What, Pray Tell, is the Statutory Basis for Unilaterally Imposing a Presidential Lese-Majeste Tariff on Canada?

Governmental Truth Social posts announcing some action tend to have three principal flaws. One is that they don’t cite a statutory or constitutional basis. Another is that most government social media posts, on any social media platform, are made by young, or at least youthfully stupid, twerps who lack meaningful authority. (Sometimes, as in the case of the DHS Twitter page, the phrase should read “young white-Christian-nationalist neofascist twerps.” Again, in the absence of discipline or dismissal, it must be remembered that the official constitutional and political theory of this executive branch is that this means the president himself is a white-Christian-nationalist neofascist twerp. This is not an insult; it’s an axiom.) The third is that any elected official with meaningful authority who posts personally on Truth Social and/or other social media platforms is presumptively a jackass. The first and third flaws lead us to Donald Trump’s announcement via Truth Social that he is imposing an additional ten percent tariff on Canada. Bask in the Lincolnian eloquence:

Canada was caught, red handed, putting up a fraudulent advertisement on Ronald Reagan’s Speech on Tariffs. The Reagan Foundation said that they, “created an ad campaign using selective audio and video of President Ronald Reagan. The ad misrepresents the Presidential Radio Address,” and “did not seek nor receive permission to use and edit the remarks. The Ronald Reagan Presidential Foundation and Institute is reviewing its legal options in this matter.” The sole purpose of this FRAUD was Canada’s hope that the United States Supreme Court will come to their “rescue” on Tariffs that they have used for years to hurt the United States. Now the United States is able to defend itself against high and overbearing Canadian Tariffs (and those from the rest of the World as well!). Ronald Reagan LOVED Tariffs for purposes of National Security and the Economy, but Canada said he didn’t! Their Advertisement was to be taken down, IMMEDIATELY, but they let it run last night during the World Series, knowing that it was a FRAUD. Because of their serious misrepresentation of the facts, and hostile act, I am increasing the Tariff on Canada by 10% over and above what they are paying now. Thank you for your attention to this matter!

Pause briefly to observe that the ad was placed by the government of Ontario, not the Canadian federal government–federalism being the form of government, now largely unknown to the United States, under which Canada still operates–so that the president’s statement is itself, by his terms, rather FRAUDulent. Assume for a second that Trump’s statement is not a lark, a lie, a threat, or whatever the hell “trolling” is. On what lawful basis is this tariff imposed?

Section 232 of the Trade Expansion Act of 1962 delegates to the President the authority to impose tariffs to adjust the import of articles of commerce that the Secretary of Commerce finds are being imported in such a way as to impair national security. On no fair reading of the statute can that provision be said to apply to an across-the-board tariff on all imported Canadian goods, both because the ad did not in the slightest impair national security and because there is no nexus between the import of any good, the “way” it is being imported, and the buying of an advertisement by a single provincial government. In any event, a tariff under this section requires “an appropriate investigation” by the Secretary of Commerce “to determine the effects on the national security of imports of the [particular] article.” What investigation has there been and how has it been “appropriate?”

The Trade Act of 1974 permits presidential impositions of tariffs to respond to a surge in imports that is causing or threatening serious injury to a U.S. domestic injury.” This section is even more clearly inapplicable. And it, too, generally requires an investigation, whose specific inquiry has to do with finding relevant importation of “increased quantities” of a good.

The same legislation allows the United States Trade Representative to impose tariffs in response to actions that violate the rights of the United States under international agreements or that burden U.S. commerce in unjustifiable, unreasonable, or discriminatory ways. Whatever else one might say about the ad, it can hardly be said to burden U.S. commerce. (The ad in fact can only improve U.S. commerce, both because the Trump tariffs have been ruinous for United States commerce and because, in a concrete way, it represents money in the bank for the American broadcasters who sold the ad time.) To even argue the facts is to ignore the degree to which the statutory meaning requires twisting to bring it within the realm of argument. But no matter; even the twisted reading does not apply. Nor does the section of the Trade Act of 1974 that allows the president to take measures to address fundamental international payments issues.

The regime has bruited about the idea of using Section 338 of the Tariff Act of 1930 as a means of permitting authoritarian presidentialism in the trade realm. That provision involves discriminatory trade practices. It is irrelevant here.

How about IEEPA? Assuming it allows the President to unilaterally impose tariffs at all, what “unusual or extraordinary threat…to the national security, foreign policy, or economy of the United States” is presented here? How is buying or posting an ad of this sort a threat to any of these things? Particularly when it is made by a provincial government and not the federal government? A reasonably but not abjectly charitable reading of the president’s post indicates that he gives two specific reasons, and only two reasons, for imposing a tariff here: because the ad misrepresented the facts, and because it was hostile either to post it or, perhaps, to refuse to take it down when Donald Trump demanded that it be taken down. Even if one treats the ad as misleading rather than basically correct, both reasons are altogether ridiculous. The second, and the general air of personalism that suffuses the post, again demonstrates the extent to which this executive branch is pursuing an across-the-board policy of punitive action, law and the economy be damned, for violations of lese majeste. But even the ridiculous arguments don’t come close to the realm of “unusual or extraordinary.”

A third reading is absurd but amusing: That the “unusual or extraordinary threat” the ad poses is that it might somehow encourage the Supreme Court to faithfully, fearlessly apply the law and hold that a number of his tariffs were unlawful. Heaven forfend!

A fourth argument has been added after the fact, a major job of both the rest of the regime and the regime’s apologists being to come up with rationales other than those actually offered by Mr. Trump and then hypnotize themselves into believing them. This is that the ad constitutes “election interference.” That is, of course, not what Trump himself said in the first instance; this is just one of countless instances in which Trump’s apologists have made clear that they fear and admire his success but have contempt for his mind, his temper, and his whims and appetites. To credit that rationalization requires one not only to ignore the president’s own words, as if he is a child, but also to conclude that an ad of this sort is not only unusual or extraordinary but that it is an unusual or extraordinary threat. To believe that is to be a liar or a fool. I enjoyed debate as much as the next high school kid. I also grew up.

In sum, the answer to the question is: 1) There is no statutory basis. 2) There is a reason for the tariff penalty: Trump was embarrassed and angered by the ad. Oddly enough, Congress did not delegate to this or any other president the authority to impose tariffs on the grounds of personal offense.

Whether, if the president explicitly imposes a tariff for reasons that provide him with no legal authority whatsoever to do so, the courts are obliged to cover their ears and eyes and pretend he didn’t say anything is quite beside the point. (If the Court is willing to treat what should at best be a strong but rebuttable presumption, one that can be rebutted by the president’s own explicit and emphatic statements, into an inflexible rule, then so much the worse for legal doctrine.) I acknowledge again a key role that judicial review plays in our current landscape: It allows quondam legal conservatives to maintain (and profit from) a pretense of being “conservative legal commentators,” while remaining cowardly or self-servingly silent about grossly un- or anti-conservative violations of the law. But judicial review, with its particular doctrinal mechanisms to ensure judicial manageability and interbranch respect, is not the whole of the law. The president has a first-order obligation to faithfully execute the law. And citizens–and, God knows, “conservative” legal “commentators”–likewise have an obligation to ask whether a key legal official is faithfully interpreting applicable law, and to speak up loudly and clearly when they think the answer is that the president is abusing or ignoring it.

These criticisms aren’t personal. (To the extent that they accurately describe any individual or individuals, however, I should certainly be understood as suggesting that those individuals are indeed gutless cowards or immoral villains, or both, and that it’s an especially glaring indictment of any soi-disant conservative intellectuals and academics who fit the bill.) Nor by any stretch are they meant as an indictment of conservatism. To the contrary, as I wrote here the other day, this is an essential time for conservatives. Liberals too, for that matter, since the regime is openly at war with both liberalism and conservatism. But conservative voices and principles are especially urgently needed right now. This regime, like all regimes of an authoritarian bent, has tested the basic qualities of plenty of institutions and people. By no means have all or even most of the failures of will and virtue belonged to conservatives, unless one assumes that every university, billionaire, elected official, bureaucrat, foreign state, and law firm that bent the knee in the name of “prudence” is ipso facto conservative. The failure here isn’t philosophical; it’s human.

But it is a failure, and a stunning and disappointing one. I never thought I would live in an era of American life which suggested so profoundly that an American conservative, or at least many who still purport to identify as such, is someone who stands athwart history, whispering Never Mind.