The Trump administration has spent months trying to construct a rather flimsy argument that steel and aluminum imports from Canada and other close American allies constitute a national security threat. More than a handy way to drum up public support for trade barriers, the "national security" claim is a crucial bit of the legal rationale for letting the president impose tariffs on those goods without congressional approval.
Then, as he was departing this past weekend's G7 summit, Trump took to Twitter to air some grievences with Canadian Prime Minister Justin Trudeau. In doing so, the president may have significantly kneecapped that legal argument.
PM Justin Trudeau of Canada acted so meek and mild during our @G7 meetings only to give a news conference after I left saying that, "US Tariffs were kind of insulting" and he "will not be pushed around." Very dishonest & weak. Our Tariffs are in response to his of 270% on dairy!
— Donald J. Trump (@realDonaldTrump) June 9, 2018
The last sentence of Trump's tweet is the one that really matters.
The White House slapped a 25 percent tariff on imported steel and a 10 percent tariff on imported aluminum by invoking Section 232 of the Trade Expansion Act of 1962, which gives the president legal authority to impose tariffs without congressional approval when it's for the sake of national security. That line of argument, outlined by Commerce Secretary Wilbur Ross in a February report, says that America needs aluminum and steel to make weapons of war, and that protecting the domestic steel and aluminum industries is the only way to ensure the country will be able to defend itself if attacked.
That is pretty weak, as I (and others) have written before. But as long as Trump makes that claim—no matter how strained the logic might be—the law seems to be on his side. Invoke "national security" and the president can do what he wants with trade.
Except now Trump seems to have admitted that it's not about national security at all. His tweet plainly states that "our Tariffs [sic] are in response to his of 270% on dairy!"
"This makes plain that it's not about national security and it never was about national security," says Clark Packard, a trade policy analyst for the R Street Institute, a free market think tank in Washington, D.C.
This is more than a rhetorical point. Without the "national security" argument, Trump's authority to unilaterally impose tariffs on Canadian steel and aluminum is called into question. It doesn't mean Trump will back down, says Packard, but the tweet could create leverage for other entities—Congress, the courts, perhaps the World Trade Organization—to challenge them.
There are two plausible ways to interpret the tweet. The president could mean exactly what he says: that the steel and aluminum tariffs are a direct, tit-for-tat response to Canadian dairy tariffs. It's also possible that he's implying the steel and aluminum tariffs are a negotiating tactic—something he's using as leverage to get Canada to ease up on the import taxes it charges for American milk. But neither seems to comport with the administration's months-long effort to paint tariffs as a matter of national security.
Will that admission be enough to rouse Congress to action? Even before Trump's weekend tweets, some Republican senators said Trump was abusing his Section 232 authority.
"Making claims regarding national security to justify what is inherently an economic question not only harms the very people we all want to help and impairs relations with our allies but also could invite our competitors to retaliate," Sen. Bob Corker (R-Tenn.) wrote in a series of tweets on June 6. "If the president truly believes invoking Section 232 is necessary to protect the United States from a genuine threat, he should make the case to Congress and to the American people and do the hard work necessary to secure congressional approval."
Corker has introduced legislation that would require the president to submit proposed Section 232 tariffs to Congress for a 60-day review period before they could be enacted. Corker's bill would grant expedited consideration to tariff proposals, but congressional review would apply not only to future tariffs but to all Section 232 actions taken during the past two years—making this a direct attempt to rein in Trump's steel and aluminum tariffs.
"Imposing them under the false pretense of 'national security' weakens our economy, our credibility with other nations, and invites retaliation," Sen. Pat Toomey (R-Penn.) said in a statement.
Corker's bill has garnered support from both sides of the aisle and has been endorsed by a variety of interest groups, including the U.S. Chamber of Commerce, the National Retail Federation, and trade associations representing several manufacturing industries. But so far it has not been scheduled for a vote. The legislation could be attached to the National Defense Authorization Act, a major military bill that must be approved by Congress each year, The Washington Post reports.
Even if Congress does not seize the opportunity to act, there's a chance the Trump administration could end up in court or in front of the World Trade Organization and be asked to defend the legal authority for the tariffs.
Could this end up playing out like Trump's so-called travel ban, the first iteration of which was blocked by the court system in part because of comments and tweets from the president himself?
"Yeah, I think that's certainly possible," says Packard. "I hope so."