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Good Lord, We Really Need to Fix Our Trade Laws

Donald Trump officially signed off on his new steel and aluminum tariffs today, not that anybody knows how they’re going to work or who they’ll apply to. Since the president blurted out his intention to impose duties on the metals last week, his administration has been scrambling to figure out the details and shore up their legal justification, all while facing a louder-than-usual protest from Republicans in Congress. So far, few real decisions have been made. It mostly seems that they’ve opted to kick a bunch of made-in-the-USA cans down the road.

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To wit: In theory, the administration is about to slap a 25 percent tariff on foreign steel and a 10 percent tariff on aluminum. But those won’t apply to Canada or Mexico, two of our top sources of steel imports, while the administration is still renegotiating the North American Free Trade Agreement.

The administration is going to try and make deals with our other allies as well. Some of those bargains to let countries avoid the tariffs may involve seemingly unrelated issues like their NATO commitments. “Some of the countries that we’re dealing with are great partners, great military allies and we’re going to be looking at that very strongly,” Trump said during his speech today. “The tariffs don’t go effective for at least another 15 days. And we’re going to be seeing who’s treating us fairly. Who’s not treating us fairly. Part of that is going to be military. Who’s paying the bills. Who’s not paying the bills.”

On top of that, according to the White House statement today, “there will be a mechanism” allowing American companies to ask the administration to exempt certain products from the tariffs “based on demand that is unmet by domestic production or on specific national security considerations.”

So maybe these tariffs will be far-reaching. Or maybe they’ll only end up applying to Germany, because Trump has it out for Angela Merkel. Either way, the situation is an embarrassing, ad hoc mess as well as an indictment of the outdated laws that have allowed it to unfold.

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However ineptly, Trump is attempting to impose these tariffs using his powers under Section 232 of the Trade Expansion Act of 1962, a Cold War–era piece of legislation that gives the president broad powers to protect domestic industries from foreign competition for the sake of “national security”—a phrase the law defines so broadly that it encompasses just about everything from military readiness to the basic health of the economy. Here’s the statute’s wording:

In the administration of this section, the Secretary and the President shall further recognize the close relation of the economic welfare of the Nation to our national security, and shall take into consideration the impact of foreign competition on the economic welfare of individual domestic industries; and any substantial unemployment, decrease in revenues of government, loss of skills or investment, or other serious effects resulting from the displacement of any domestic products by excessive imports shall be considered, without excluding other factors, in determining whether such weakening of our internal economy may impair the national security.

The Trump administration has looked upon this language and decided that it empowers them to limit steel imports however they see fit, using whatever bizarre criteria they come up with, simply because foreign competition is weakening our domestic industry and economy. You might disagree with the economic analysis. But it’s actually not a crazy reading of the law.

It is crazy, however, that such a statute exists in 2018, one that gives the executive branch an enormous amount of unchecked power over the economy, something that may have seemed sane when you had a reasonably thoughtful human being like John F. Kennedy in the Oval Office but is obviously ill-conceived now that we have an impulsive hairpiece who gets most of his information from Fox News.

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One way to address this situation would be for our lawmakers to eliminate Section 232 altogether. But failing that, there’s a very simple tweak they could make instead. Currently, the law gives Congress the ability to remove Section 232 tariffs on oil or petroleum products by simply passing a “disapproval resolution.” Lawmakers could broaden that power so that they could shoot down tariffs on other products as well. Making such a change would probably require overcoming Trump’s veto. But given how unpopular these latest tariffs are—100 House Republicans signed a letter asking Trump to soften them after his initial announcement—that might just be feasible.

There is potentially another way out of these tariffs, if Congress is unwilling to step up. It’s possible that, despite the incredibly wide latitude granted under Section 232, Trump may have sabotaged his own legal case for the steel and aluminum tariffs by tweeting too much. The administration’s lawyers have reportedly worried that by treating the tariffs as a bargaining chip with NAFTA, the president has tipped his hand that there really isn’t any national security rationale behind them, which could make the government vulnerable to a lawsuit.

This is reminiscent of Trump’s travel-ban tweets, which undercut the government’s argument that it was not targeting Muslims. But we can’t keep relying on incompetence to temper Trump’s worst impulses. As things currently stand, our trade laws give far too much leeway to the president. No one erratic and ignorant man should have all that power. Congress ought to exercise a little responsibility.

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