The global tariff attack of President Donald Trump can be braked, but will not stop by judicial failures that can ultimately force him to resort to other legal authorities for his campaign to pressure countries to make commercial concessions, they say commercial and legal experts.
His advice to governments, companies and other foreign clients: suppose that Trump will not give up their tariffs and that he will resume them in one way or another.
For now, an emergency suspension of the International Trade Court ruling against Trump tariffs under the Law of International Emergency Emergency Powers will keep them in force at the moment, retaining the influence on commercial partners.
“This is just the first step,” said Dan Ujczo, lawyer and trade expert between the United States and Canada by Thompson Hine in Columbus, Ohio. “The Trump administration has several options, including, reformulating executive orders to include some of the limits used in the CIT opinion.”
The Commerce Court based in Manhattan ruled on Wednesday night that Trump exceeded his legal authority by imposing punitive tariffs under IEEPA, a 1977 law that has been used mainly for sanctions.
The main advantage of IEEPA was its speed and its seemingly broad reach, which suited Trump’s desire to act quickly to impose tariffs a few weeks after his investiture on January 20 by using executive orders.
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This avoided long commercial investigations and periods of public comments under the most traditional authorities to impose tariffs through executive actions, including the Statute of Desleal Commercial Practices of Section 301 used to impose tariffs on Chinese imports in 2018 and 2019 and the National Security Statute of Section 232 used for steel tariffs, aluminum and cars.
The White House commercial advisor, Peter Navarro, told reporters that if the IEEPA is not finally available, the administration could invoke tariffs under any of the authorizations 232 or 301, as well as two other commercial authorizations never used, including section 338 of the 1930s and Section 122 of the 1974 Commerce Law.
“So we can assume that even if we lose, we will do it differently,” said Navarro.
‘Beware of what you ask’
Section 122 allows Trump to impose a 15% tariff for 150 days to restrict imports to address payments of payments or avoid significant depreciation of the dollar, but would require the congress to extend it after 150 days.
Ironically, the law was promulgated as a result of the imposition by President Richard M. Nixon in 1971 of a 10% global tariff by virtue of the predecessor law of the IEEPA, the Commerce Law with the enemy of 1917. Legal experts had cited the Nixon tariffs as a possible parallel to use the IEEPA to support Trump’s tariffs.
“I think the general panorama is that we have a very solid case with the IEEPA, but the court basically tells us that, if we lose it, we will simply do other things. So nothing has really changed,” Navarro told Bloomberg TV.
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Before announcing their global tariffs from 10 to 50% on April 2, on the occasion of the “Day of Liberation”, some experts anticipated that Trump would use section 338, in force 85 years ago, to support them. This law against commercial discrimination has been threatened, but never invoked, and has practically disappeared from public records since the 1940s.
It would allow Trump to impose additional tariffs from 15% to 50% to products from any country that discriminate against US products in a way that puts US products in “disadvantage” compared to imports from other countries.
UJCZO said Trump could also resort to Congress to obtain more tariff faculties. This could make tariffs legally more durable.
“For those who celebrate this opinion, they may be careful what they ask for,” he said.
Kelly Ann Shaw, former Trump’s commercial advisor in her first mandate and partner of the Akin Gump law firm in Washington, said Trump “will not give up its tariff strategy” regardless of the result of the CIT and other cases of the IEEPA.
“I think the administration could use many other sources of authority to justify very similar measures, or even the same,” said Shaw. “Therefore, when I talk to companies, clients and governments, I think it is most likely to assume that these tariffs will continue to exist in some way, or even in the same way.”
With Reuters information
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