Trump’s Tariffs — Legality Under U.S. and WTO Law? — Very Questionable.

 

Two recent CGTN interviews (Feb. 2025) ………………….

https://www.youtube.com/watch?v=toarh82Bgfs&t=6s

https://www.youtube.com/watch?v=C1I9hsWLb7k

 

     Trump’s reliance on domestic legislation that authorizes tariff and trade actions for either national security or foreign policy reasons is very questionable. Federal courts will eventually review these actions. But keeping in mind the president’s constitutional authority in foreign affairs, they will undoubtedly be very careful. We’ll see. Without a doubt his actions under WTO law are clear violations and amount to a repudiation of the global trading system that has developed since 1945.

 

“The ruling was the latest evidence that the biggest check to Trump and his executive power is not Congress or the Democratic party, but America’s courts …. The response from Congress has been pretty anemic ….  If it doesn’t respond to its oversight and its laws and its spending being disregarded, it’s going to give away all of its power and not have much ability to actually perform its constitutional role, which is crucial to our system of checks and balances ….The US constitution gives the president wide powers. But it also gives Congress much authority, especially over raising public money and spending it, and entrusts the courts to enforce the limits on the other two parts of government …. Republican lawmakers have barely commented on these moves (Trump’s tariff actions), in contrast to lawyers and judges …. Some lawyers are now stepping up …. But legal experts argue Trump’s administration may still lose before the Supreme Court …. The bigger unknown would be if the president refused to follow court orders. This could prompt a constitutional crisis of the likes not seen since the civil war …. Courts may in that case order contempt on government officials.” “Courts Last Line of Defense against Trump.” Financial Times (Fe. 18, 2025.

“Trump has threatened 25 percent tariffs on goods from Mexico and Canada, risking immediate disruption of the North American economy, and placed additional tariffs on imports from China, bringing tariffs on some Chinese goods to over 35 percent. On Monday, 25 percent tariffs on foreign steel and aluminum were announced …. To claim the authority to impose these new tariffs, Trump invoked the Trade Expansion Act and the International Emergency Economic Powers Act, two federal statutes that authorize the president to regulate international commerce during a national emergency or to address national security threats. In doing so, he sidestepped constitutional constraints on the executive branch to levy taxes without the consent of Congress …. By claiming tariffs as his preferred weapon, the president has chosen a powerful instrument to reward and harm not only foreign nations but also domestic interests. Tariffs create domestic winners (those who receive protection) and domestic losers (those who must pay higher prices) … We need a renewed framework for managing trade policy while limiting the ability of the executive branch to use tariffs as an all-purpose weapon. Congress has the constitutional and economic justification to create that framework …. But this was not simply a power grab. What Trump is doing with tariffs is a result of a lost consensus about how the United States should interact with other countries in the global economy.” “The Dangers of Arbitrary Trade Policy.New York Times (Feb. 15, 2025).

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About Stuart Malawer

Distinguished Service Professor of Law & International Trade at George Mason University (Schar School of Public Policy).
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