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Trump isn't through with tariffs - update (damn!) [1]

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Date: 2025-05-29

Update:

After all my research on Federal Circuit Court of Appeals, I was proven wrong in my assessment. The court issued a stay of the US Court of International Trade decision, leaving all the destructive tariffs in place. This pause will stay in place until June 9th, when both sides will have submitted arguments as to whether the case should remain paused while the appeal proceeds. I made the assumption that the Federal Circuit Court of Appeals would just let the Trade Court's decision stand while the appeal progressed. Especially with all the Obama judge appointees. Well, you know the old saying about assuming...

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Original:

Trump was shot down for his use of the International Emergency Economic Powers Act, but there are still other laws Congress approved that a president can use.

There's still a major weapon with the Trade Act of 1974. It allows a president to negotiate trade agreements and set tariffs.

Under this Act, Congress can approve or disapprove trade agreements, but cannot amend or filibuster.

Section 122 of the Act allows the president to impose tariffs of up to 15% for 150 days. Longer than that requires Congressional approval. This section does not require an investigation first.

There's also the Trade Expansion Act of 1962. Section 232 permits the president to impose tariffs based on the recommendation of the Secretary of Commerce if "an article is being imported into the United States in such quantities or under such circumstances as to threaten or impair the national security." The last use of it was in 2018, when Trump used it to put tariffs on steel and aluminium. It also allows the president to reduce tariffs by up to 80%.

The main weapon of choice will be the Trade Act of 1974. Along with Section 122, there is Section 301, which requires an investigation first. Here, there is no limit on the amount of tariffs. There is supposed to be an annual Section 301 Report done by the US Trade Representative.

International trade and how it is handled goes back to 1947 with the General Agreement on Trade and Tariffs (GATT). The World Trade Organization now tries to work out squabbles between countries, but Trump's heavy handed approach is nothing they can do about.

Trump is already appealing the US Court of International Trade decision to the Federal Circuit Court of Appeals. A decision against him there, and it's finally to the Supreme Court. I am going to assume the Federal Circuit Court of Appeals will let the decision stand.

International trade is not in the Supreme Court's forte. With the US Court of International Trade being the experts, and the appeals court re-affifming the decision, I don't see how they could overturn the decision. Oral arguments would be interesting to listen to.

So, how much time is this going to take? It usually takes the Federal Circuit Court of Appeals 8 to 12 months to issue a decision. Would they fast track it for Trump, like the Supreme Court has? Unknown. The Chief Circuit Court Judge is Kimberly A. Moore, a George W. Bush appointee, and there are 11 other judges. There are a lot of Obama appointees, one more G.W. Bush, one GHW Bush and one Clinton and a Biden.

The remaining tariffs under Section 232 of the Trade Expansion Act of 1962 are on steel, aluminum and autos, citing national security concerns. Of course, that's what Trump claimed under the IEEPA. But these are still in effect.

The US International Trade Court gave the Trump administration 10 days to remove all the tariffs and fix everything.

The question now needs to be asked, is the Trump administration going to follow the ruling at all? So far, there have been many rulings that the administration has ignored and is heading towards contempt of court.

That contempt of court threat could be removed by a provision in the Big Ugly Bill using Federal Civil Rule 65(c) to require a bond to be set for litigants against the government, and if it wasn't set, contempt of court cannot be issued. This is also retroactive to canceling injunctions, which means all of them in the past, if Trump wants to. Unknown if Republicans will strip this out of the bill, the Senate parlimentarian rips it out, which they would, because it has nothing to do with the budget, or if the Senate will ignore the parlimentarian like the House did. It's a really bad provision.

The war of the tariffs is not over. The administration is fighting to get them back, but could face months of delay for the Federal Circuit Court of Appeals to render a decision. They've got the Federal Civil Rule 65(c) trick, but the Senate Republicans are setting a time frame of the budget bill getting passed of July 4th. This is two months of Trump not being able to avoid contempt of court.

Trump could use Section 122 of the Trade Act of 1974 to impose a 15% tariff on everything for 150 days, not needing to use the IEEPA. He can do more using Section 232 of the Trade Expansion Act of 1962, if Howard Lutnick recommends it, which is like asking for a rubber stamp.

Will Trump get tariffs reversed within 10 days or just ignore another ruling while he appeals?

It's a guessing game all around. But you can bet on one thing, Trump is not through with tariffs.

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I do want to mention a White House oddity. Trump was supposed to sign executive orders at 2pm ET yesterday. As of now, nothing has shown up on the WhiteHouse.gov site and there is no reporting of them. It's like everything stopped after the reporter asked about him being called TACO.

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