Cato Institute Podcast on Our Lawsuit Challenging Trump's "Liberation Day" Tariffs

I was interviewed by Caleb Brown of Cato.

The Cato Institute just posted this podcast in which I was interviewed about the lawsuit the Liberty Justice Center and I filed on Monday on behalf of five US businesses harmed by Trump's "Liberation Day" tariffs.

The podcast was recorded before we filed the suit. Nonetheless, I think I was able to give a helpful overview of the issues.  Here it is:

Comments

[Supremacy Claus]

Somin is a disloyal American. There is nothing to discuss.

[Purple Martin]

OK, not with you at least. Thanks for the heads-up. So, why are you here?

[Alpheus W Drinkwater]

yawn

[Dr. Ed 2]

Deport Ilya.

[Kazinski]

I can't find anything in the Constitution or the laws that allows the President to set tariffs at will.

Ilya is right in this case, when he is wrong I will point that out too.

[F.D. Wolf]

You didn't look hard enough, because it is right there in "the laws", specifically 50 U.S.C. sec. 1702(a)(B)(1), which gives the President, upon his declaration of an emergency, the power to:

investigate, block during the pendency of an investigation, regulate, direct and compel, nullify, void, prevent or prohibit, any acquisition, holding, withholding, use, transfer, withdrawal, transportation, importation or exportation of, or dealing in, or exercising any right, power, or privilege with respect to, or transactions involving, any property in which any foreign country or a national thereof has any interest by any person, or with respect to any property, subject to the jurisdiction of the United States

Does the power to "regulate...importation" include the power to impose tariffs? As it happens, there is a case exactly on point from the Court of Customs and Patent Appeals, in which President Nixon declared an emergency and imposed an additional 10% tariff on all imports. The court upheld the President's action. United States v. Yoshida Intern., Inc., 526 F.2d 560 (CCPA 1975).

That case is binding precedent on the Court of International Trade and in the Federal Circuit, and I doubt very much there is a majority on the current Supreme Court to hold, for the first time in American history, that a court may substitute its judgment for that of the President and Congress as to the existence of an emergency,

[Sarcastr0]

"upon his declaration of an emergency" != at will.

[jb]

The Court seems very happy recently to find that Congress can't delegate too much decision-making to the Executive, though.

[F.D. Wolf]

The Court has done no such thing. It has not applied the "nondelegation doctrine" (if there really is such a thing) since 1935. To the contrary, the Court has frequently noted that the realities of the fast-paced modern often require such delegation.

The "major powers doctrine" says that when Congress delegates a "major power", and I believe the tariff power certainly qualifies, then it must do so in clear and unambiguous terms, which I believe it has done with the tariff power with the above-cited statutory text. If Congress wishes to take back that delegation, or qualify it, it is certainly within its power to do so. (And, even in the current statute, Congress reserves the right to terminate a Presidential declaration, though, of course, in this case it has not done so, or even attempted a vote to do so, which is another reason I believe courts would be hesitant to insert themselves in an issue for the political branches.)

[AmosArch]

I'm all for dismantling tariffs and trade barriers if the other side ie China does too. If he really is for free trade Mr. Somin will get back to us once he convinces the PRC to stop being by a country mile the most protectionist nation on the planet instead of targeting countries that refuse to play on unequal terms.

[David Nieporent]

Again: trade is positive sum, not zero sum. Lowering tariffs on ourselves is good regardless of what other countries do.

[Kazinski]

Then what we should do is have a true reciprocal trade tariff formula not the bullshit formula Trump used.

It can't be sector by sector, but if Canada has a 300% tariff on butter, then put a 300% tariff on maple syrup.

Pancakes are bad for you anyway.

[AmosArch]

True. I don't know why they couldn't have hired a couple interns per country to crunch the numbers and come up with something more plausible. I guess they didn't give a shit, this was just shock and awe and convincing the rest of the world they're throwing around tariffs willy nilly was intentional. But I would have personally preferred a more subtle strategic approach. I agree on the surface level globalized free trade might be the overall 'optimal' high level solution available from the pov of the whole world but I'm also sympathetic to the fact that we're juggling multiple concerns and 100% barreling toward one solution all the way for everyone might not be the answer even if it clocks the highest score overall.

[jb]

"I guess they didn't give a shit"

Yes, that seems correct. What a way to run a country!

[Sarcastr0]

we're juggling multiple concerns and 100% barreling toward one solution all the way

Except we were not. We had plenty of tariffs before Trump got involved.

[bernard11]

Why?

Milton Friedman:

Given that we should move to free-trade, how should we do so? The method that we have tried to adopt is reciprocal negotiation of tariff reductions with other countries. This seems to me a wrong procedure. In the first place, it ensures a slow pace. He moves fastest who moves alone. In the second place, it fosters an erroneous view of the basic problem. It makes it appear as if tariffs help the country imposing them but hurt other countries, as if when we reduce a tariff we give up something good and should get something in return in the form of a reduction in the tariffs imposed by other countries. In truth, the situation is quite different. Our tariffs hurt us as well as other countries. We would be benefited by dispensing with our tariffs even if other countries did not. We would of course be benefited even more if they reduce theirs but our benefiting does not require that they reduce tariffs. Self-interests coincide and do not conflict.

Or, (not Friedman)

If other nations have rocky coasts, should we throw stones into our harbors? .

[Thought about __ all my life]

Why do you enjoy making trouble?
You are not President.
Everything is not about law.

[jb]

Why does a lawyer posting on a legal blog care about the law? Hmmm.....