Does the Smoot-Hawley Act Justify the Trump Tariffs? Probably Yes, Says Jed Rubenfeld

Probably yes, says Jed Rubenfeld; no, says Philip Zelikow.

Sunday, Prof. Jed Rubenfeld (Yale) published an article called The Judges Got It Wrong: Trump's Tariffs Are Legal in The Free Press; here's an excerpt, though you can read the whole thing—and you can read Philip Zelikow's response here:

Legally speaking, the key holding in both cases is that Trump's tariffs are not authorized by the statute his executive orders invoked—the International Emergency Economic Powers Act (IEEPA). The IEEPA allows the president to "regulate" the "importation" of foreign goods in certain emergency circumstances. According to both courts, the phrase "regulate… importation" is too generic to serve as statutory authority for Trump's tariffs. If Congress had intended to give the president the power to impose tariffs of up to 50 percent on countries all over the world in response to what the president believes is unfair discrimination against U.S. commerce, Congress would have said so explicitly.

That's not a crazy position. But both courts—and, it seems, the administration's lawyers—have overlooked something important.

Congress has expressly and precisely given the president the power to impose worldwide tariffs of up to 50 percent on countries he finds to be discriminating against U.S. commerce. Congress didn't do so in the IEEPA, but it did in the Tariff Act of 1930, also called the Smoot-Hawley Tariff Act.According to a provision in that 1930 statute titled "duties to Offset Commercial Disadvantages":

Whenever the President shall find as a fact that any foreign country places any burden or disadvantage upon the commerce of the United States [through any discrimination in duties or regulations], he shall, when he finds that the public interest will be served thereby, by proclamation specify and declare such new or additional rate or rates of duty as he shall determine will offset such burden or disadvantage, not to exceed 50 per cent… on any products of… such foreign country.

Okay, apparently no president has ever invoked this statutory provision and imposed a tariff under it, and admittedly the name "Smoot Hawley" is not exactly covered in glory these days. But the provision quoted above remains in the United States Code, unrepealed and unamended, and appears to fit Trump's trade policy like a glove. In his China tariffs, Trump temporarily exceeded the 50 percent limit, before bringing them down to below that threshold. Everywhere else, he has never exceeded that limit….