| The first major legal challenge to Trump’s new tariffs is already underway at the U.S. Court of International Trade, and it was brought by the same legal advocacy group that successfully toppled the so-called “emergency” tariffs that Trump levied last year. |
| Those tariffs were pretty much doomed to fail as a legal matter, but this time around, the result could be very different. |
| The Trump administration purported to justify the latest round of tariffs under Section 301 of the Trade Act of 1974, which authorizes the government to impose tariffs on foreign countries when the U.S. Trade Representative determines that they have used “unjustifiable,” “unreasonable,” or “discriminatory” trade practices against the U.S. |
| The Trump administration claims that the new tariffs are justified by concerns over forced labor, but as The Wall Street Journal notes, “The broad outlines of Trump’s trade war are mostly staying the same,” and the “changes are largely aimed at sustaining a tariff agenda that has run into legal trouble.” |
| There is another word for this: pretext. |
| That’s essentially the argument being advanced by the plaintiffs in the new challenge, and it has obvious intuitive and practical appeal. Put simply, the Trump administration has swapped out the old, bad legal rationale for its tariff regime for a new, less bad one that happens to be disingenuous on the merits, since there is no way to actually make sense of the sweeping tariff regime on the grounds of forced labor. |
| The administration’s legal pivot here was not surprising. It was one of the scenarios that Timothy Meyer, a law professor and expert on international trade law, posited to me while we were waiting for the Supreme Court to throw out last year’s “emergency” tariffs. |
| It is, however, far from clear that the plaintiffs will be successful this time around — but that isn’t because the arguments are bad. It’s because the Court of International Trade has historically been deferential to the executive branch when it makes determinations under the purported authority — and at least nominally pursuant to the relevant procedures — of a tariff law passed by Congress. That much seems to have happened here. |
| If you find this odd, you are not alone. There are theories of judicial interpretation that are attentive to these sorts of practical realities, but they are not exactly in fashion among trade judges or, more to the point, the Republican appointees on the Supreme Court. |
| This is despite the fact that there are plenty of reasons for the same three Republican appointees who joined the three Democratic appointees in striking down Trump’s “emergency” tariffs to do so again. |
| For Chief Justice John Roberts, it’s his legacy, which he cares about but which is already on very shaky ground as a result of the court’s Trump-era rulings. For Amy Coney Barrett, it’s her self-respect and long-term interest in maintaining the appearance of independence in the decades that she may serve after Trump leaves office. Neil Gorsuch supposedly co-wrote a whole book criticizing the arbitrary use of executive power, and although that book was disingenuous and bad, his name was on it. |
| In the meantime, the latest Trump tariffs are just as much a political issue as they are a legal one. The president gets his tariff authority from laws passed by Congress, and if the Republican majority wanted to, it could block these tariffs. |
| Congressional Republicans don’t appear inclined to do that, but the November midterms are fast approaching, and the economy and affordability remain at the top of Americans’ minds. Voters will get to weigh in on all of this soon enough. |
