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.
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.
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.
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.
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.
> Nearly every country that Trump tariffed does have some sort of tariff on the US. Canada has a sizable dairy tariff, for example.
Canada has a dairy tariff after a certain volume is imported. The US has not hit that volume and so the tariffs are currently zero.
> Last year, Canada was the second-highest importer of U.S. dairy products, buying about $1.14 billion US, and it was the United States' top export market for eggs and related products.
It should also be noted that the US subsidizes its dairy farms, which could be considered an unfair advantage and justification for anti-dumping measures (Trump's logic for many Chinese imports, e.g., steel). So Canadian dairy products cannot compete in the US market because they're 'too expensive' compared to what US farmers are selling things at: is that fair?
Right. The average tariff on US goods applied by the EU is 4.1% IIRC Canada was significantly lower. So having “some sort of a tariff” isn’t that meaningful on its own.
It’s impossible to get the effective tariff rate because everyone works around them with VATs and random things like movie ticket taxes for foreign films that are effective tariffs but not officially counted as such.
in this day and age it doesn't even phase me. The president clearly doesn't care about coherent arguments, so why would anyone who potentially voted for him?
Like most things in life, tarifs can be used well, or used badly.
Canada's Dairy Tariff is specifically designed to protect a specific local industry, which exists, is of national interest to keep, and which could come under threat from cheap alternatives imported from abroad. It's specific, targeted, and serves a valuable purpose. They have been in place a long time, and provide a stable trading environment making the future easier to predict.
Trumps tarrifs are the complete opposite. He could have done tarifs well, but he's lazy and so opted for "easy" instead.
By tarrifing countries you mix all industries together.
For example coffee. The US imports 99% of their coffee. The local coffee industry is tiny, and limited to Hawaii. There's no national interest, no local jobs, nothing. Tariffing coffee just makes it more expensive.
No one is planting coffee trees. Partly because the US has the wrong climate, but also because growing new trees (or building a factory) takes years, and a lot of investment. That means confidence that the situation today will last long enough to get a return.
In truth the tarrifs seldom make it past the weekend, or a couple weeks, then they're suspended. The administration openly admits they're negotiating "trade deals". So, I can't invest anything based on current tarrifs because they're very impermanent.
This nonsense is not about whether tarifs are good or bad. This is about how they gave been done (which is epically badly, and stupidly.)
On the upside a generation of future kids will learn about this, and how doing the right thing badly is worse than doing nothing at all.
The most common one is protecting defense-related industries: for example, things like steel, weapons, and automakers are protected in most countries which have them because in the event of a war governments want to have domestic industrial capacity. Microprocessors have gotten a lot of attention here and I think software isn’t far behind, too.
You might not agree with that politically but I think the logic is defensible and discussion should be around the bigger picture of what else is done to support key industries or the rate structure rather than whether it should exist conceptually.
The government could directly pay for domestic industrial capacity, if they want that. Recipients would get money for capacity, not for actual output. (And no tariffs would be necessary.)
Below is a sketch of a keyhole solution to this problem, that would be cheaper than tariffs and cause less disruption to the overall economy:
Recipients could prove that they have capacity either directly by just pointing to their output. Or if they want to claim standby capacity and want to get paid for that one as well, there would be randomised drills every so often where the government asks industry to produce a large quantity of the relevant items on short notice. Anyone who fails would forfeit a huge bond.
To give more details: suppose we want to make sure there's enough capacity to produce one million artillery shells per year. The government would auction off the capacity obligations to the lowest bidders. Companies that already produce the relevant items anyway would presumably have lower costs in fulfilling these obligations, thus they would be the primary bidders. But there might be some companies who operate purely on standby and don't keep a production running.
Being subject to a randomised production drill would be a huge expense, even if the government pays for the output, because of all the fixed costs you have in actually turning on unused capacity, even if only for a short time. But if the drills are truly randomised, insurance companies would really love to insure against them to spread out the load. Insurance companies could also insure against failing the challenge, and that would turn the insurers into private sector inspectors, because they'll want to make sure they don't undercharge companies for the risk of failing to meet their obligated capacity.
If there's not much domestic production, then keeping standby capacity would be more expensive for the companies and thus for the government. Conversely, paying for standby capacity is a subsidy for the fixed costs of the relevant industries. (However it's a very targeted subsidies, because it goes to the lowest cost bidder. It's not sprinkled indiscriminately like a watering can.)
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About defense related tariffs: putting tariffs on your closed allies like Canada and the rest of NATO doesn't make any sense. Steel produced in Canada is as good as steel produced in the US when it comes to defense. (Actually, it's a bit better in some respects, because Canadian steel workers don't have nearly as much political clout in the US as American workers and unions, thus the administration can't be blackmailed and coerced by them as easily.)
Even worse: the US administration allegedly wants to pivot to containing PR China and protecting Taiwan. Putting a 32% tariffs on Taiwan itself and 24% on key regional ally Japan is rather counterproductive.
But I think we both agree that Trump's tariffs were and are stupid, and we are discussing the best case for tariffs here.
So in the best case, it would still be silly to put defense-motivated tariffs on your closest allies.
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Another addendum: the mechanism described in the first part might not work so well for software, because it's not standardised and has practically only fixed costs, no variable costs.
However, you could address that with other customised policy. Eg requiring open source software (especially when it's bought from overseas), and looking for specialised mechanisms for locals to demonstrate maintenance skills on standby or so.
The US has (has?) a huge tarriff, something like 200%, on Chinese EV's. This in theory would be good because it gives American manufacturers a chance to catch up and giving them a huge advantadge for selling to American customers.
in practice, it didn't work because the US really can't decide where it wants to go with EV's. Fighting over standards, some trying to keep holding things back to sell ICE vehicles, etc. Inflation also didn't help, so a lot of cars just blew up in cost. So because of the indeisive industry, the tarriff is just a safeguard instead of an opportunity.
> This in theory would be good because it gives American manufacturers a chance to catch up and giving them a huge advantadge for selling to American customers.
That's the tired old 'infant industry argument'. It's just as bad now as it always has been. Compare also Brazil's ill-fated attempt at creating a home-grown computer industry.
> in practice, it didn't work because the US really can't decide where it wants to go with EV's. Fighting over standards, some trying to keep holding things back to sell ICE vehicles, etc.
I'm not sure who you mean by 'the US'? Producers and consumers of EVs should make their choices.
> Inflation also didn't help, so a lot of cars just blew up in cost.
Inflation is a general rise of the price level. If both input costs and prices you can charge to customers go up in proportion, inflation doesn't make a difference. Just like moving from metres to yards doesn't make the distance between London and Paris larger.
Any Canadians here to comment on the milk tariff policies?
I have spent ten days of my life in Canada and I learnt of the tariffs by news reports concerning people driving to USA, loading up on milk, coming home.
Tariffs are not always stupid. But in most cases there is a better alternative.
E.g. Canada could subsidise domestic milk producers. (We used to do that in New Zealand)
There is a lot of nonsense talked about economics ("tariffs always bad" is an example) because there are strong incentives at work for the actors. It makes it very difficult for policy makers to have good, responsive, effective economic policy.
Naturally individuals can cross the border and get cheaper stuff. But in the grand scale of things, that's irrelevant.
IMO tarifs are preferable to subsidies. Subsidies encourage over production, plus still places the industry at risk. Tarifs just incentivize purchasing local. Plus for whatever revenue there is, it's an income to govt coffers. Whereas a subsidy is an expense.
And ultimately the cost is born by the consumer of that product, not the wider tax base.
So, well targeted, it's a more effective tool than a subsidy, and much less prone to waste or corruption.
Put another way, a tarrif is much cheaper than a subsidy (and tarrif makes for a better outcome.)
That's largely acceptable, and certainly preferable to underproduction, for resources that we simply can't do without. Dairy was (and still is) considered one of those resources as a superfood. Now maybe milk might not hold up anymore as being so critical to childhood nutrition (though I'm skeptical), but I think the reasoning behind it makes sense.
> Tarifs just incentivize purchasing local.
Sure, they also incentivize not eating. But commodification of basic resources is nothing new to americans, I suppose.
Some things are worth everyone pitching in for. Tariffs place the burden of living here on the individual. I don't really see any benefit from this.... fuck local businesses if they can't compete. The entire pitch of living here is that we'll let the market determine every aspect of our lives; why would we not double down when it came to letting businesses fail?
> E.g. Canada could subsidise domestic milk producers. (We used to do that in New Zealand)
Like the US does? Isn't that just a race to the bottom then?
The Canadian supply management system means that those that purchase milk pay the amount needed to keep the Canadian dairy industry afloat. If you don't buy milk you don't pay.
With subsidies everyone pays, regardless of whether you use the product(s) or not.
Of course subsidies make the price cheaper, which helps with cost of living, which can be quite progressive (and often children are the ones that drink the most milk).
Further, the US subsidies milk even though its consumption has been falling for decades:
The supply and purchase of Dairy in Canada is centralized through the government.
Government sets a supply goal and buys that amount from farmers and then resells to the grocers / public.
It's been this way for a long time. The tarrifs are there to control for a case of oversupply in the market, but I also seem to remember that those supply targets haven't actually been met in a single year so the tarrifs effectively don't apply.
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".
"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.
And given that most trading partners are members of the WTO then the kind of behavior covered here would be covered by the most favored nation clauses.
Republican tariffs, they're complicit. Literally every single Republican in the House voted to shield Trump's "national emergency" [0] from being challenged as invalid.
[0] The National Emergency of... a relatively small amount of fentanyl seized at the Canadian border.
The amount of fentanyl (just fent) siezed through April of this year since January was enough to kill 700,000 people. I guess you can disbelieve the story that car part vsndors were trafficking fentanyl, but it is a problem.
Between 2022 and 2024, 0.1% of all fentanyl seizures were at the northern border with Canada, vs ~99% at the border with Mexico. There’s also an (equally small, relatively speaking) reverse flow of fentanyl into Canada from the US. Not to mention that fentanyl trafficking is completely orthogonal to tariffs, except that the former is used as an excuse to utilize the latter to bully an ally.
when you say "from the US" can you explain exactly what you mean? and what sources you're drawing from to show that the fentanyl is coming "from the US" into Canada? I realize it sounds like i'm incredulous, but it's only because the US doesn't manufacture fentanyl. Canada does. Mexico does.
But alright, i guess people import it to the US to illegally traffic it back north. and somehow that makes a majority of the traffic! never stop learning, that's what i always say.
It's millions of "doses." Fentanyl is a scourge, and all manner of language decorations are okay to use in my book. "little blue pills" certainly doesn't match the description of any common medications, like Sildenafil or Naproxen, so approximately zero people would have overdosed and died.
The political machine learns quickly, the previous administration used the Covid emergency declaration as a pretext to cancel student debt. Both sides have turned to extend the reaches of the checks and balances instead of reining them in. This is the root cause.
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.
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.
> 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
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")
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."
Right, but I think other people here may be making the opposite mistake-“according to my interpretation of the statute what the Trump admin has done isn’t allowed”-ultimately your or my interpretation doesn’t count, it is the courts
And I haven’t been arguing that the Trump admin is going to win-only that people are underestimating their chances. And even if I’m right about that, they still might lose anyway, and that fact in itself wouldn’t prove that I was wrong.
The fact that the attempt to introduce tariffs using one statute was overturned by this court, doesn’t mean the same court is automatically going to overturn those tariffs under a different statute - different texts, different tests, both the same outcome and the opposite outcome are entirely plausible
And as I said, I don’t actually think these tariffs are a good idea from a policy viewpoint - but that’s largely orthogonal to the question of what courts are going to do to them
> an exception for a specific reason is not "unreasonable"
I doubt it is that simple.
I don’t know how exactly judges are going to define “reasonable” in this specific area of law-but “reasonable” normally means not just that you have a reason, but also that the judge concludes it is a valid or good enough reason-and different areas of law often have different tests for deciding what reasons are valid or good enough
So, they need to argue that the foreign countries' practice imposes a disadvantage in fact on the commerce of the USA compared with the commerce of any foreign country? They already have argued that; it was headlined in Trump's first announcements.
Any business impacted by the tariffs will have standing to go to federal court and argue that trade practices accepted for a century by legislatures and administrations of both parties do not constitute "unequal impositions" under the intended meaning of the statute.
They'd have to argue something other than that. There could be a standing regulation that says "Ships carrying any American goods must pay 30% higher docking fees"; if that had been accepted for a century, it would still be a slam dunk case of "unequal impositions".
> Discriminates in fact against the commerce of the United States, directly or indirectly, by law or administrative regulation or practice… in such manner as to place the commerce of the United States at a disadvantage compared with the commerce of any foreign country.
I think the administration would find it easier to prove this than you think. They just have to find some regulation which they claim disadvantages the US compared to other countries. Given most countries have thousands of pages of regulations, it likely isn’t hard to find something in there that they can argue puts the US at a disadvantage-especially since what really matters is not whether it actually does, rather whether they can convince a court that it does
Real example: the US claims Australia bans US beef, Australia insists it is allowed. I believe the real problem is this-Australian regulations say US beef is allowed if the cattle are born in the US, raised in the US, slaughtered in the US… and the problem is the US cattle industry has such poor record-keeping, they intermingle US-born cattle with live cattle imports from Canada and Mexico and can’t produce the necessary paperwork to prove a shipment of beef is purely US-grown and hasn’t been mixed with beef from non-US origin cattle
Now, there is no reason in principle why the US cattle industry couldn’t improve their record-keeping to the point that it meets Australian regulations. But that would cost money and be politically unpopular-so instead US politicians just spread the rather misleading claim that “Australia bans US beef”. What really matters legally, is not the reasonableness of the claim, it is whether they can get a US judge to accept it-and quite possibly they could
And there’s probably several other cases where US companies can’t export their products to Australia because they aren’t willing to comply with Australian regulations. And likely many similar stories for other countries too. And if DOJ lawyers try to argue these cases fit under the legislation you are citing, IANAL but I think they’d have decent odds of success
> it's specifically targeting cases where a foreign country discriminates against US trade over and beyond the dues it charges on other countries' trade.
But, in this Australia case, all they have to do is find another country which can export beef to Australia because it does comply with these regulations, and there is their argument that Australia discriminates against the US. Should it matter legally that these regulations are reasonable and not intentionally discriminatory and US inability to comply is due to US unwillingness to pay for the reforms necessary to do so? I think it should, but entirely plausible that a judge decides it shouldn’t
EDIT: to be clear, I think these tariffs are pretty stupid-but whether something is stupid is a separate question from whether courts will uphold it. Many courts will uphold a lot of things which you or I know to be stupid
Yeah - the tariffs imposed on the islands with little to no population are definitely because nobody buying anything is blame for the fact they have a surplus
That was stupid but also practically irrelevant-if an uninhabited territory has zero exports, you can set the tariff as high as you like, with no exports nobody is going to pay it. To be clear, I don’t agree with these tariffs and think they are a mistake, but I think we should focus on their real world harms not a silly administrative error
We know how it happened: Heard and McDonald Islands is an uninhabited Australian territory off the coast of Antarctica. In the 19th century, it was inhabited by sealers for an extended period (mostly Americans, some Australians too)-but they left after hunting the seals to extinction. In the 20th century it became a nature reserve, although it saw multi-year occupation by scientific research bases. Since the 1990s, no humans have been there except for brief visits; apparently nobody has been there in person for over a decade. It is illegal to come ashore without permission from the Australian government, and their policy is to almost always refuse permission (with rare exceptions for scientific research).
Yet despite all this, ISO 3166-1 gave it a country code, HM. And US government databases ended up showing imports from it, almost certainly due to data entry errors, the imports having really come from somewhere else. But it appears nobody was paying attention, so it ended up as a tiny trade deficit in official US trade statistics. And then the Trump administration mindlessly applied the rule “IF official US trade statistics show a deficit THEN impose tariff”. And still nobody noticed. And then after they publicised it, somebody did, and they were widely mocked for the mistake, and I believe this specific tariff has since been rescinded.
Most likely HM was actually a typo for Hong Kong (HK) or Honduras (HN)-adjacent keys on the keyboard. Or maybe the M is correct and the H is the typo, in which case it could easily have been The Gambia (GM) or Bermuda (BM) or Jamaica (JM)-also adjacent keys
Australia has another uninhabited territory (Ashmore and Cartier Islands), and another near uninhabited (Coral Sea Islands, staffed by a tiny rotating crew of government employees)-but, for whatever reason, ISO never gave either its own country code, [0] so this couldn’t have happened to them. (Likewise, Australia claims a big chunk of Antarctica, a claim which most countries-US included-don’t recognise-so the Australian Antarctic Territory doesn’t get its own ISO code, it gets subsumed under Antarctica’s, AQ.)
[0] I guess the reason may be land area - Ashmore and Cartier Islands have a land area of slightly over a square kilometre, less than a square mile; Coral Sea Islands have a land area of 3 km^2, which is slightly over one square mile; by contrast, Heard Island is 368 km^2 (142 sq mi). ISO generally resists giving codes to uninhabited territories unless they contain significant land
> That was stupid but also practically irrelevant-if an uninhabited territory has zero exports, you can set the tariff as high as you like, with no exports nobody is going to pay it. To be clear, I don’t agree with these tariffs and think they are a mistake, but I think we should focus on their real world harms not a silly administrative error
If the administration put out all their executive orders in spelling-mistake-riddled crayon, it would also be “practically irrelevant”, but it would similarly show the level competence behind the tariffs’ implementation.
Falkland Islands were also hit with a tariff that had little to do with the reality of a trade imbalance caused by anything other than they don't buy stuff.
> Falkland Islands were also hit with a tariff that had little to do with the reality of a trade imbalance caused by anything other than they don't buy stuff.
That they don’t buy stuff is only half the story. The other half is they export a lot of primary produce - to the US, primarily frozen fish. The US imports a lot of food so they are interested in Falklands fish. US exports are much higher up the value chain, and Falklands having such a small population has rather limited demand for those high value exports-hence the inevitable trade imbalance.
Which isn’t saying US tariffs on Falklands is good policy-I think it is stupid.
Compare a country like Australia-like Falklands, Australia exports a lot of stuff the US wants to buy. Unlike Falklands, Australia has a decent sized relatively well-off population, who buy a lot of stuff from the US-as a result, the US actually has a trade surplus with Australia. Now, of course, Australia is on a completely different scale from the Falklands: but my point is, if Falklands had a ratio of primary production to population closer to Australia’s, the US would quite possibly have a trade surplus with it too, albeit obviously a smaller one-Australia has around 7800 as many people as Falklands, but only 750 times the primary exports - meaning on a per capita basis, Falklands has around 10 times the primary exports of Australia.
> That they don’t buy stuff is only half the story. The other half is they export a lot of primary produce - to the US, primarily frozen fish. The US imports a lot of food so they are interested in Falklands fish. US exports are much higher up the value chain, and Falklands having such a small population has rather limited demand for those high value exports-hence the inevitable trade imbalance.
Because you didn’t mention the fish exports. If they didn’t export all that fish, and still didn’t buy much, the US would quite possibly have a minuscule trade surplus with them instead of a tiny trade deficit
Right so a trade imbalance which by definition is someone selling more than they buy, needs to have someone explicitly say that they were selling stuff... in order for you to understand the point??????
I thought what you said was missing important details, and it was worthwhile to state them explicitly. Even if you don’t see any value in that, maybe someone else will.
Nah like they said they have to show it meets an existing definition, not just make whatever claim they want that appeals to some random model or sense of injustice
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.
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).
