Litigating The President’s Ability To Impose Tariffs

Look at the remarkable uses to which President Donald Trump has put his apparently unbridled power to impose tariffs.

Six months ago, Trump said that he would impose tariffs on Canada for failure to control the supposed flow of fentanyl from Canada into the United States.

I guess that problem is now solved, but another one popped up: Trump just announced that Canada’s recent proposal to recognize a Palestinian state would make it “very hard” to reach a trade agreement.

Canada’s not alone in this regard.

Back in January, Colombia said that it wouldn’t accept flights of deported migrants flown on military planes. Trump, in turn, said that he’d impose a 25% tariff on Colombia, rising to 50% after a week. Colombia agreed to accept the flights.

India says that it will import oil from Russia. Trump says that he’ll hit India with tariffs.

Russia hasn’t agreed to peace in Ukraine. Trump says that, if Russia’s obstinance continues, he’ll impose tariffs.

Prosecutors in Brazil are pursuing Jair Bolsonaro for having had his supporters storm government buildings and having called for a coup. Trump likes guys who have their supporters storm government buildings and try to engage in a coup; Trump’s added 40% (to the existing 10%) tariff on Brazil expressly because Brazil’s prosecuting Bolsonaro.

I don’t pretend to be knowledgeable about the laws governing American international trade. Generally, I thought that tariffs were supposed to be set by Congress, with exceptions permitting the president to intervene only to protect against import surges, to preserve industries essential to national security, to prevent unfair foreign practices, and arguably to mitigate economic emergencies.

I understand that Trump can say that Brazil prosecuting Bolsonaro falls into one of those categories, but I don’t understand why any sentient person would think that was true.

If Trump really has the power to impose tariffs for anything — Canada’s recognition of Palestine; India’s decision to import oil from Russia; Brazil’s decision to prosecute Bolsonaro — where does that power stop?

Trump is asserting the power to interfere both in other countries’ foreign policy decisions and their domestic affairs. Doesn’t that seem a little expansive?

Trump has said he wants Canada to become the 51st American state. Could Canada’s unwillingness to acquiesce become yet another stumbling block to trade? Could we pick up Iceland and the Panama Canal simply by imposing crippling tariffs on the relevant countries?

What if Qatar were to renege on its offer to give Trump a used Boeing 747? Impose tariffs until Qatar turns over the plane?

What if, for instance, Serbia says that it won’t change its zoning laws to permit the building of a Trump Tower in Belgrade? A billion percent tariffs until the bastards comply?

This is no way to run a country. It’s remarkably silly and more than a little bit dangerous.

I’m not intimately familiar with the legal issues, but last Thursday, the parties argued a case before the U.S. Court of Appeals for the Federal Circuit challenging Trump’s unrestrained ability to impose tariffs for damned near anything.

Watch that case closely for two reasons. First, hope that the courts will once again come to America’s rescue, limiting the power of Trump, and future presidents, to do whatever comes into their heads. Second, watch the stock markets. Some people will make a killing by acting quickly if the court decides to restrict Trump’s unilateral tariff power.

Mark Herrmann spent 17 years as a partner at a leading international law firm and later oversaw litigation, compliance and employment matters at a large international company. He is the author of The Curmudgeon’s Guide to Practicing Law and Drug and Device Product Liability Litigation Strategy (affiliate links). You can reach him by email at inhouse@abovethelaw.com.

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