Recent U.S. Supreme Court rulings around Donald Trump's tariffs were music to Canadian ears. But they did not deter the President.Kevin Mohatt/Reuters
The courts said no, three times in a row.
In May, the Court of International Trade (CIT) ruled Donald Trump had no authority to impose 10-per-cent tariffs on global imports and no authority, in citing trade imbalances and fentanyl trafficking, to impose even higher rates on Canada. The Trump administration had claimed such authority under the International Emergency Economic Powers Act (IEEPA).
A day later, a district court in Washington, D.C., in a decision reinforcing the CIT, found such tariffs to be unlawful and barred their collection.
In August, the U.S. Court of Appeals upheld the CIT’s decision, ruling that most of the tariffs were illegal because the IEEPA granted no such tariff power. The ruling, which did not require immediate withdrawal of the tariffs, decried the use of them as a negotiating tool on issues like fentanyl trafficking.
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The three rulings were music to Canadian ears. They did not deter Mr. Trump, however. He barged full steam ahead – who cares what the courts decided – in imposing tariffs and using them as blackmail-styled bargaining chips.
And nobody said much. In the American media, the multiple court rulings were largely forgotten, not mentioned in reports. It might have been slightly germane, in reporting his latest tariff actions against Canada, to remind American audiences of their illegality. Didn’t happen.
Ontario Premier Doug Ford’s ad campaign, which cited Ronald Reagan’s opposition to tariffs, would have carried an even greater whack had it referenced the court decisions. But Mr. Trump was incensed anyway, saying in a statement terminating trade negotiations with Canada that the Ontario ad campaign was aimed at influencing the coming deliberations of the Supreme Court on the case. “They only did this to interfere with the decision of the U.S. Supreme Court,” he wrote.
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The top court’s hearings begin next week. Its decision, given how Mr. Trump ’s trade actions have upended global free trade and bludgeoned allies like Canada, will be huge.
Most trade and legal experts see the President’s case as very weak. A JPMorgan survey found that only about 20 per cent of experts think the court will uphold the tariffs.
It looks like good news for Canada. The court’s decision could very well have the effect of rescinding many of his tariffs, stripping Mr. Trump of his rationale for imposing them.
But Canadians shouldn’t get their hopes up. The heavily conservative court could find a way to uphold the Trump tariffs. And even if it doesn’t – even if it censures the President – the Trump team has several other options at its disposal for keeping this tariff war going.
As for the Supreme Court’s decision, it need be recalled that the conservative justices have rolled over to Mr. Trump’s side on many key questions, including the expansion of executive power. It has ruled in his favour on presidential immunity, immigration, electoral eligibility, Roe v. Wade and more.
The court is particularly deferential to executive power on foreign affairs and may tilt to him in this regard. The right-side justices may fear repercussions and threats from the MAGA world if they go against Mr. Trump on a judgment of such magnitude. They might deliver a compromise; a face-saving verdict.
But if the President loses, his legal team has a big Plan B in the works. One option would see Mr. Trump head to Congress, where he has a majority in both houses, to get it to pass legislation granting him expanded tariff power.
Another fallback, as cited by Treasury Secretary Scott Bessent, is to drag out of the woodwork section 338 of the Smoot Hawley Tariff Act of 1930. The Trump team argues it gives the President powers to raise tariffs on nations with unfair trade practices.
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Yet another possibility will be to return to the national security justification used in 2018, under the Trade Expansion Act, to impose steel and aluminum tariffs on Canada and others. The idea that providing those materials to the U.S. somehow constitutes a threat to its national security is viewed as ridiculous by Ottawa, but not by the Trump administration.
Mr. Trump’s belief in the benefits of tariffs is so ingrained that there is no likelihood he will take a Supreme Court defeat sitting down. More likely, it will trigger the mad king’s rage and bolster his determination to continue his tariff war.
Canada would get no break. Given Mr. Trump’s suspicion that the ads of Mr. Ford, who has called him a “tyrant,” constituted interference that may have influenced the court, he could be inclined to hit Canada even harder.