Supreme Court’s Interference Won’t Stop Reciprocity Tariffs

If you think tariffs came to an end with today’s Supreme Court decision, think again.

If you think President Trump’s whole reciprocal trade policy came to an end, think again.

If you think Justice Brett Kavanaugh’s dissent was the right idea, you hit the nail on the head. 

I’m not a lawyer, but it just seems to me the high court’s 6-3 ruling against Mr. Trump’s authority to levy tariffs is really a technical matter. 

After all, if the International Emergency Economic Powers Act of 1977, nicknamed Ieepa, can be used by presidents to regulate trade, including the use of an embargo, why would it rule out tariffs? Which are less than a full throated embargo.

And as I understand it, when Congress passed Ieepa, it didn’t even mention tariffs. So, Chief Justice Roberts offered the full-throated constitutionalist position, that only Congress has the power to tax, and tariffs are a tax, therefore Mr. Trump’s tariffs are ruled out of order, because the Congress has not explicitly voted them in. 

Well, okay, but really Congress has given chief executives latitude in plenty of other legislation to impose tariffs, either permanently or over the short term.

And Mr. Trump is going to use Section 122 of the Trade Act of 1974, which will let him levy up to a 50 percent tariff stretching to about 150 days. And he’s starting to use it today by imposing a 10 percent tariff on countries that have traded unfairly with us for many many years. 

So if he can do that, but they won’t let him impose tariffs under Ieepa, it seems like a technical argument to me, full of sound and fury but signifying nothing.

Then under that same Nixonian trade law, Mr. Trump does have the option to use section 301, which is based on unfair trading practices, including currency manipulation. And section 232, which is the ability to use tariffs to deal with national security threats.

And you bet he will employ both of those. Which he says are even stronger than Ieepa. As Mr. Trump explained today, the “good news is that there are methods, practices, statutes and authorities as recognized by the entire court in this terrible decision and also is recognized by Congress, which they refer to, that are even stronger than the Ieepa tariffs available to me as president of the United States”

Anyway, this all brings me to another related point, and that is Mr. Trump frequently used tariff negotiations as a means of conducting foreign diplomacy.

His recent deal with India for example, to reduce the tariff to 18 percent from 50 percent they stopped buying Russian oil, is a perfect example of his hand-in-glove interaction of tariffs and diplomacy.

Why the Supremes would want to interfere with that is beyond me.

Even though the Supremes didn’t even mention it, the Treasury department can return a couple of $100 billion in tariff revenues through the Bureau of Fiscal Services without really any problems.

Oddly enough the Supremes didn’t even say a word about it. So after all this Scotus rigmarole and legal beagle stuff nothing really changed.

Mr. Trump is fighting for trade reciprocity, to level the playing field, to rejuvenate the American economy, and to attract investment money into this country from all around the world.

The Supreme Court will not stand in his way. This is just the beginning of Mr. Trump’s reciprocal tariffs.

Larry Kudlow is a columnist for the New York Sun. From Mr. Kudlow’s broadcast on Fox Business Network.