Rule of Law 2, Trump's Tariffs 0 - WSJ Editorial
Another tariff swing and another legal miss for President Trump. A 2-1 majority of the U.S. Court of International Trade on Thursday ruled his Section 122 tariffs unlawful. Although the White House may turn to other statutes to dun businesses and consumers, the decision is important for the rule of law and limits on willful presidential discretion.
Mr. Trump invoked Section 122 to reimpose his border taxes after the Supreme Court struck down his emergency tariffs in February. Section 122 lets a President impose tariffs as high as 15% for up to 150 days to address “large and serious balance-of-payments deficits.” Mr. Trump set his rate at 10% across the globe.
The President claims the tariffs are needed to reduce the $1.2 trillion U.S. trade deficit in goods. The legal and semantic problem is that the balance of payments and trade balance aren’t the same, as judges Mark Barnett and Claire Kelly explain. “It is clear that Congress was aware of the differences in the words it chose,” they write.
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Mr. Trump’s lawyers argue that the President can still impose tariffs because trade deficits are part of the balance of payments, and the President can pick and choose among the components. “Such an expansive reading of the statute would raise a non-delegation issue, which in turn would prompt a constitutional question,” the judges write.
But the judges say there is no need to address the constitutional arguments since the law doesn’t give the President the authority he claims. “Although the current account (and the balance of trade as a component of the current account) are relevant to balance-of-payments deficits, they are distinct, and the statute recognizes the distinction,” they write.
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