Dem
47
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There was a little bit of tariff-related news yesterday, which the Trump administration is hailing as a victory: In a brief order, the U.S. Court of Appeals for the Federal Circuit stayed Wednesday's ruling from the U.S. Court of International Trade (USCIT), the one that struck down virtually all of the tariffs that Donald Trump had announced since becoming president for a second time.
We chose the Horace quote for the headline because there is an excellent possibility that today's victory becomes tomorrow's defeat (well, more like next week's defeat). The USCIT ruling is only stayed for a little more than a week, so that parties on both sides have a chance to file briefs, and the Appeals Court has time to consider the matter. This is a very common short-term outcome, and was likely enough that the USCIT had actually already stayed its own ruling for 10 days, to give the Appeals Court every opportunity to decide if it wanted to take a look-see. Put another way, the ruling would not have taken effect until June 7, at the earliest. Now, that has been pushed back to... June 9. That doesn't really tell us anything about the merits of the administration's case.
And that brings us to the next point, which is that, as we noted yesterday, the administration's argument is pretty weak, and is going to be evaluated by judges who are hostile to either unchecked executive power or protectionism or both. Yesterday, in a piece for Politico, former federal prosecutor Ankush Khardori highlighted a couple of other problem areas for the White House.
First, the administration's arguments are based heavily on a 1971 case, United States v. Yoshida International, in which the Supreme Court allowed Richard Nixon to implement some (fairly limited) tariffs on his own authority. At first glance, that seems like an excellent precedent for Team Trump to use. However, the administration's lawyers had to pick and choose, utilizing the elements of the decision they like, and ignoring the parts they don't like. For example, Trump and his legal team are arguing that tariff rates are not a justiciable question. In Yoshida, SCOTUS said they most certainly ARE a justiciable question. Needless to say, this kind of picking-and-choosing does not make for a great foundation, as it: (1) brings the judges' attention to a ruling that, in some ways, undermines the administration's case, and (2) suggests that they couldn't come up with better precedents, because if they could, they wouldn't have used this one.
The other issue that Khardori points out is one of legal philosophy, albeit a different philosophical issue than the ones we pointed out. In brief, the general trendline in jurisprudence in the last decade or so, and in particular in conservative jurisprudence, has been "Congress has given away too many powers to the executive branch, powers it is not allowed to delegate." It seems improbable that, in this one case, the justices of the U.S. Court of Appeals for the Federal Circuit, or of the Supreme Court, are going to do a 180, and strike down a decision that is entirely in harmony with the general trendline.
You never know what a court—be it the Appeals Court or the Supreme Court—will do, until it does it. But if you had to bet, you'd still want to bet heavily against the administration.
Also, there is one other matter worth noting, one we did not have time to fit into yesterday's item. If the ruling from the USCIT stands, here are the tariffs that will go the way of the dodo:
Meanwhile, here are the tariffs that will still stand:
So, if the USCIT ruling survives appeal, then it will take a real bite out of Trump's plans. (Z)