Here's the complete text [0]. The act authorizes imposition of tariffs on any country that:
> Imposes, directly or indirectly, upon the disposition in or transportation in transit through or reexportation from such country of any article wholly or in part the growth or product of the United States any unreasonable charge, exaction, regulation, or limitation which is not equally enforced upon the like articles of every foreign country; or
> Discriminates in fact against the commerce of the United States, directly or indirectly, by law or administrative regulation or practice, by or in respect to any customs, tonnage, or port duty, fee, charge, exaction, classification, regulation, condition, restriction, or prohibition, in such manner as to place the commerce of the United States at a disadvantage compared with the commerce of any foreign country.
This is pretty specific. The tariffs/customs/dues/whatever don't even have to be unfair relative to what the US charges on that country's imports into the US, it's specifically targeting cases where a foreign country discriminates against US trade over and beyond the dues it charges on other countries' trade.
It'd be very difficult to prove that discriminatory treatment for each and every one of the 180+ countries caught up in Trump's tariffs.
To be frank they will need to do this to 20, maybe 30 countries to cover most of it (money wise).
However, MFN status is full of exceptions. For many countries, the US could plausibly argue that they are being discriminated against despite having MFN status due to one of the exceptions to it
And I haven’t been arguing that the Trump admin is going to win-only that people are underestimating their chances. And even if I’m right about that, they still might lose anyway, and that fact in itself wouldn’t prove that I was wrong.
The fact that the attempt to introduce tariffs using one statute was overturned by this court, doesn’t mean the same court is automatically going to overturn those tariffs under a different statute - different texts, different tests, both the same outcome and the opposite outcome are entirely plausible
And as I said, I don’t actually think these tariffs are a good idea from a policy viewpoint - but that’s largely orthogonal to the question of what courts are going to do to them
I doubt it is that simple.
I don’t know how exactly judges are going to define “reasonable” in this specific area of law-but “reasonable” normally means not just that you have a reason, but also that the judge concludes it is a valid or good enough reason-and different areas of law often have different tests for deciding what reasons are valid or good enough
Republican tariffs, they're complicit. Literally every single Republican in the House voted to shield Trump's "national emergency" [0] from being challenged as invalid.
[0] The National Emergency of... a relatively small amount of fentanyl seized at the Canadian border.
But alright, i guess people import it to the US to illegally traffic it back north. and somehow that makes a majority of the traffic! never stop learning, that's what i always say.
Yet it would be beyond stupid to claim that each person stopped at the border "saved" 20 Americans.
I think the administration would find it easier to prove this than you think. They just have to find some regulation which they claim disadvantages the US compared to other countries. Given most countries have thousands of pages of regulations, it likely isn’t hard to find something in there that they can argue puts the US at a disadvantage-especially since what really matters is not whether it actually does, rather whether they can convince a court that it does
Real example: the US claims Australia bans US beef, Australia insists it is allowed. I believe the real problem is this-Australian regulations say US beef is allowed if the cattle are born in the US, raised in the US, slaughtered in the US… and the problem is the US cattle industry has such poor record-keeping, they intermingle US-born cattle with live cattle imports from Canada and Mexico and can’t produce the necessary paperwork to prove a shipment of beef is purely US-grown and hasn’t been mixed with beef from non-US origin cattle
Now, there is no reason in principle why the US cattle industry couldn’t improve their record-keeping to the point that it meets Australian regulations. But that would cost money and be politically unpopular-so instead US politicians just spread the rather misleading claim that “Australia bans US beef”. What really matters legally, is not the reasonableness of the claim, it is whether they can get a US judge to accept it-and quite possibly they could
And there’s probably several other cases where US companies can’t export their products to Australia because they aren’t willing to comply with Australian regulations. And likely many similar stories for other countries too. And if DOJ lawyers try to argue these cases fit under the legislation you are citing, IANAL but I think they’d have decent odds of success
> it's specifically targeting cases where a foreign country discriminates against US trade over and beyond the dues it charges on other countries' trade.
But, in this Australia case, all they have to do is find another country which can export beef to Australia because it does comply with these regulations, and there is their argument that Australia discriminates against the US. Should it matter legally that these regulations are reasonable and not intentionally discriminatory and US inability to comply is due to US unwillingness to pay for the reforms necessary to do so? I think it should, but entirely plausible that a judge decides it shouldn’t
EDIT: to be clear, I think these tariffs are pretty stupid-but whether something is stupid is a separate question from whether courts will uphold it. Many courts will uphold a lot of things which you or I know to be stupid
We know how it happened: Heard and McDonald Islands is an uninhabited Australian territory off the coast of Antarctica. In the 19th century, it was inhabited by sealers for an extended period (mostly Americans, some Australians too)-but they left after hunting the seals to extinction. In the 20th century it became a nature reserve, although it saw multi-year occupation by scientific research bases. Since the 1990s, no humans have been there except for brief visits; apparently nobody has been there in person for over a decade. It is illegal to come ashore without permission from the Australian government, and their policy is to almost always refuse permission (with rare exceptions for scientific research).
Yet despite all this, ISO 3166-1 gave it a country code, HM. And US government databases ended up showing imports from it, almost certainly due to data entry errors, the imports having really come from somewhere else. But it appears nobody was paying attention, so it ended up as a tiny trade deficit in official US trade statistics. And then the Trump administration mindlessly applied the rule “IF official US trade statistics show a deficit THEN impose tariff”. And still nobody noticed. And then after they publicised it, somebody did, and they were widely mocked for the mistake, and I believe this specific tariff has since been rescinded.
Most likely HM was actually a typo for Hong Kong (HK) or Honduras (HN)-adjacent keys on the keyboard. Or maybe the M is correct and the H is the typo, in which case it could easily have been The Gambia (GM) or Bermuda (BM) or Jamaica (JM)-also adjacent keys
Australia has another uninhabited territory (Ashmore and Cartier Islands), and another near uninhabited (Coral Sea Islands, staffed by a tiny rotating crew of government employees)-but, for whatever reason, ISO never gave either its own country code, [0] so this couldn’t have happened to them. (Likewise, Australia claims a big chunk of Antarctica, a claim which most countries-US included-don’t recognise-so the Australian Antarctic Territory doesn’t get its own ISO code, it gets subsumed under Antarctica’s, AQ.)
[0] I guess the reason may be land area - Ashmore and Cartier Islands have a land area of slightly over a square kilometre, less than a square mile; Coral Sea Islands have a land area of 3 km^2, which is slightly over one square mile; by contrast, Heard Island is 368 km^2 (142 sq mi). ISO generally resists giving codes to uninhabited territories unless they contain significant land
That they don’t buy stuff is only half the story. The other half is they export a lot of primary produce - to the US, primarily frozen fish. The US imports a lot of food so they are interested in Falklands fish. US exports are much higher up the value chain, and Falklands having such a small population has rather limited demand for those high value exports-hence the inevitable trade imbalance.
Which isn’t saying US tariffs on Falklands is good policy-I think it is stupid.
Compare a country like Australia-like Falklands, Australia exports a lot of stuff the US wants to buy. Unlike Falklands, Australia has a decent sized relatively well-off population, who buy a lot of stuff from the US-as a result, the US actually has a trade surplus with Australia. Now, of course, Australia is on a completely different scale from the Falklands: but my point is, if Falklands had a ratio of primary production to population closer to Australia’s, the US would quite possibly have a trade surplus with it too, albeit obviously a smaller one-Australia has around 7800 as many people as Falklands, but only 750 times the primary exports - meaning on a per capita basis, Falklands has around 10 times the primary exports of Australia.
How is this not what I'm saying?
Go you.
If the administration put out all their executive orders in spelling-mistake-riddled crayon, it would also be “practically irrelevant”, but it would similarly show the level competence behind the tariffs’ implementation.
Well, sort of. The threshold is much lower than that; the law is explicit that no regulation is necessary:
>> by law or administrative regulation or practice
Eventually the courts have to agree/disagree if someone starts challenging it up the chain.
Whether that dairy tariff is particularly onerous on the US, worth antagonizing our closest ally for, that would be the political question, but certainly it's definitionally unequal.
Canada's Dairy Tariff is specifically designed to protect a specific local industry, which exists, is of national interest to keep, and which could come under threat from cheap alternatives imported from abroad. It's specific, targeted, and serves a valuable purpose. They have been in place a long time, and provide a stable trading environment making the future easier to predict.
Trumps tarrifs are the complete opposite. He could have done tarifs well, but he's lazy and so opted for "easy" instead. By tarrifing countries you mix all industries together.
For example coffee. The US imports 99% of their coffee. The local coffee industry is tiny, and limited to Hawaii. There's no national interest, no local jobs, nothing. Tariffing coffee just makes it more expensive.
No one is planting coffee trees. Partly because the US has the wrong climate, but also because growing new trees (or building a factory) takes years, and a lot of investment. That means confidence that the situation today will last long enough to get a return.
In truth the tarrifs seldom make it past the weekend, or a couple weeks, then they're suspended. The administration openly admits they're negotiating "trade deals". So, I can't invest anything based on current tarrifs because they're very impermanent.
This nonsense is not about whether tarifs are good or bad. This is about how they gave been done (which is epically badly, and stupidly.)
On the upside a generation of future kids will learn about this, and how doing the right thing badly is worse than doing nothing at all.
I have spent ten days of my life in Canada and I learnt of the tariffs by news reports concerning people driving to USA, loading up on milk, coming home.
Tariffs are not always stupid. But in most cases there is a better alternative.
E.g. Canada could subsidise domestic milk producers. (We used to do that in New Zealand)
There is a lot of nonsense talked about economics ("tariffs always bad" is an example) because there are strong incentives at work for the actors. It makes it very difficult for policy makers to have good, responsive, effective economic policy.
Money and politics? What could go wrong....
IMO tarifs are preferable to subsidies. Subsidies encourage over production, plus still places the industry at risk. Tarifs just incentivize purchasing local. Plus for whatever revenue there is, it's an income to govt coffers. Whereas a subsidy is an expense. And ultimately the cost is born by the consumer of that product, not the wider tax base.
So, well targeted, it's a more effective tool than a subsidy, and much less prone to waste or corruption.
Put another way, a tarrif is much cheaper than a subsidy (and tarrif makes for a better outcome.)
That's largely acceptable, and certainly preferable to underproduction, for resources that we simply can't do without. Dairy was (and still is) considered one of those resources as a superfood. Now maybe milk might not hold up anymore as being so critical to childhood nutrition (though I'm skeptical), but I think the reasoning behind it makes sense.
> Tarifs just incentivize purchasing local.
Sure, they also incentivize not eating. But commodification of basic resources is nothing new to americans, I suppose.
Some things are worth everyone pitching in for. Tariffs place the burden of living here on the individual. I don't really see any benefit from this.... fuck local businesses if they can't compete. The entire pitch of living here is that we'll let the market determine every aspect of our lives; why would we not double down when it came to letting businesses fail?
Government sets a supply goal and buys that amount from farmers and then resells to the grocers / public.
It's been this way for a long time. The tarrifs are there to control for a case of oversupply in the market, but I also seem to remember that those supply targets haven't actually been met in a single year so the tarrifs effectively don't apply.
Like the US does? Isn't that just a race to the bottom then?
The Canadian supply management system means that those that purchase milk pay the amount needed to keep the Canadian dairy industry afloat. If you don't buy milk you don't pay.
With subsidies everyone pays, regardless of whether you use the product(s) or not.
Of course subsidies make the price cheaper, which helps with cost of living, which can be quite progressive (and often children are the ones that drink the most milk).
Further, the US subsidies milk even though its consumption has been falling for decades:
* http://www.ers.usda.gov/amber-waves/2022/june/fluid-milk-con...
Which solution is better / "best"? I don't know.
(Am Canadian.)
I've yet to see a good use of tariffs.
You might not agree with that politically but I think the logic is defensible and discussion should be around the bigger picture of what else is done to support key industries or the rate structure rather than whether it should exist conceptually.
Below is a sketch of a keyhole solution to this problem, that would be cheaper than tariffs and cause less disruption to the overall economy:
Recipients could prove that they have capacity either directly by just pointing to their output. Or if they want to claim standby capacity and want to get paid for that one as well, there would be randomised drills every so often where the government asks industry to produce a large quantity of the relevant items on short notice. Anyone who fails would forfeit a huge bond.
To give more details: suppose we want to make sure there's enough capacity to produce one million artillery shells per year. The government would auction off the capacity obligations to the lowest bidders. Companies that already produce the relevant items anyway would presumably have lower costs in fulfilling these obligations, thus they would be the primary bidders. But there might be some companies who operate purely on standby and don't keep a production running.
Being subject to a randomised production drill would be a huge expense, even if the government pays for the output, because of all the fixed costs you have in actually turning on unused capacity, even if only for a short time. But if the drills are truly randomised, insurance companies would really love to insure against them to spread out the load. Insurance companies could also insure against failing the challenge, and that would turn the insurers into private sector inspectors, because they'll want to make sure they don't undercharge companies for the risk of failing to meet their obligated capacity.
(See https://en.wikipedia.org/wiki/Catastrophe_bond for why randomised risks that are independent of the state of the general economy are so beloved by investors.)
If there's not much domestic production, then keeping standby capacity would be more expensive for the companies and thus for the government. Conversely, paying for standby capacity is a subsidy for the fixed costs of the relevant industries. (However it's a very targeted subsidies, because it goes to the lowest cost bidder. It's not sprinkled indiscriminately like a watering can.)
---
About defense related tariffs: putting tariffs on your closed allies like Canada and the rest of NATO doesn't make any sense. Steel produced in Canada is as good as steel produced in the US when it comes to defense. (Actually, it's a bit better in some respects, because Canadian steel workers don't have nearly as much political clout in the US as American workers and unions, thus the administration can't be blackmailed and coerced by them as easily.)
Even worse: the US administration allegedly wants to pivot to containing PR China and protecting Taiwan. Putting a 32% tariffs on Taiwan itself and 24% on key regional ally Japan is rather counterproductive.
But I think we both agree that Trump's tariffs were and are stupid, and we are discussing the best case for tariffs here.
So in the best case, it would still be silly to put defense-motivated tariffs on your closest allies.
---
Another addendum: the mechanism described in the first part might not work so well for software, because it's not standardised and has practically only fixed costs, no variable costs.
However, you could address that with other customised policy. Eg requiring open source software (especially when it's bought from overseas), and looking for specialised mechanisms for locals to demonstrate maintenance skills on standby or so.
in practice, it didn't work because the US really can't decide where it wants to go with EV's. Fighting over standards, some trying to keep holding things back to sell ICE vehicles, etc. Inflation also didn't help, so a lot of cars just blew up in cost. So because of the indeisive industry, the tarriff is just a safeguard instead of an opportunity.
That's the tired old 'infant industry argument'. It's just as bad now as it always has been. Compare also Brazil's ill-fated attempt at creating a home-grown computer industry.
> in practice, it didn't work because the US really can't decide where it wants to go with EV's. Fighting over standards, some trying to keep holding things back to sell ICE vehicles, etc.
I'm not sure who you mean by 'the US'? Producers and consumers of EVs should make their choices.
> Inflation also didn't help, so a lot of cars just blew up in cost.
Inflation is a general rise of the price level. If both input costs and prices you can charge to customers go up in proportion, inflation doesn't make a difference. Just like moving from metres to yards doesn't make the distance between London and Paris larger.
Canada has a dairy tariff after a certain volume is imported. The US has not hit that volume and so the tariffs are currently zero.
> Last year, Canada was the second-highest importer of U.S. dairy products, buying about $1.14 billion US, and it was the United States' top export market for eggs and related products.
* https://www.cbc.ca/news/politics/trump-canada-us-dairy-trade...
USMC also has a carve out for allowing more dairy imports:
* https://ustr.gov/trade-agreements/free-trade-agreements/unit...
It should also be noted that the US subsidizes its dairy farms, which could be considered an unfair advantage and justification for anti-dumping measures (Trump's logic for many Chinese imports, e.g., steel). So Canadian dairy products cannot compete in the US market because they're 'too expensive' compared to what US farmers are selling things at: is that fair?
That’s such an absurd and nonsensical thing to say. How did you come up with it?
If you think it’s a terrible argument, why do you think the courts would think otherwise?
This is misunderstanding civics. Laws are not algorithms. All laws must be interpreted. The government organ responsible for interpreting laws is the judiciary, definitionally.
It's not like there's a condition in a law saying "get the courts to agree". It's that there is a disagreement (among parties with standing) about what the law means. And so they fight about it in court, which is why we have courts.
IMO that's being awfully generous.
(Case in point: Trump's travel ban last term).
Has the supreme court been refusing to hear an unusual number of cases against Trump.
I know the common feeling is that they have been siding with him more than usual, but that isn't avoiding scrutiny.
Argue, perhaps, but ultimately a court could decide that no, it's not a disadvantage. And that seems to be exactly what the court has done here?
You're omitting a key clause: a burden or disadvantage . . . by any of the unequal impositions or discriminations aforesaid
The "unequal impositions aforesaid" are:
1. a country that imposes duties/tariffs on the US but "is not equally enforced upon the like articles of every foreign country"
2. discriminates "in such manner as to place the commerce of the United States at a disadvantage compared with the commerce of any foreign country"
So the law only gives authority for retaliatory tariffs when the US is specifically being targeted.
Why? If the GP quoted the law correctly and the plain-language reading is also the legal one, it's all about what the president finds as fact. I don't see how that language gives the courts space to second-guess the president's findings.
Facts are still different than opinions, that statute doesn't give him unchecked power to declare any crazy idea as fact.
I don't know about the president, but IIRC, juries have a quite wide latitude decide what facts they find ("In Anglo-American–based legal systems, a finding of fact made by the jury is not appealable unless clearly wrong to any reasonable person", https://en.wikipedia.org/wiki/Trier_of_fact).
Saying "whenever the President shall find as a fact" seems like it's giving the president the authority to determine what the "facts" are, and not putting any conditions on how he does that or subjecting them to second-guessing.
That’s the prerequisite to the lawful exercise of power.
When it comes to china, this is definitely true. The rest of the world not so sure
There’s probably a different thread on this but, TACO and the damage of having your own courts nullify the tariffs are a huge strategic L for the orange man.
Surely there's a mechanism through the courts for someone to challenge illegal tariffs on their imports if the president declares "There's a 50% tariff on everything because I woke up in a bad mood today and it's unfair of other countries to be doing that."
What you're describing is the Marbury tail wagging the Article II dog. The focus of the Constitution is allocation of power. The focus isn't creating a system where courts micromanage how the other two branches of government exercise that power. Marbury therefore goes to great lengths to draw lines between an executive's "ministerial" actions, which courts can supervise, and those that involve "discretion," which courts cannot. Marbury thus says:
> [W]here the heads of departments are the political or confidential agents of the Executive, merely to execute the will of the President, or rather to act in cases in which the Executive possesses a constitutional or legal discretion, nothing can be more perfectly clear than that their acts are only politically examinable. But where a specific duty is assigned by law, and individual rights depend upon the performance of that duty, it seems equally clear that the individual who considers himself injured has a right to resort to the laws of his country for a remedy.
The Tariff Act provision here is a classic example of something that Congress has entrusted to the President's discretion. The statute says: "Whenever the President shall find as a fact that any foreign country places any burden or disadvantage upon the commerce of the United States by any of the unequal impositions or discriminations aforesaid..."
Insofar as the courts can properly review such actions, their rule is to determine whether the prerequisites for invoking the authority have been satisfied--namely, did the President make a finding? Here, the President did make a finding. At that point, the courts' jurisdiction gives way to the President's discretion. The courts don't get to decide whether the President's finding is correct, or even whether it makes sense. At that point, the act is "only politically examinable."
This is not a novel concept. When courts review laws made by Congress, they don’t get to second guess Congress’s economic reasoning. Congress could ban interstate transportation of beer on Tuesdays. As long as the law was within Congress’s commerce power, courts don’t get to second guess the rationale for the law.
In particular, Section 338 requires a factual finding (from POTUS, which is not directly reviewable) but then also tasks USICT with "ascertaining" the facts. It doesn't explicitly give USICT ability to review the factual finding, but it's a very plausible argument that if USICT is tasked with ascertaining facts and those conflict with POTUS's declaration, then POTUS is exceeding statutory authority.
338 has never been used and it's not clear it'd pass Constitutional muster to begin with.
This seems incorrect
> cases in which the Executive possesses a constitutional or legal discretion
In this case though the laws wording would determine where the discretion starts and ends. "... whenever he shall find as a fact that such country—" so the president is limited by a.1 and a.2[1], the president was only granted discretion in under those proscribed limits.
So a find that says ~"neither a.1 or a.2 is occurring therefore I impose a tariff as president"(claiming no conditions to impose a tariff under the law are met but declaring a tariff anyway) seems reviewable by the court from your sources. Only having a finding is not enough, the finding has to follow the limits of discretion put forth by the law in question.
[1] https://www.law.cornell.edu/uscode/text/19/1338
edit to remove double negative
Asking weather if follows a.1 and a.2 does not seem 100% independent of asking if it is correct or not.
"I as president claim a.1, and a.2 are not being violated their for the law allows me to impose a tariff"
"I as president stubbed my toe this morning therefore a.1 and a.2 have been violated and I will be imposing a tariff."
"a.1 and a.2 have been violated, no I will not tell you how, therefor tariff."
You are saying it is black and white, but it does not seem so in the examples above.
> That may be true of the NEA, whose Court Nos. 25-00066 & 25-00077 Page 41 operation requires only that the President “specifically declare[] a national emergency.” 50 U.S.C. § 1621(b); see also Yoshida II, 526 F.2d at 581 n.32. 13 But IEEPA requires more than just the fact of a presidential finding or declaration: “The authorities granted to the President by section 1702 of this title may only be exercised to deal with an unusual and extraordinary threat with respect to which a national emergency has been declared for purposes of this chapter and may not be exercised for any other purpose.” 50 U.S.C. § 1701(b) (emphasis added). This language, importantly, does not commit the question of whether IEEPA authority “deal[s] with an unusual and extraordinary threat” to the President’s judgment. It does not grant IEEPA authority to the President simply when he “finds” or “determines” that an unusual and extraordinary threat exists.
That is very interesting. It assumes that the president is truthful
We're pretty sure there's at least one fatal bug in the Constitution, thanks to Kurt Goedel [1], but I don't think anyone has definitively nailed down just what the bug is yet. Maybe this is a candidate.
Which makes sense, since that would be uncomprehendingly stupid.
That quote is from the Tariff Act of 1930. The government didn't argue this was the authority for the presidents actions.
The courts aren’t making foreign policy. That’s a strawman argument.
The President also doesn’t have unlimited powers. It’s President, not King or Dictator.
The President must act within the powers granted by law. The court has determined this act was outside of the law.
Aside: I recommend the phrase "import taxes" over "tariffs", because a disturbingly large portion of my neighbors still don't seem to understand WTF the latter really is.
Hell we don't even need to go that far afield: your logic implies all taxes are foreign policy, as they all affect foreign trade.
What's the foreign policy goal of the blanket tariffs across every country? Hint: There isn't one.
Its stated goals are revenue generation (Congress's job) and domestic economic development (not foreign policy)
As of blanket tariffs across all countries not being foreign policy I tend to disagree, it’s a policy of protectionism. I just don’t think this particular foreign policy falls under executive oversight, and should originate in Congress.
The case when tariffs fall under foreign policy is only when used to achieve a foreign policy objective only in response to an "unusual and extraordinary threat".
Taxes can be for raising revenue, but they can also function as clubs for changing behavior. Cigarette taxes, for example, have the purpose of deterring people from smoking.
Tariffs similarly can serve as clubs against foreign countries. You might have a tariff on China to get them to change their domestic policies. In that capacity, the tariff is functioning as a foreign policy tool; the revenue generation is incidental.
https://www.cnn.com/2025/05/28/business/us-court-blocks-trum...
That seems to not agree with your "power Congress gave" characterization.
The major questions issue shows how out on a limb this court is. There’s currently a circuit split on whether MQD even applies to the president.
This statement is completely speculative. There is no evidence that substantive negotiations are happening on any trade deals.
>> There’s currently a circuit split on whether MQD even applies to the president.
The president is not a party to this suit so I don’t understand what this statement has to do with anything.
https://www.politico.com/news/2025/04/25/trump-200-trade-dea...
You have somehow put yourself into a position of having to argue that an enumerated power of Congress actually belongs wholly to the executive so long as the executive has some constitutionally legitimizing purpose for the application of that power. I think you must be doing this for sport, just to see if you can wriggle out from the contradictions.
And I never said the tariff power belongs to “wholly to the executive.” My view is that economic warfare between countries falls within the scope of Congress’s delegation of tariff authority. And under existing precedent, that’s a sufficient “intelligible principle” to avoid non-delegation problems.
Sure he does. The various tariff-related acts don't give the president carte blanche to set tariffs whenever he pleases. The acts give him the power to enact tariffs under certain conditions. If the president cannot convince a court that "having a trade deficit" falls under one of those conditions, then a court should, very correctly, tell the president he cannot enact those tariffs.
> The President makes foreign policy
That's a rather simplified view of the president's constitutional powers; the reality is more complex, and in this case that complexity does matter.
Right, but the “condition” in the law is that the President first makes a “finding” that other countries have engaged in unfair treatment. The president only needs to convince the court the finding has been made. But whether a trade deficit results from trade barriers or something else is a decision that Congress has delegated to the President to make.
It's unclear to me if you think this is just a true statement of how Executive power works, or if you are arguing that the correct standard of review for a very restricted legislative delegation of authority is rational basis scrutiny.
[1]: https://en.wikipedia.org/wiki/Loper_Bright_Enterprises_v._Ra...
A tariff is not foreign policy. It is a tax levied on American companies.
The congress never gave Trump the power to do this. Of course they didn’t refuse it either..