No matter how much business groups and Republican senators hate President Donald Trump’s Mexico tariffs, there may be no stopping them before Monday, and rolling them back if they’re put in place is a daunting prospect.
Congress has constitutional authority over trade and could pass a law to block the president’s action. But partisan gridlock and decades of delegating responsibility to the president will complicate any legislative challenge to Trump’s tariff threat.
And while legal scholars say Trump’s decision to tap emergency powers to leverage trade policy over Mexico’s immigration laws is questionable, it’s also hard to defeat in a lawsuit, given legal precedent and the ambiguity of the statute the administration is citing in this case. Many business groups have criticized the policy, and the U.S. Chamber of Commerce has said it is “exploring what legal options might be available,’’ according to Chief Policy Officer Neil Bradley.
Trump is not the first president to stretch his power to act unilaterally, but his administration has especially turned to national security and emergency provisions to pursue its agenda. Congress already failed to halt Trump’s previous emergency declaration, and court challenges to other Trump policies have had limited success.
“Challenging the action of a sitting president when he declares a national emergency I think is difficult,’’ said David Gantz, a law professor at the University of Arizona and former member of panels that settle disputes involving the North American Free Trade Agreement.
Unless there is a breakthrough with the Mexican government over the flow of undocumented migrants to the U.S., Trump’s first round of 5% duties on all Mexican imports will take effect Monday, set to rise incrementally every month to reach 25% in October.
On Friday, a Mexican delegation is set to continue to negotiate with U.S. officials in Washington over what immigration measures would be sufficient, but Vice President Mike Pence said Thursday that not enough progress had been made and “at this point the tariffs are going to be imposed on Monday.”
The threat has rattled markets and prompted economists to forecast an increased risk of recession in the world’s largest economy because trade between the U.S. and Mexico is so integrated. An all-out trade war would lower global GDP by 0.8% or $800 billion by mid-2021, according to Bloomberg Economics.
Recess, disunity, and a grim veto threshold
In theory, lawmakers are the best guard against executive overreach. Yet in practice, narrow majorities and Trump’s enduring popularity among Republicans make it hard to reach the vote threshold to overturn a veto. And with Congress in recess until Monday, there will be no chance for legislation before the first round of tariffs.
The simplest and most likely option is for Congress to pass a resolution of disapproval to invalidate the emergency Trump uses to justify the tariffs, according both a Democratic and a Republican aide. This would gut Trump’s authority, without requiring more intricate policy changes.
House Ways and Means Chairman Richard Neal, a Massachusetts Democrat, pledged to introduce this resolution if Trump moves ahead with the tariffs.
Congress has tried this once already. Both the Republican-led Senate and the Democratic-led House passed a measure to end Trump’s February emergency that sought to divert funding for a border wall, but that effort died when the House couldn’t override his veto.
Most House Republicans are still likely to stick by Trump. While GOP Senators have grumbled about the Mexico tariffs, House Minority Leader Kevin McCarthy, a California Republican, said such public division hurts the White House’s ability to cut a deal.
Congress could also pass a new law altering the International Emergency Economic Powers Act, or IEEPA, that Trump is citing to claim the authority for these particular tariffs. This would be an even trickier endeavor in a divided Congress, because it would be complicated and time-consuming to rewrite a fundamental law governing foreign economic policy, according to the Democratic aide.
Such a measure would face the same challenge reaching a veto-proof majority. And IEEPA is an important statute that gives the executive branch power to impose sanctions on foreign entities.
Senate Finance Chairman Chuck Grassley, an Iowa Republican, is working on a separate bill to curtail Trump’s previous steel and aluminum tariffs that cited Section 232 of the Trade Expansion Act. Grassley’s bill could potentially be expanded to address IEEPA, but there has been little momentum on the underlying bill.
See you in court, maybe
Any company, industry association or other entity that wants to sue to block these tariffs would probably target IEEPA or the underlying emergency declaration, according to legal scholars. Jennifer Hillman, a former World Trade Organization judge who teaches at Georgetown University, said the easiest legal challenge would question Trump’s tariff authority under this statute.
Hillman said another potential legal argument is that goods were purchased and under contract before Trump tweeted about imposing duties on them.
A lawsuit in the U.S. Court of International Trade or a federal district court could also challenge Trump’s declaration of a national emergency, said Scott Anderson, a fellow in governance studies at the Brookings Institution. Anderson said another option would be to argue that IEEPA is actually unconstitutional.
While “it’s just laughable” to think Congress intended to allow a president to impose sanctions for an immigration dispute, Trump can argue the statute is ambiguous and intended to give a president broad discretion, said Raj Bhala, a specialist in international trade law at the University of Kansas School of Law.
In its defense, the Trump administration can also point to the precedent of President Jimmy Carter using IEEPA to freeze assets of the Iranian government during the Iran hostage crisis, Bhala said.
Mexico could play a NAFTA card
Both Mexico and the U.S. are still party to Nafta, so that could be one avenue for Mexico to pursue a challenge. But that would require both countries and Canada to name someone to a three-person panel to review the complaint, and the U.S. can simply refuse to appoint anyone, Gantz said. “It’s pretty hard for me to imagine why anything would happen there,’’ he said.
Mexico could alternatively seek to challenge the tariffs at the WTO, but those cases can take three to five years.
House on shaky legal ground
The Democratic-led House of Representatives could sue to block the tariffs, but it would probably lose in court, according to Bill Reinsch of the Center for Strategic and International Studies, who served in the Commerce Department during the Clinton administration.
It could be hard for the House to prove it has legal standing, Reinsch said, noting this week’s ruling by a federal judge in a related case that found the House does not have standing to sue Trump over his use of emergency powers to spend taxpayer money on his border wall.
“I would also argue that even if someone with standing sues, they’ll lose,” Reinsch said. Referring to IEEPA, he said “the statute, while not intended to deal with this kind of thing, nonetheless permits it.”
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