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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 disadvanta

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"

mangoman 1y ago
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.
- lolinder 1y ago
  "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 https://www.law.cornell.edu/uscode/text/19/1338
  - boroboro4 1y ago
    > 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).
  - XenophileJKO 1y ago
    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 1y ago
      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 1y ago
        > 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 1y ago
        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")
        heylook 1y ago
        So many people in here are making the same mistake. The whole purpose of the courts is to decide whether some behavior does or does not fit within the confines of some statute. They don't just say "oh yeah whatever you say, go ahead." This very decision is just several instances of the court saying "the law says you can only tariff when X. you said X is true, but it's obviously not, so you can't tariff."
- irjustin 1y ago
  > 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 1y ago
    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 1y ago
      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 1y ago
        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.
        tptacek 1y ago
        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".
        margalabargala 1y ago
- Aurornis 1y ago
  > 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?
- ajross 1y ago
  > 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 1y ago
    > It's that there is a disagreement (among parties with standing) about what the law means. IMO that's being awfully generous.
- hcknwscommenter 1y ago
  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.
  - tptacek 1y ago
    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 1y ago
      > 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.
  - vintermann 1y ago
    "should" carries a lot of weight here.
- kelnos 1y ago
  > 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?
- KPGv2 1y ago
  > 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.
rayiner 1y ago
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.
- deleted 1y ago
  [deleted]
- oivey 1y ago
  The courts interpret the law, so in fact he does have to convince them that his interpretation is true.
- wlesieutre 1y ago
  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 1y ago
    > 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."
stogot 1y ago
> unequal impositions or discriminations When it comes to china, this is definitely true. The rest of the world not so sure
- antris 1y ago
  Huh? American and European CEOs voluntarily move manufacturing to China, now everything gets made in China. And that's somehow China discriminating western countries?
  - deleted 1y ago
    [deleted]
  - hyperadvanced 1y ago
    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 1y ago
      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 1y ago
        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)
palmotea 1y ago
> 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.
- helsinki8 1y ago
  "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.
  - florbnit 1y ago
    It’s so surreal that this has to be explained in this day and age.
  - ajross 1y ago
    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 https://en.wikipedia.org/wiki/Trier_of_fact
  - palmotea 1y ago
    > 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 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.
paulddraper 1y ago
“Whenever the President shall find as a fact” That’s the prerequisite to the lawful exercise of power.
EasyMark 1y ago
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.
reverendsteveii 1y ago
"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.

mangoman 1y ago

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.

lolinder 1y ago
"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 https://www.law.cornell.edu/uscode/text/19/1338
- boroboro4 1y ago
  > 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).
- XenophileJKO 1y ago
  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 1y ago
    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 1y ago
      > 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 1y ago
        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")
        heylook 1y ago
        So many people in here are making the same mistake. The whole purpose of the courts is to decide whether some behavior does or does not fit within the confines of some statute. They don't just say "oh yeah whatever you say, go ahead." This very decision is just several instances of the court saying "the law says you can only tariff when X. you said X is true, but it's obviously not, so you can't tariff."
irjustin 1y ago
> 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 1y ago
  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 1y ago
    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 1y ago
      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.
      - tptacek 1y ago
        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".
        margalabargala 1y ago
Aurornis 1y ago
> 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?
ajross 1y ago
> 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 1y ago
  > It's that there is a disagreement (among parties with standing) about what the law means. IMO that's being awfully generous.
hcknwscommenter 1y ago
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.
- tptacek 1y ago
  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 1y ago
    > 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.
- vintermann 1y ago
  "should" carries a lot of weight here.
kelnos 1y ago
> 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?
KPGv2 1y ago
> 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.

rayiner 1y ago

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.

deleted 1y ago
[deleted]
oivey 1y ago
The courts interpret the law, so in fact he does have to convince them that his interpretation is true.
wlesieutre 1y ago
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 1y ago
  > 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."

stogot 1y ago

> unequal impositions or discriminations When it comes to china, this is definitely true. The rest of the world not so sure

antris 1y ago
Huh? American and European CEOs voluntarily move manufacturing to China, now everything gets made in China. And that's somehow China discriminating western countries?
- deleted 1y ago
  [deleted]
- hyperadvanced 1y ago
  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 1y ago
    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 1y ago
      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)

palmotea 1y ago

> 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.

helsinki8 1y ago
"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.
- florbnit 1y ago
  It’s so surreal that this has to be explained in this day and age.
- ajross 1y ago
  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 https://en.wikipedia.org/wiki/Trier_of_fact
- palmotea 1y ago
  > 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 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.

paulddraper 1y ago

“Whenever the President shall find as a fact” That’s the prerequisite to the lawful exercise of power.

EasyMark 1y ago

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.

reverendsteveii 1y ago

"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.