[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.

[throw0101d]

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

Canada has a dairy tariff after a certain volume is imported. The US has not hit that volume and so the tariffs are currently zero.

> Last year, Canada was the second-highest importer of U.S. dairy products, buying about $1.14 billion US, and it was the United States' top export market for eggs and related products.

* https://www.cbc.ca/news/politics/trump-canada-us-dairy-trade...

USMC also has a carve out for allowing more dairy imports:

* https://ustr.gov/trade-agreements/free-trade-agreements/unit...

It should also be noted that the US subsidizes its dairy farms, which could be considered an unfair advantage and justification for anti-dumping measures (Trump's logic for many Chinese imports, e.g., steel). So Canadian dairy products cannot compete in the US market because they're 'too expensive' compared to what US farmers are selling things at: is that fair?

[wqaatwt]

Right. The average tariff on US goods applied by the EU is 4.1% IIRC Canada was significantly lower. So having “some sort of a tariff” isn’t that meaningful on its own.

[bruce511]

Like most things in life, tarifs can be used well, or used badly.

Canada's Dairy Tariff is specifically designed to protect a specific local industry, which exists, is of national interest to keep, and which could come under threat from cheap alternatives imported from abroad. It's specific, targeted, and serves a valuable purpose. They have been in place a long time, and provide a stable trading environment making the future easier to predict.

Trumps tarrifs are the complete opposite. He could have done tarifs well, but he's lazy and so opted for "easy" instead. By tarrifing countries you mix all industries together.

For example coffee. The US imports 99% of their coffee. The local coffee industry is tiny, and limited to Hawaii. There's no national interest, no local jobs, nothing. Tariffing coffee just makes it more expensive.

No one is planting coffee trees. Partly because the US has the wrong climate, but also because growing new trees (or building a factory) takes years, and a lot of investment. That means confidence that the situation today will last long enough to get a return.

In truth the tarrifs seldom make it past the weekend, or a couple weeks, then they're suspended. The administration openly admits they're negotiating "trade deals". So, I can't invest anything based on current tarrifs because they're very impermanent.

This nonsense is not about whether tarifs are good or bad. This is about how they gave been done (which is epically badly, and stupidly.)

On the upside a generation of future kids will learn about this, and how doing the right thing badly is worse than doing nothing at all.

[tptacek]

I have no idea what this has to do with what I said. Maybe you think Trump can formulate a convincing argument that he is acting with the intended scope of the Tariff Act. Ok? All I'm saying is: his argument would very much be subject to challenge in court, and this is not a non-justiciable "political question".

[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.

[genewitch]

when you say "from the US" can you explain exactly what you mean? and what sources you're drawing from to show that the fentanyl is coming "from the US" into Canada? I realize it sounds like i'm incredulous, but it's only because the US doesn't manufacture fentanyl. Canada does. Mexico does.

But alright, i guess people import it to the US to illegally traffic it back north. and somehow that makes a majority of the traffic! never stop learning, that's what i always say.

[lerchmo]

Enough to kill is a meaningless metric.

[genewitch]

It's millions of "doses." Fentanyl is a scourge, and all manner of language decorations are okay to use in my book. "little blue pills" certainly doesn't match the description of any common medications, like Sildenafil or Naproxen, so approximately zero people would have overdosed and died.

[Terr_]

Yeah: By my napkin-math, the average person has enough blood in them to kill ~20 other people by bad blood transfusions.

Yet it would be beyond stupid to claim that each person stopped at the border "saved" 20 Americans.

[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

[ndsipa_pomu]

They would surely have to convince the court that the exceptions were "unreasonable" which would be a higher bar than just declaring that there is an exception (i.e. an exception for a specific reason is not "unreasonable")

[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

[Marsymars]

> 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

If the administration put out all their executive orders in spelling-mistake-riddled crayon, it would also be “practically irrelevant”, but it would similarly show the level competence behind the tariffs’ implementation.

[awesome_dude]

Falkland Islands were also hit with a tariff that had little to do with the reality of a trade imbalance caused by anything other than they don't buy stuff.

https://www.bbc.com/news/articles/c5ygx81gpg6o

[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.

[sorcerer-mar]

But that's not the argument they're making. You are discussing whether Congress is allowed to pass such a law (they are), GP is discussing the gap between the statute and the executive's action -- that absolutely is reviewable.

In particular, Section 338 requires a factual finding (from POTUS, which is not directly reviewable) but then also tasks USICT with "ascertaining" the facts. It doesn't explicitly give USICT ability to review the factual finding, but it's a very plausible argument that if USICT is tasked with ascertaining facts and those conflict with POTUS's declaration, then POTUS is exceeding statutory authority.

338 has never been used and it's not clear it'd pass Constitutional muster to begin with.

[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.

[davorak]

> What the court can’t do is then second guess that finding—analyzing it substantively to determine whether it is correct or not.

Asking weather if follows a.1 and a.2 does not seem 100% independent of asking if it is correct or not.

"I as president claim a.1, and a.2 are not being violated their for the law allows me to impose a tariff"

"I as president stubbed my toe this morning therefore a.1 and a.2 have been violated and I will be imposing a tariff."

"a.1 and a.2 have been violated, no I will not tell you how, therefor tariff."

You are saying it is black and white, but it does not seem so in the examples above.

[heylook]

That's just not true. This case is a specific example of exactly the opposite. Read the opinion. It's literally a panel of federal court judges, one a Trump appointee, going through each justification and calling bullshit on each one.

[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.

[CamperBob2]

So there is no remedy available to those who are wronged by a false or fraudulent "finding?"

We're pretty sure there's at least one fatal bug in the Constitution, thanks to Kurt Goedel [1], but I don't think anyone has definitively nailed down just what the bug is yet. Maybe this is a candidate.

1: https://en.wikipedia.org/wiki/G%C3%B6del%27s_Loophole

[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.

[tptacek]

The case before the Court of International Trade failed on non-delegation and major questions grounds. But my point isn't that SCOTUS will affirm the lower court here (though: they will), but rather that your logic upthread doesn't hold. You said "the President makes foreign policy, not the courts". Plain category error.

[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.

[saghm]

Whether or not the courts defer to agencies in different scenarios is not nearly as big a part of "how judicial review works" as it sounds like you're trying to claim. Literally last year the Supreme Court removed a major precedent to how deferential the courts need to be to federal agencies[1], so there's absolutely nothing inherent to judicial review that would require things to continue working the way you claim they do even if it was current precedent.

[1]: https://en.wikipedia.org/wiki/Loper_Bright_Enterprises_v._Ra...

[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.

[saghm]

By that logic, a president wanting to tariff the whole world could just specify some small country as not included, and then it be 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..