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> 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.

> 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
- rayiner 1y ago
  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 1y ago
    > 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 1y ago
    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.
worik 1y ago
> Here, the President did make a finding That is very interesting. It assumes that the president is truthful
- rayiner 1y ago
  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 1y ago
    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 https://en.wikipedia.org/wiki/G%C3%B6del%27s_Loophole
    - rayiner 1y ago
      Please read Marbury carefully. There is a remedy! An electoral one.
Tadpole9181 1y ago
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.
JamesBarney 1y ago
"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.

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

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

worik 1y ago

> Here, the President did make a finding That is very interesting. It assumes that the president is truthful

rayiner 1y ago
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 1y ago
  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 https://en.wikipedia.org/wiki/G%C3%B6del%27s_Loophole
  - rayiner 1y ago
    Please read Marbury carefully. There is a remedy! An electoral one.

Tadpole9181 1y ago

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.

JamesBarney 1y ago

"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.