White House officials are already plumbing the depths of the U.S. legal code to find ways to get around judicial orders and carry out President Donald Trump’s plan to impose massive import taxes on goods from nearly every country on the globe.
On Wednesday, the U.S. International Trade court struck down Trump’s use of emergency powers to put tariffs on nearly every nation around the globe and also struck down the tariffs imposed on Mexican, Canadian and Chinese imports by the president with the stated aim of combatting fentanyl and drug trafficking from those countries.
The decision to bar the tariffs, which was put on hold by the U.S. Court of Appeals a day later while the government appeals the ruling, eviscerated major planks of Trump’s trade policy in response to a lawsuit in which the attorneys general of 12 states and a number of small American companies urged the court to strike down the import taxes on the grounds that Trump had exceeded his authority under the International Emergency Economic Powers Act.
But administration officials are already planning a way to pivot to using other powers to get around what they have repeatedly labeled the “rogue judges’ that have repeatedly ruled against Trump.
According to The Wall Street Journal, Trump and his advisers are looking at invoking a never-before-used section of the 1974 Trade Act known as Section 122, which allows for a 15-percent tariff to be placed on imports for up to 150 days, in order to deal with trade imbalances with other countries.
During that period, the White House would then start the process to impose alternative tariffs on individual countries’ exports under Section 301 of the same 1974 law.
Trump used Section 301 on multiple occasions during his first term to impose tariffs on some Chinese steel and aluminum imports, but using that authority takes time because it requires a notice-and-comment period.
The judges that ruled against him said Trump’s “Liberation Day” tariffs, which set a 10 percent baseline tax on all imports and even higher taxes on imports from nearly every one of America’s trading partners, “exceed any authority granted to the President by IEEPA to regulate importation by means of tariffs.”
They also rejected Trump’s use of the emergency powers to tax Mexican, Canadian and Chinese imports because those tariffs don’t specifically “deal with an unusual and extraordinary threat with respect to which a national emergency has been declared,” as required by law.
It’s unclear whether the White House will seek to employ either of those alternate strategies while the case against Trump’s “Liberation Day” tariffs proceeds. Doing so might be seen by the appeals court — or the Supreme Court — as a concession that the Court for International Trade’s decision was, in fact, correct.
Thus far, the White House isn’t even close to conceding that the three-judge panel, which included one jurist nominated to the New York-based court by Trump during his first term, might have been right to say Trump exceeded his authority.
Instead, the president’s top aides have been engaged in a full-throated campaign to attack and delegitimize the little-known court’s ruling as part of what White House Deputy Chief of Staff Stephen Miller called a “judicial coup” in a social media post on Wednesday.
Peter Navarro, Trump’s senior counselor for trade and manufacturing, has been going on the attack in a series of TV appearances in which he has criticized the “rogue judges” of the court, and White House Press Secretary Karoline Leavitt used her opening remarks at Thursday’s White House press briefing to accuse the judges of having “brazenly abused their judicial power to usurp the authority of President Trump to stop him from carrying out the mandate that the American people gave him.”
“These judges failed to acknowledge that the President of the United States has core Foreign Affairs powers and authority given to him by Congress to protect the United States economy and national security,” Leavitt added.
For his part, Navarro has steadfastly denied that Trump’s tariffs could have any economic or political cost for the president or his Republican allies.
When he was asked about a column in the Journal by longtime GOP strategist Karl Rove in which Rove said the tariffs posed a “messaging challenge” for Trump, Navarro became irate and emotional during a Thursday appearance on Fox Business Network.
He also fumed about the “rogue judges” who rejected the administration’s arguments that Trump currently has broad authority to import sweeping tariffs under emergency powers and called Rove a washed-up has-been whose “day has passed about ... a decade ago.”
“He hates the tariffs, he hates Donald Trump,” he said.
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