7 ms·

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

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.

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.