on what the law means (and therefore change what the law is because courts were generally required to accept the new interpretation) whenever it wanted and that new view was binding law. This undermines two core principles of the American system: separation of powers (the judiciary says what the law is) and the rule of law (laws should be applied equally and consistently).

Eliminating Chevron returns us to the proper state of the law: the executive branch proposes a reading of the law, the other side proposes another, and an independent court considers both and states what the law is. And that’s the law going forward. It cannot be changed absent legislation. Congress passes a law, the judiciary says what the law is, and the executive executes it. If the executive wants to enforce a different law then it must get the legislative branch to pass that different law.

This is not a conservative talking point, it’s a talking point for anyone that thinks the President is not a king. It just seems like a conservative talking point to you because it was overturned during the Biden administration. Recall that Chevron came to be because of a Reagan administration interpretation.

Consider what the state of reality would be if Chevron remained good law today under the Trump administration. Trump’s interpretation of a statute would be what the statute says.

For example, 8 USC 1401 provides that “The following shall be nationals and citizens of the United States at birth: (g) a person born outside the geographical limits of the United States and its outlying possessions of parents one of whom is an alien, and the other a citizen of the United States who, prior to the birth of such person, was physically present in the United States or its outlying possessions for a period or periods totaling not less than five years, at least two of which were after attaining the age of fourteen years: Provided, That any periods of honorable service in the Armed Forces of the United States, or periods of employment with the United States Government or with an international organization as that term is defined in section 288 of title 22 by such citizen parent, or any periods during which such citizen parent is physically present abroad as the dependent unmarried son or daughter and a member of the household of a person (A) honorably serving with the Armed Forces of the United States, or (B) employed by the United States Government or an international organization as defined in section 288 of title 22, may be included in order to satisfy the physical-presence requirement of this paragraph. This proviso shall be applicable to persons born on or after December 24, 1952, to the same extent as if it had become effective in its present form on that date;”

Do you really want the Trump administration to be able to what any of the ambiguous terms mean in this provision? What do you think Trump’s interpretation of the “geographical limits of the United States” is? What about what “honorable service” means?

[jmyeet]

This is incorrect. Chevron deference wasn't giving the executive branch sole power to interpret ambiguous statutes as you claim (despite your scary example). The so-called Chevron deference doctrine was simply that the Supreme Court ruled (~40 years ago in the Reagan administration) that if an agency is responsible for administering a statute that's ambiguous, that agency's interpretation should be deferred to.

But the real problem comes in because 40 years of laws were written both both parties with Chevron deference in mind. Not only did Congress not take action to overrule Chevron, consistently for 40 years, they intentionally wrote ambiguous statutes to give agency's the power to interpret those statutes, mostly because enumerating every possible circumstance was impossible.

Take managing fish stocks. What fish stocks? When should fishing seasons be? What's the inspection mechanism? How are licenses and quotas issues? How are they enforced? How should all this be reported to the public, Congress and the president? What about fish stocks that border international waters? How should they be managed?

Chevron acknowledged what was already happening: it was impossible to write legislation that way. Congress didn't have the bandwidth to initially write it, let alone maintain it as circumstances change.

The Supreme Court (rightly) recognized that without Chevron deference it would be impossible to an agency manage anything because any ambiguities or any simply unofreseen gaps would be used to neuter the agency in the courts. It made it impossible to have such agencies and that's the whole point of overturning Chevron. The very wealthy don't want Fedearl agencies. The whole thing is a libertarian wet dream and over the coming years we'll see the consequences as the same people poison the water supply and the food supply, overfish alal fishing stocks, crash the economy through unregulated financial markets and so on.

[BeFlatXIII]

> I don't see how this diminishes congressional power

Congress is too incompetent to assert its power.

[AnimalMuppet]

The President and the courts didn't neuter Congress. Congress neutered itself.

Over the past several decades, Congress has been less and less able to pass legislation, less and less able to work with itself, eventually even unable to pass a budget (which is their most fundamental, basic duty). How many years of the last decade has Congress passed a budget? That would have been unthinkable 50 years ago.

Congress is broken, not because the President broke it, not because the courts broke it, but because party politics and the primary system broke it.

The President has ruled more and more by executive order, partly by overreach, and partly by necessity, because Congress can't or won't do their job.

I don't think that the courts stripped power from Congress by overturning Chevron. They stripped it from the executive branch.

[jmyeet]

The courts are mostly responsible for breaking Congress. Why? Citizens United. This is the case that decided "money equals speech" and allowed for unlimited dark money to be spent buying Congress.

[AnimalMuppet]

I would say that plus Roe v. Wade. That created for people to be ideologically interested in controlling the Supreme Court. And Congress was a way to get that. So Roe v. Wade created the reason, and Citizens United created the means.

[BeFlatXIII]

Overturning Chevron isn’t stripping Congressional power so much as it’s forcing Congress to explicitly use its power not to lose it. De facto, it does strip Congressional power, but that’s solely because Congress is too incompetent to fulfill its role.

Likewise, it also strips Executive power. Executive agencies can no longer fill in the obvious gaps in what Congress passed.

[jiggawatts]

Well said! I also would like to note that something similar happened during the slow decline of the Roman Empire, where it morphed from a representative republic with a powerful senate to a dictatorial regime with one or at most three men in charge.

The only solace one can take from that historical precedent is that the full collapse took centuries, far longer than our lifetimes.

Our grandchildren may live in a time of the New American Empire that is ruled by an Emperor Trump III. It'll have a strange tradition of emperors painting their faces orange in the same manner as Roman emperors had a tradition of wearing purple robes.

[SlightlyLeftPad]

I think what’s actually happened in reality is that Congress intentionally gave the President unrestricted authority over both of these things and with that, immunity, or in other words the power to ignore court rulings.

[aaronharnly]

I’m also none of those things, but that section of Smoot-Hawley appears to apply when a foreign country imposes such burdens on the United States * which is not equally enforced upon the like articles of every foreign country.” So not just that it treats the US differently than itself, but that it treats the US differently than any other country.

[aetherson]

People on this thread badly need to familiarize themselves with most-favored-nation/permanent normal trade relations. There seems to be a contingent who believe that there are a mess of separately negotiated tariffs between each country.

But there aren't. The WTO generally put that system away and now to first approximation everyone gets the same deal as everyone else.

[curt15]

> (other than being almost 100 years old)

Age alone shouldn't disqualify a law. The law above all other laws, aka the Constitution, is more than 200 years old.

[aiforecastthway]

In this case, age is not what disqualifies the law. Rather, what renders the law inapplicable to this situation is some combination of:

1. another statute that super-cedes the 1930 statute because it specifically limits Presidential emergency powers in the context of balance-of-trade issues. See around p. 35 of the slip opinion.

2. The Constitution itself, which limits Congress's ability to cede its own powers.

[wredcoll]

People love to say things like this, but much like electing an 80 year old president, it should perhaps be a trigger for a more thorough evaluation.

[iamtheworstdev]

i don't think anyone would disagree that a law can "age out", but simply ignoring it because it's old versus revisiting it's intent and modifying/removing/etc are two very different strategies.

[lovich]

The Constitution as it stood 200 years ago is not the Constitution as it stands today.

Comparing an unmodified law based on age is not the same as comparing a mutable documents original age

[Aloisius]

Unmodified law? The law in question has been amended many, many, many times in the last 100 years.

For goodness sake, the original law set specific tariffs for 20,000 different goods. Little of the original law still exists unmodified.

[ojbyrne]

Also not a lawyer, but I think that there are legislated laws that superseded that, and since its legislated, you can't just go back and choose to enforce one law without the others.

In particular, Wikipedia tells me that the Reciprocal Tariff Act of 1934 had a part makes it harder to go back:

"Another key feature of the RTAA was that if Congress wanted to repeal a tariff reduction, it would take a two-thirds supermajority. That means that the tariff would have to be especially onerous, and the Congress would have to be especially protectionist. Once enacted, tariff reductions tended to stick.

https://en.wikipedia.org/wiki/Reciprocal_Tariff_Act#Reciproc...

[refulgentis]

Because the very act of being limited is emasculating and wouldn't close trade deficits in non-services, which he erroneously believes are some sort of taking-advantage-of, or at least, sees as an opportunity as a dominance ritual -- which would be utterly mundane, its traditional in autocratic regimes. Other Nations are always taking advantage of Us.

We're in an odd spot in America, whites born here have freedom of speech still, as long as you don't have any economic dependency on anything involving the gov't, but we haven't really had to deal with what goes on in a nation with heliocentric tendencies. So it sounds like an attack to say the above. So it goes.

[sdenton4]

I'm seeing lots of big business bending over backwards to erase all the words that are it of favor with the "free speech absolutists" in the GOP. And good luck of you've ever written anything down suggesting that maybe bombing Gaza isn't awesome...

Freedom of speech is looking pretty damn thin at the moment.

[nofriend]

The ruling was basically that the tariffs themselves were unconstitutional. Specifically, the court found trump's tariffs so arbitrary that congress is forbidden from delegating the power to impose such tariffs to him. In order to not void the laws congress passes, the court can reinterpret the wording of the law so that it stops being unconstitutional. This leads to some explanation that the particular law he invoked gave him too narrow a power, but any law you can mention, no matter how broad it seems, would be interpreted by the court as too narrow (or as unconstitutional). Trump's argument in this case was basically, well I can declare an emergency any time I like, and I can claim that whatever I'm doing is fixing the emergency, so I can do whatever I want. Even though they might otherwise have given him that broad discretion, in order to maintain separation of powers they had to call bullshit on that reasoning.

[bilbo0s]

it does cap it at 50%

Pretty sure you're answering your own question.

[mangoman]

...sigh... i mean i guess it really is just about saying they _can_ do it instead of actually _trying to do it_....

[dmvdoug]

Many other statutory schemes were enacted afterwards that placed additional restrictions on the tariff authority Congress gave the President. You can’t read one section of one statute and just assume it alone applies. Just look at the variety of crap you can find in Titles 19 and 50 having to do with trade policy.

[wqaatwt]

Well the average tariff on US goods e.g. in the EU is 4.1%. So sure Trump could add a percentage point or two to make them equal. That wouldn’t exactly fit his goals though..

[Simulacra]

That's probably coming next.

[hoseyor]

You sure have a lot of confidence in the people in power today to think that they could produce something better than was produced 100 years ago when there was still actual debate and bills were read. These people today just pass bills based on it having a catchy sounding title.

[mangoman]

My bringing up it's age was mainly about it not being used in a LONG time, so using it now would seem like a hail mary. I made no mention about current day laws, so I'm not sure where your impression came from.

[blitzar]

"The One, Big, Beautiful Bill" is not catchy.