[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

[skissane]

> 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.

That they don’t buy stuff is only half the story. The other half is they export a lot of primary produce - to the US, primarily frozen fish. The US imports a lot of food so they are interested in Falklands fish. US exports are much higher up the value chain, and Falklands having such a small population has rather limited demand for those high value exports-hence the inevitable trade imbalance.

Which isn’t saying US tariffs on Falklands is good policy-I think it is stupid.

Compare a country like Australia-like Falklands, Australia exports a lot of stuff the US wants to buy. Unlike Falklands, Australia has a decent sized relatively well-off population, who buy a lot of stuff from the US-as a result, the US actually has a trade surplus with Australia. Now, of course, Australia is on a completely different scale from the Falklands: but my point is, if Falklands had a ratio of primary production to population closer to Australia’s, the US would quite possibly have a trade surplus with it too, albeit obviously a smaller one-Australia has around 7800 as many people as Falklands, but only 750 times the primary exports - meaning on a per capita basis, Falklands has around 10 times the primary exports of Australia.

[awesome_dude]

> That they don’t buy stuff is only half the story. The other half is they export a lot of primary produce - to the US, primarily frozen fish. The US imports a lot of food so they are interested in Falklands fish. US exports are much higher up the value chain, and Falklands having such a small population has rather limited demand for those high value exports-hence the inevitable trade imbalance.

How is this not what I'm saying?

[skissane]

Because you didn’t mention the fish exports. If they didn’t export all that fish, and still didn’t buy much, the US would quite possibly have a minuscule trade surplus with them instead of a tiny trade deficit

[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