Since Friday’s Supreme Court tariffs decision, we’ve all had a few days to stare into space after watching President Donald Trump somehow manage to project both a sort of woozy crumbliness and terrifying fascism by declaring that men love to kiss him and he’s allowed to destroy other countries and, above all, he’s just gonna still do tariffs.
Trump wasn’t very clear in his explanation of what he planned to do—shocking, right? He’s usually so precise! At the outset of his spittle-flecked ramblings on Friday, it did sound like he was declaring he would just openly defy the court’s order that he could not impose tariffs under the International Emergency Economic Powers Act IEEPA.
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But that’s not quite it. Instead, Trump was blusteringly, messily, picking up on what Justice Brett Kavanaugh, in his dissent, was putting down. Kavanaugh helpfully gave Trump a roadmap as to how he could impose “most, if not all,” of his tariffpalooza under different statutes, and that’s definitely what Trump is planning to do.
Trump is also planning on keeping in place any existing tariffs that weren’t imposed under IEEPA. During Friday’s whinefest, he immediately announced he would also wallop all countries with an across-the-board 10% tariff hit because he is the world’s sorest loser. By Saturday, he’d raised that to 15%, which is totally how you know that this is a legitimate policy decision and not just the gasping remnants of a toddler’s tantrum.
This arbitrary new rate has the delightfully stupid side effect of raising tariffs from their current rates on allies like Britain and Australia, while actually slashing tariffs for targets Trump is allegedly targeting with his oh-so-strategic tariffs, like China, Vietnam, and Brazil.
A cartoon by Clay Bennett
Trump is doing this slapdash move under the authority of Section 122 of the Trade Act of 1974. This statute, which has never been used, is meant to address “balance-of-payment deficits”—aka serious trade deficits. So, apparently, we now have serious trade deficits with literally every trading partner. It was a 10% trade deficit Friday night, but a 15% deficit roughly 24 hours later, apparently.
In theory, this move is limited to 150 days before Congress has to agree to extend, but as Axios notes, Trump could just let the tariffs lapse, then declare a brand-new emergency and restart the clock.
It also looks like Trump is going to deploy Section 301, so get ready for some sham investigations about how all other countries are just picking on poor widdle America. That law allows the U.S. Trade Representative to take direction from the president in responding to unfair trade practices, but does require fact-finding from the trade representative before tariffs can be imposed. Trump used this during his first term to ramp up a trade war with China, and some of those tariffs remain in effect, having been extended by former President Joe Biden. Section 301 tariffs expire after four years but can be extended.
Trump could also use Section 338 of the Smoot-Hawley Act of 1930, which allows tariffs on countries that discriminate against United States commerce. That one has never been used either, which all but ensures we’ll be right back here at the Supreme Court within the year fighting over whether he’s properly using that law.
There are also existing tariffs under Section 232 of the Trade Expansion Act of 1962. That provision allows for restrictions on imports that threaten national security. It’s the basis for existing steel and aluminum tariffs, though Trump also keeps expanding what falls under national security, now including … cars?
It isn’t clear whether Trump is going to expand the use of 232, as new tariffs would require a Commerce Department investigation first, and the agency gets 270 days to do it. Roughly 10% of existing tariffs were imposed under this law.
Trump also indicated that the administration has no real plans to pay back all the money it owes: ”When pushed further on whether he plans to pay back companies that file for refunds, Trump said, ‘It’s not discussed. We’ll end up being in court for the next five years.’”
What all of this highlights is the absolute lawless farce of tariffs, as the justification for them can be ever-shifting. It’s national security! It’s unfair trade! It’s discrimination! It’s a trade imbalance! This is just Whac-A-Mole, and we’ll be back at the Supreme Court in a year, and another year, and another year.
But you know what would fix this? Congress. They have the power of the purse, they have the power to make laws. The GOP can stop this any time they want. But they don’t want to, so we all get to suffer.
