Trump's Other Options Under The IEEPA

As I noted earlier this morning, the Supreme Court struck down the tariffs that the President had enacted pursuant to the International Emergency Economic Powers Act (IEEPA), holding that the IEEPA did not authorize the President to enact tariffs. It is important to realize that, as one article put it, "[t]he court did not say the president lacks authority to impose tariffs. It said this law doesn’t authorize these tariffs." But, as I mentioned in my earlier post, the President has authority to enact tariffs under other laws. For instance, Pres. Trump has already imposed a new 10% global tariff under Section 122 of the Trade Act of 1974, which "unilaterally impose up to 15% tariffs to remedy balance-of-payments issues or prevent 'imminent and significant' depreciation of the dollar." Moreover, "Section 301 of the 1974 law allows Greer to impose tariffs on countries with economic policies that are discriminatory against the US or in violation of trade agreements." So even though the Supreme Court's ruling eliminated the global 10% tariff that had been imposed under the IEEPA, it is already back up under another law. And authorization for tariffs shows up under other laws, according to the article:

    Other options available to the administration, but not cited at the press conference, include Section 232 of the Trade Expansion Act of 1962, which allows tariffs to regulate imports on national security grounds following investigations by the Commerce Department, though duties are meant to apply only to individual economic sectors rather than entire countries; and Section 338 of the Smoot-Hawley Tariff Act of 1930, which allows the president to impose tariffs of up to 50% if he finds “as a fact” that countries have imposed unreasonable charges, restrictions or otherwise discriminated against US imports. 

    Section 201 of the Trade Act of 1974, another option, allows the president to impose tariffs of up to 50% above existing tariff rates on products that threaten “serious injury” to US manufacturers following an investigation by the US International Trade Commission. 

    And the elimination of the fentanyl-specific tariffs on China, Canada and Mexico may give rise to something more draconian than a simple tariff. Breitbart notes, for instance (bold in original):

    Here’s the thing the trade establishment doesn’t want to think about: IEEPA doesn’t just let the president regulate imports. It lets him prohibit them. And it lets him issue licenses as exceptions to that prohibition. Those aren’t implied powers or creative readings. They’re right there in the text of the law: the president may “prevent or prohibit” importation and may act “by means of instructions, licenses, or otherwise.”

    That language points to a mechanism that could reshape the global trade landscape even if every tariff the administration has imposed gets struck down. 

The author envisions a system whereby "Treasury offers to sell Import Authorization Certificates directly to the governments of countries running bilateral trade surpluses with the United States. The purchase price equals a percentage — 20 to 50 percent — of the country’s prior-year bilateral surplus. The foreign government pays Treasury. That’s the transaction. There is no ambiguity about who is writing the check." 

    The real question is why previous presidents did not use these powers to prevent the offshoring of American manufacturing.