Bottom line, at the end of five minutes of trenchant analysis: “Tariffs as an instrument of arbitrary power have been dismantled.”
Feel free to visit Krugman’ substack—it’s behind a paywall—if you so choose.
Meanwhile, in a world of great uncertainty, a couple of things are certain: Trump will continue to try to abuse whatever tariff power he may have, there will be lots and lots of litigation, and some of those cases will reach the Supreme Court in the coming months.
Among progressives, opinions differ—as do kneejerk reactions—about the likelihood of any degree of success by Team Trump. International trade law is not my field, and I have no crystal ball. But I do like this analysis by someone whose handle is EricAZ (not otherwise known by me from Adam’s housecat), who posted this yesterday on Daily Kos:
Trump’s Decision to Beat a Dead Horse on Tariffs Will Hasten His Fall
A smart person would take his lumps and move on. Trump is not a smart person. Let’s assume that the “best people” that Trump brought to his Cabinet and the White House picked the statute most favorable to his tariff plans. One of the most conservative Supreme Courts since the Civil War beat him with a stick.
Now, Trump is preparing to work his way through other statutes looking for support for his tariff plans. (Keep in mind that the U.S. Constitution says tariffs are under the control of Congress. And the Supreme Court just upheld that fact.)
Having been told, “Don’t let the screen door hit you,” Trump wants to try his luck again. Never mind that the public does not like tariffs, does not like paying higher taxes, does not like a loser and has dropped its esteem for Trump to a level somewhere between Nixon and a road-Kill skunk.
But here the valiant Donald prepares to make his stand.
Here is the list of statutes the president can use to regulate trade:
Section 232 of the Trade Expansion Act of 1962: Allows the president to impose tariffs if imports threaten national security. Pam Bondi can argue that avacados and plastic toys threaten national security. Even with Pete Hegseth guarding the coast, we probably can withstand avacado imports.
Section 201 of the Trade Act of 1974: Enables the president to impose tariffs if an import surge threatens a U.S. domestic industry. Pretty narrow in focus. Imaginary ballrooms are not an important domestic industry.
Section 122 of the Trade Act of 1974: Allows the president to impose tariffs to address international payments problems, with no cap on the level of duties or duration. Despite Trump’s best efforts, we still don’t have an international payments problem.
Section 301 of the Trade Act of 1974: Allows the president to investigate unfair trade practices and impose tariffs, with no limits on the size of the tariffs. Having tried to impose tariffs on the entire world, including uninhabited islands, it will be hard to make a case that the entire world is engaged in unfair trade practices. Especially when Trump claims to have made trade agreements with most of the world.
International Emergency Economic Powers Act (IEEPA): Provides the president with broad authority to impose tariffs in response to economic emergencies. Been there, done that. The court said no.
Many people expect Trump to use one or more of these statutes to repeat the long process he has gone through with his failed IEEPA effort.
One thing the justices really hate, is doing work. Especially repeating work that they or some other judge has already done.
Most likely, any new version of Trump tariffs would be thrown out at the District Court level very quickly. The court would likely leave an injunction against the new tariffs in place until the case works its way to the Supreme Court. At this level, there are no do-overs. The High Court would decline to hear the case and the injunction would stand.
All this happens against a background of Trump’s declining numbers and people’s distaste for high prices and unnecessary tariff taxes at the grocery store. Political parties sometimes survive immense blunders and sometimes they don’t.
Facing MAGA 