[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.

[rayiner]

Lower courts get decisions wrong all the time.

[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

[rayiner]

Please read Marbury carefully. There is a remedy! An electoral one.

[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.

[rayiner]

Trump is knee-deep in negotiating with foreign countries on trade deals using the tariffs as leverage. And the court must purported to kneecap him. Of course it’s an exercise of the President’s foreign policy powers, and that’s why Congress gave the President this authority over tariffs in the 1930 act.

The major questions issue shows how out on a limb this court is. There’s currently a circuit split on whether MQD even applies to the president.

[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.

[boroboro4]

I don’t think tariffs being foreign policy gives the president full control over them because foreign policy is presidents responsibility. Tariffs have this duality between being foreign policy and budget. So I don’t have issue with Congress delegating some of the tariffs power to the executive in some circumstances.

[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..