UPDATE: Are Trump's tariffs legal?

Are we helpless as the president tries to destroy the international trading system?

UPDATE

See,

1)Alexis Keenan,Ben Werschkul, ”A US trade court just blocked a wide swath of Trump's tariffs. Here are the duties that may be impacted,” Yahoo Finance, May 28, 2025.

2) James Fanelli, “This Obscure New York Court Is Set to Decide Fate of Trump’s Tariffs; The Court of International Trade this week will consider the legality of president’s ‘Liberation Day’ levies,” Wall Street Journal, May 11, 2025 (7:00 am ET)..

BACKGROUND

1)”David J. Lynch, Mary Beth Sheridan, and Amanda Coletta, “Trump imposes tariffs on Canada, Mexico and China; It’s the first official action of the president’s second-term trade war,” Washington Post, February 1, 2025 (11:29 p.m.);

2) Louis Jacobson, “Can President-elect Donald Trump enact tariffs without Congress? And can anyone stop him?” Politifact, February 2, 2025;

3)Miguel Jiménez, ”Trump pone un muro a la integración económica de Norteamérica; Las cadenas de producción y suministro de Estados Unidos, México y Canadá se han hecho interdependientes en 30 años de libre comercio,” El País, el 1 de febrero 2025 (actualizado a las 17:30 EST);

4)Miguel Jiménez, “Trump puts up a wall against the economic integration of North America; The production and supply chains of the United States, Mexico and Canada have become interdependent in 30 years of free trade,” El País, February 1, 2025 (updated at 17:30 EST);

Donald Trump’s tariffs appear to be manifestly illegal.

They violate the World Trade Organization (WTO) agreements, the North American Free Trade Agreement (NAFTA) as amended, now known as the United States-Mexico-Canada Agreement (USMCA), and the specific authorities the Congress has delegated to the president to set tariffs.

Where are the legal challenges?

There is a great danger here that lawyers thinking inside a narrow box will forego legal challenges to Trump’s arbitrary imposition of tariffs on Mexico, Canada, and China because in the past the courts have given great deference to the president in the exercise of powers delegated by Congress to set trade policy including tariffs. However, these decisions were, in contrast to the destruction derby Trump is now leading, decisions in narrow contexts in more normal times.

What is Trump doing?

He’s trying to unilaterally repeal the 1994 NAFTA agreement between the U.S., Canada, and Mexico, as amended in 2019 and in force since 2020. That agreement sets forth standards and norms which govern tariffs and international trade with Canada and Mexico.

It was passed by Congress, which under the Constitution has the authority to set tariffs.

Significantly, it was passed subsequent to the laws by which Congress delegated certain emergency powers and authority to set tariffs to the president This was also the case with the amended WTO agreements.

Consequently, the NAFTA and WTO agreements appear to supersede and have precedence over the laws Trump may invoke as authorities for imposing tariffs that violate NAFTA and WTO rules.

Moreover, even within the terms of the emergency powers authorized by Congress, Trump has violated the clear meaning of the law, especially with respect to what constitutes “national security” and a “national emergency”.

Internationally, under the WTO provisions, a nation may override the basic WTO rules in a case where such action is necessary on grounds of “national security”.

The relevant provision does not give the U.S. or any other WTO member the right to override WTO rules any tine it wants. If that were true, the agreement would be meaningless, Such an interpretation is impermissible under international rules of treaty interpretation, as in general Contract la.w.

The invocation of a spurious “national security” exception to the WTO rules does not make the imposition of tariffs under its purported authority legal. A WTO panel has already held, for example, that the U.S. invocation of the “national security” exception in a 2018 case involving steel and aluminum imports was not valid.

These issues need to be litigated in cases brought before the U.S. courts, and also in USMCA and WTO complaints brought by other countries.and by U.S. parties.

Trump holds law, and particularly international law including the law of international trade, in utter contempt.

Those who would defend the rule of law in the United States and on the international level need to litigate these issues , as soon and as often as they can. Foreign countries affected by Trump’s illegal tariffs also need to litigate these issues before U.S. courts, their own national courts, USMCA dispute resolution bodies, and the World Trade Organization.

The danger is that Canada, Mexico, and China will forego resort to legal remedies out of fear of antagonizing Trump, and in the belief that they will get a better negotiated outcome if they don’t oppose Trump legally. This is a false calculation. Trump respects strength, and only strength. Resort to legal remedies will increase their strength, and also serve to reaffirm and strengthen the international law rules governing international trade.

Those who believe in the rule of law must not lie down helpless before a tyrant dead set on destroying the international trading system. Rather, they must act forcefully to ensure that international rules and institutions that govern international trade are respected and upheld.

That includes the international law that limits the arbitrary abuse of the tariff power by the United States, or indeed by any country.

The fundamental truth about law, and international law in particular, is that you have to “use it or lose it”.

***

James Rowles is a former Lecturer on Law at Harvard Law School and professor of international law at other universities.

He studied the history of Nazi Germany at Stanford, and has studied and worked on human rights, judicial reform, and access to justice projects in many countries in Latin America, Africa, the Middle East, and in Afghanistan and Russia. At Harvard Law School, he taught a course on “Law, Human Rights, and the Struggle for Democracy in Latin America”.

At the Inter-American Commission on Human Rights (IACHR) of the OAS, he worked on human rights cases involving forced disappearances, executions, and torture in a number of authoritarian countries in Latin America and the Caribbean.

Recent Books by the Author

James P. Rowles, The Rape of American Democracy: Republican Actions and Democratic Failures, 2016-2021 (2024). Available on Amazon, and from IngramSpark by clicking on a link here.

James P. Rowles, Don’t Be Stupid. Pay Attention, Damn It! Advice for Undecided Voters and Voters Leaning Toward Trump (2024). Available on Amazon,and from IngramSpark by clicking on a link here.

***

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