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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 p

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
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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."
  - whatshisface 1y ago
    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 1y ago
      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 1y ago
        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.
  - davorak 1y ago
    > 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 https://www.law.cornell.edu/uscode/text/19/1338 edit to remove double negative
Aurornis 1y ago
> 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 1y ago
  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.
  - tptacek 1y ago
    Hence the cases and controversies clause.
  - davorak 1y ago
    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.
  - heylook 1y ago
    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.
fakedang 1y ago
Used to be a time when Congress made foreign policy. Oh, how fast they grow up... (sheds tear)
- wredcoll 1y ago
  Honestly I'm not sure that was ever true, but it is funny.
  - eli_gottlieb 1y ago
    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 1y ago
    Congress is responsible for all formal declarations of war. I think it was Truman who started the concept, but JFK who truly exploited it.
Izikiel43 1y ago
Taxing things is Congress' responsibility, not the executive branch.
sorcerer-mar 1y ago
How is taxing American importers "foreign policy?"
- Terr_ 1y ago
  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.
- boroboro4 1y ago
  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 1y ago
    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 1y ago
      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 1y ago
        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.
maxerickson 1y ago
“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-trumps-tariffs https://www.cnn.com/2025/05/28/business/us-court-blocks-trum... That seems to not agree with your "power Congress gave" characterization.
eli_gottlieb 1y ago
Time to relitigate Marbury vs Madison, then? POTUS is currently in defiance of court orders on a number of issues, after all.
danielmarkbruce 1y ago
[flagged]
tptacek 1y ago
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 1y ago
  That’s an argument that the Tariff Act of 1930 is unconstitutional, which is a different argument.
  - tptacek 1y ago
    No, it's an argument that your interpretation of the act is (pretty clearly) unconstitutional.
    - rayiner 1y ago
      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 1y ago
        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 1y ago
        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.
kelnos 1y ago
> 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 1y ago
  > 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 1y ago
    > 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 1y ago
      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 1y ago
    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.
KPGv2 1y ago
> The President makes foreign policy, not the courts. A tariff is not foreign policy. It is a tax levied on American companies.
- Marsymars 1y ago
  It’s also levied on non-American companies. I still wouldn’t count it as foreign policy though.
wqaatwt 1y ago
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..
deleted 1y ago
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deleted 1y ago

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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."
- whatshisface 1y ago
  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 1y ago
    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 1y ago
      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.
- davorak 1y ago
  > 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 https://www.law.cornell.edu/uscode/text/19/1338 edit to remove double negative

Aurornis 1y ago

> 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 1y ago
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.
- tptacek 1y ago
  Hence the cases and controversies clause.
- davorak 1y ago
  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.
- heylook 1y ago
  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.

fakedang 1y ago

Used to be a time when Congress made foreign policy. Oh, how fast they grow up... (sheds tear)

wredcoll 1y ago
Honestly I'm not sure that was ever true, but it is funny.
- eli_gottlieb 1y ago
  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 1y ago
  Congress is responsible for all formal declarations of war. I think it was Truman who started the concept, but JFK who truly exploited it.

Izikiel43 1y ago

Taxing things is Congress' responsibility, not the executive branch.

sorcerer-mar 1y ago

How is taxing American importers "foreign policy?"

Terr_ 1y ago
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.
boroboro4 1y ago
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 1y ago
  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 1y ago
    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 1y ago
      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.

maxerickson 1y ago

“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-trumps-tariffs https://www.cnn.com/2025/05/28/business/us-court-blocks-trum... That seems to not agree with your "power Congress gave" characterization.

eli_gottlieb 1y ago

Time to relitigate Marbury vs Madison, then? POTUS is currently in defiance of court orders on a number of issues, after all.

danielmarkbruce 1y ago

[flagged]

tptacek 1y ago

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 1y ago
That’s an argument that the Tariff Act of 1930 is unconstitutional, which is a different argument.
- tptacek 1y ago
  No, it's an argument that your interpretation of the act is (pretty clearly) unconstitutional.
  - rayiner 1y ago
    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 1y ago
      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 1y ago
        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.

kelnos 1y ago

> 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 1y ago
> 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 1y ago
  > 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 1y ago
    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 1y ago
  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.

KPGv2 1y ago

> The President makes foreign policy, not the courts. A tariff is not foreign policy. It is a tax levied on American companies.

Marsymars 1y ago
It’s also levied on non-American companies. I still wouldn’t count it as foreign policy though.

wqaatwt 1y ago

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..

deleted 1y ago

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