Trump got a stay on reciprocal tariff rejections, but he has other options.
Reciprocal Tariffs Background
On April 2, Trump hoisted his ridiculous definition of reciprocal tariffs on the world and set a minimum 10 percent tariff.
Trump used the International Emergency Economic Powers Act (IEEPA) as the basis for his tariffs.
The Death of Reciprocal Tariffs
On Wednesday , the Court of International Trade struck down Trump’s reciprocal tariffs.
Trump’s violations of law were so flagrant that the court went straight to a summary judgment instead of issuing a temporary restraining order (TRO) while hearing further arguments.
In its 49-page Ruling of the US Court of International Trade the court concluded:
The court holds for the foregoing reasons that IEEPA does not authorize any of the Worldwide, Retaliatory, or Trafficking Tariff Orders. The Worldwide and Retaliatory Tariff Orders exceed any authority granted to the President by IEEPA to regulate importation by means of tariffs. The Trafficking Tariffs fail because they do not deal with the threats set forth in those orders.
This conclusion entitles Plaintiffs to judgment as a matter of law; as the court further finds no genuine dispute as to any material fact, summary judgment will enter against the United States. The challenged Tariff Orders will be vacated and their operation permanently enjoined.
Plaintiffs’ Motions for Summary Judgment are granted, and their Motions for Preliminary Injunction are denied as moot. Judgment will enter accordingly.
Stay Granted
Trump immediately appealed and won a stay (postponement of the summary judgment).
So what? This is normal and not unexpected.
The Wall Street Journal reports Tariff Ruling Is Put On Hold While Trump Administration Appeals
A federal appeals court has temporarily put on hold a ruling that voided President Trump’s tariffs while it considers the administration’s challenge to the lower-court decision.
In a brief order Thursday, the U.S. Court of Appeals for the Federal Circuit said it was pausing Wednesday’s decision from the U.S. Court of International Trade until it can hear further legal arguments. The order, known as an administrative stay, didn’t rule on the merits of the litigation. Administrative stays are common in emergency appeals.
The Federal Circuit, an intermediate appeals court in Washington, D.C., signaled it was prepared to move swiftly on the case, as the Trump administration had urged it to do. It asked a group of companies that challenged the tariffs to file a brief before June 5 laying out their arguments, and directed the Justice Department to reply by June 9. The order indicates the appeal will be heard by the full court, with 11 active judges participating.
Trump Will Lose
This appeal will be over in June. Trump will lose, and it’s not even close.
I explained why on May 28, in The Court Unanimously Strikes Down Trump’s Global Tariffs, Here’s Why
The court cited nondelegation doctrine, the major questions doctrine, narrow authority, flaws in trafficking tariffs, and “unusual and extraordinary” condition imposed by the IEEPA itself.
Court Decision Points
- “Worldwide and Retaliatory Tariff Orders” do not meet the “unusual and extraordinary” condition imposed by the IEEPA.
- The Government’s position on the unreviewability of § 1701 is also at odds with IEEPA’s text.
- The Trafficking Orders do not “deal with” their stated objectives. Rather, as the Government acknowledges, the Orders aim to create leverage to “deal with” those objectives.
- The Government’s “pressure” argument effectively concedes that the direct effect of the country-specific tariffs is simply to burden the countries they target.
- The legislative history surrounding IEEPA confirms that Congress cabined any presidential authority to impose tariffs in response to balance-of-payments deficits to a narrower, non-emergency statute. To prevent IEEPA from becoming another “essentially . . . unlimited grant of authority”.
- An Unlimited Delegation of Tariff Authority Would Be Unconstitutional. Any other interpretation, would run afoul of both the nondelegation doctrine and the major questions doctrine.
Four-Point Synopsis
- Trade deficits are neither unusual nor extraordinary, a condition set in the IEEPA.
- The administration admitted using leverage to get a deal. The court noted the administration put on and took off tariffs multiple times. This is nothing anyone would do in an emergency.
- The IEEPA contains specific wording to prevent the law from becoming another “essentially . . . unlimited grant of authority”.
- The major questions doctrine says Congress cannot delegate its major constitutional duties to the executive.
Any of those points is sufficient to kill Trump’s executive order.
Major Questions Doctrine
Please note the major questions doctrine is one of the reasons the Supreme Court struck down Biden’s $400 billion student loan forgiveness attempts.
In this case, Trump wants ability to make a $2 trillion executive order. Do you want the next Democrat to issue $2 trillion executive orders?
Stay? So What?
One of my delusional readers said Trump would win this 9-0 in the Supreme Court.
There is almost no chance the Supreme Court will go along with such nonsense and it should be obvious why.
The three liberal judges will all be against Trump. I believe Chief Justice John Roberts and Justice Amy Coney Barrett are near-certain votes against Trump as well.
Justices John Roberts, Neil M. Gorsuch, Brett M. Kavanaugh, and Amy Coney Barrett have all ruled against Trump at times.
So start with 3 certain and pick 2 more.
Unanimous against Trump would not be surprising, but something like 8-1 or 7-2 may be more likely.
Will the SC Even Hear the Case?
That question is uncertain.
If the full appeals court ruling is heavily weighted against Trump, and that is my expectation, the Court may easily decide not to take the case at all.
Trump’s appeal may be the end of this.
What Are Trump’s Options?
Trump actually has a fair number of options including one that would allow 15 percent tariffs for 150 days.
However, that option requites Congressional approval after 150 days which is not a given, In fact, I would expect the Senate to revolt.
There is superficial analysis floating around that discuss Trump’s options, but most of the comparisons are 15 percent tariffs to the current 10 percent minimum.
OK. 15 percent vs 10 percent is a big move but it is nothing like 145 percent reciprocal tariffs on China, 50 percent on the EU, 80 percent on Vietnam, etc.
Notably, the Court of International Trade dampened Trump’s ability to create negotiating leverage with other countries. Trump effectively has to start over with every negotiation.
So reciprocal tariffs are indeed dead. That’s a tremendous thing unless you want the next Democrat president making $2 trillion executive orders on equally absurd rationale.
Although the Court of International Trade put a huge hole in what Trump can do, Trump can still do a lot of damage, and already has has already in one of the worst possible ways, doubling tariffs on steel and aluminum.
For discussion, please see Trump Will Double Steel and Aluminum Tariffs to 50 Percent
I will discuss Trump’s options in much more detail in a follow-up post.
Trump Always Chickens Out (TACO)!
Trump must be getting desperate. He is now “demanding” that all trading partners submit their “best trade (concession) proposals” by tomorrow. 24 hours notice. What a deadline! Like that is going to happen.
Trade negotiations normally take years and involve hundreds of interested parties on both sides being involved in the long, arduous, highly detailed process.
Trump thinks other countries should be able to do it in a day because he needs to show some “deals”.
as per others better versed in the law(s) available, DJT has other options to make the tariffs happen
Only one thing to do: add 10 SCOTUS judges. Trade off an immediate war with Iran (including nuclear bunker buster attacks) for bulk confirmations. I nominate Ivanka Trump, Rudy Guliani, Steve Bannon, and (for racial representation) Kanye West. Remember: the US Constitution does not specify a law degree or any other specific educational or professional qualification for Supreme Court Justices.
Fun times!
Are you as mentally ill as Trump? Sorry rhetorical question.
Despite this crushing exposition of logic, common sense, and sound legal and constitutional reasoning, as explicated by a court of competent jurisdiction (and in this article), I do not put it past SCOTUS to hallucinate its way to an absurd interpretation of the law. That wild card is always there, now as much as ever. There is always some non-zero probability of surprising randomness in the judicial branch. That might be a feature, not a bug, though I am head-scratching to think of an example of that.
Trump could do 15 percent tariffs for 150 days. That’s the play then, I would suspect.
Understanding it requites Congressional approval after 150 days which is irrelevant, as no Tariffs have lasted or will last that long by the looks of it…
wait a minute I recall April 9 Trump stated he was putting off the tariffs for 90 days
Am I a naive fool to be counting down the 90 days from April 9th??
Or is it the same bs as the $5000 ck I look for in my mail box every day that Musk was sending us??
Maybe Trump will pull a Chicago Lincoln making the court’s Dredd Scott tariff ruling academic, meaningless, and freeing the laboring slaves in China and Muslim land from Nike shoe production, Persian oil exploitation, and Mexican drug cartels. In the interest of free trade and for the children to prevent their sex trafficking through open borders thanks to NGOs. . . .
Sleepy “TACO” Don is burning through his days in office. He is down to 1328 assuming he’s not impeached and removed from office at the midterms. It’s likely he’ll be a lame duck after the midterms so 580 days left for him to TACO.
We don’t need to worry about a democratic president… all future elections will be adjusted to prevent such a catastrophe.
Judging by the abnormally high votes for President Trump without votes for ANY OTHER race in all six swing states studied in the link below following the 2024 election, there’s way more evidence that Trump gamed 2024’s election in those seven states than evidence Biden gamed 2020 in any way whatsoever.
In five of the six states studied, the drop off from ballots with presidential votes that lacked any other vote on the ballot was more than Trump’s margin of victory in that state.
https://freepress.org/article/drop-factor-election-data-raises-questions-about-2024-election-results-3
Report it to your local Justice Of The Peace for a quick injunction.
looks like Trump “found”the votes needed without a call to the governor.
They were just sitting there in a box in some gaudy side room at Mar a Lago. What luck!
I’m a Trump supporter. DC circuit ruling likely to be 11-0 supporting the Court of International Trade. I doubt the supreme court would hear an appeal. This one is as clear as it gets.
One can always count on Donald Trump overplaying his hand, especially now when sycophants and ideologues like Peter Navarro surround him. If, when he loses on this IEEPA case, he and his people will try to distort other methods to help Trump manufacture negotiating leverage. Trump rarely has organic leverage when negotiating, and even when he does, he is not patient enough to utilize it effectively. He must, in his mind, break something or make a threat to garner leverage so that he can bully his way to “a win.” His problem is that he thinks that he is untouchable and all-powerful as President, which is not an irrational thought given how the entire Republican Party has surrendered to him, and the Senate and the Courts have handed him a way out of virtually every political and legal jeopardy that he has faced. But, when it comes to bullying the entire world by holding tariffs over the heads of nations, friend and foe alike, he has overplayed his hand and he will be rebuked.
nah. trump has only one motive. to be in headlines each day. he doesn’t care what he looks like. an idiot or not. example. he made his trial a limelight platform for himeself twice per day. lunch and after day. same with mug shot. same with convictions. he doesn’t care. as long as he is being watched and discussed. you guys miss this. because it is pure nihilism. amerikan nihilism.
True it’s pure mental illness.
Let’s hope the courts render a final opinion per the Constitution and are not swayed by political pressures.
IEEPA has just done exactly that, as Mish cited their reasoning in detail.
What are his options? Humility? ( ͡° ͜ʖ ͡°)
Er, uh, I have doubts that will happen.