By John Q. Hosedrinker 
Following the Supreme Court’s rejection of his global tariffs, President Trump enacted new levies under Section 122 of the 1974 Trade Act. However, trade experts contend that this legal basis is also invalid, as the statute requires a “large and serious” balance-of-payments deficit, a condition the U.S. does not currently meet due to its flexible exchange rate and capital account surplus. This move is seen as a temporary measure while the administration initiates investigations under Section 301 and potentially considers tariffs under Section 232, creating continued trade uncertainty.
Read the original article here
It appears that plans for imposing new tariffs are once again running into legal headwinds, with trade experts weighing in to say that a key justification for these tariffs – a balance-of-payments deficit – simply doesn’t exist. This is raising questions about the legality of the administration’s approach, suggesting that this “plan B” for tariffs might be as legally shaky as previous attempts.
The core of the issue seems to revolve around a misunderstanding, or perhaps a deliberate misinterpretation, of economic indicators. While the U.S. may indeed have a trade deficit in goods, this is distinct from a balance-of-payments deficit. It’s being pointed out that these are not interchangeable concepts, and that even the administration’s own Justice Department has reportedly acknowledged this distinction. The implication is that if the foundational economic premise for imposing these tariffs is flawed, then the tariffs themselves are on shaky legal ground.
This situation raises concerns about the administration’s consistent use of executive power in ways that seem to push the boundaries of established law. The repeated invocation of old or obscure laws to justify tariffs, and the subsequent lengthy legal battles, paints a picture of an administration that may be less concerned with strict legality and more focused on achieving its policy goals through prolonged executive action, even if those actions are eventually deemed unlawful.
The effectiveness of legal challenges is also a point of discussion. While courts may eventually strike down these tariffs, the process can be lengthy. This means that tariffs could remain in place for a significant period, causing disruption to trade and potentially benefiting certain interests during that time, before being overturned. This cycle of imposition, litigation, and eventual reversal raises questions about the accountability and the long-term impact of such policies.
The argument that “all countries know it’s illegal this time around” suggests a loss of faith in the negotiation process. If trading partners perceive these actions as legally questionable from the outset, it could undermine the willingness to engage in diplomatic solutions, leading to a more confrontational and less productive international trade environment.
There’s a sentiment that the current political climate operates on a principle of “Air Bud logic” in politics – that is, if a rule doesn’t explicitly forbid something, then it’s permissible, regardless of broader legal or constitutional principles. This approach prioritizes what can be “gotten away with” over adherence to established legal norms, creating an environment where the pace of creating new rules struggles to keep up with executive actions.
The question of legality versus practical outcome is central. Even if tariffs are eventually ruled illegal, the period they are in effect while legal challenges unfold can have significant economic consequences. There’s a concern that this strategy is being employed to create a prolonged period of disruption, potentially leading to a transfer of wealth, even if the ultimate outcome is the reversal of the tariffs.
Some observers are questioning the repeated reliance on legal mechanisms that are known to be contentious and have led to previous legal defeats. The idea is that if the administration is aware that a particular course of action is likely to be challenged and potentially struck down by the Supreme Court, and yet proceeds with it, it points to a deliberate strategy of delay or disruption rather than a good-faith pursuit of policy.
The assertion that presidents cannot set tariffs, and that this power resides with Congress, is a recurring point. This highlights a fundamental disagreement about the constitutional division of powers, with concerns that executive actions are overstepping legislative authority. The legal battles over tariffs seem to be a recurring saga, suggesting a fundamental tension that remains unresolved.
The prolonged legal battles, and the potential for repeated instances of questionable executive actions, are leading to frustration. The concern is that this pattern of engaging in illegal or unconstitutional actions, even when eventually overturned, causes significant damage that is not easily rectified. The slow pace of the judicial system means that the impact of these actions can linger for extended periods.
There’s a feeling that the system itself is being gamed. The strategy might not be about winning the legal argument, but about clogging the courts with challenges, thereby delaying resolution and creating an environment of uncertainty. This could be seen as a deliberate tactic to achieve certain outcomes through prolonged executive action, regardless of the ultimate legal determination.
The idea that “Trump is losing in courts PLENTY” but that “it doesn’t make the news” suggests a narrative that may not fully reflect the reality of his legal challenges. While he may experience setbacks, the perception among some is that the focus is on his perceived successes or continued attempts, rather than the consistent legal opposition he faces.
A deeper concern is that the administration’s actions are not simply about tariffs, but about a broader agenda to undermine governmental institutions. The strategy might involve creating chaos and a cloud of destruction, making it harder for government to function, so that more illicit activities can occur without oversight. This perspective views the tariff disputes as part of a larger effort to dismantle effective governance.
The cyclical nature of political action, where one party’s policies are often cleaned up by the next, is seen as potentially being disrupted. The current administration’s approach, in this view, is to break things so thoroughly that they cannot be fixed, thereby cementing a narrative of governmental failure. This perspective suggests a deliberate effort to render government permanently dysfunctional.