> Surely there's a mechanism through the courts for someone to challenge illegal tariffs
What you're describing is the Marbury tail wagging the Article II dog. The focus of the Constitution is allocation of power. The focus isn't creating a system where courts micromanage how the other two branches of government exercise that power. Marbury therefore goes to great lengths to draw lines between an executive's "ministerial" actions, which courts can supervise, and those that involve "discretion," which courts cannot. Marbury thus says:
> [W]here the heads of departments are the political or confidential agents of the Executive, merely to execute the will of the President, or rather to act in cases in which the Executive possesses a constitutional or legal discretion, nothing can be more perfectly clear than that their acts are only politically examinable. But where a specific duty is assigned by law, and individual rights depend upon the performance of that duty, it seems equally clear that the individual who considers himself injured has a right to resort to the laws of his country for a remedy.
The Tariff Act provision here is a classic example of something that Congress has entrusted to the President's discretion. The statute says: "Whenever the President shall find as a fact that any foreign country places any burden or disadvantage upon the commerce of the United States by any of the unequal impositions or discriminations aforesaid..."
Insofar as the courts can properly review such actions, their rule is to determine whether the prerequisites for invoking the authority have been satisfied--namely, did the President make a finding? Here, the President did make a finding. At that point, the courts' jurisdiction gives way to the President's discretion. The courts don't get to decide whether the President's finding is correct, or even whether it makes sense. At that point, the act is "only politically examinable."
If that were the true intent of the law, it could simply say "whenever the President chooses," instead of detailing precisely what the president must, "find as fact." Even the administration believes this, as they chose the particular fig leaf of "reciprocity" to defend that the statue was being followed.
Legally, there is a major distinction between whether an entity charged with making a finding as indeed done so, and whether that finding correctly reflects the actual facts.
This is not a novel concept. When courts review laws made by Congress, they don’t get to second guess Congress’s economic reasoning. Congress could ban interstate transportation of beer on Tuesdays. As long as the law was within Congress’s commerce power, courts don’t get to second guess the rationale for the law.
But that's not the argument they're making. You are discussing whether Congress is allowed to pass such a law (they are), GP is discussing the gap between the statute and the executive's action -- that absolutely is reviewable.
In particular, Section 338 requires a factual finding (from POTUS, which is not directly reviewable) but then also tasks USICT with "ascertaining" the facts. It doesn't explicitly give USICT ability to review the factual finding, but it's a very plausible argument that if USICT is tasked with ascertaining facts and those conflict with POTUS's declaration, then POTUS is exceeding statutory authority.
338 has never been used and it's not clear it'd pass Constitutional muster to begin with.
Except you're quoting a small part of a law, and conveniently lack the knowledge to understand that "aforesaid" means there's a definition to "unequal impositions or discriminations". These are quite literally spelled out, none of which are criteria met. Ergo, the president cannot simply declare himself King of the economy at will just because he wants to.
Which makes sense, since that would be uncomprehendingly stupid.
> id the President make a finding? Here, the President did make a finding. At that point, the courts' jurisdiction gives way to the President's discretion.
This seems incorrect
> cases in which the Executive possesses a constitutional or legal discretion
In this case though the laws wording would determine where the discretion starts and ends. "... whenever he shall find as a fact that such country—" so the president is limited by a.1 and a.2[1], the president was only granted discretion in under those proscribed limits.
So a find that says ~"neither a.1 or a.2 is occurring therefore I impose a tariff
as president"(claiming no conditions to impose a tariff under the law are met but declaring a tariff anyway) seems reviewable by the court from your sources. Only having a finding is not enough, the finding has to follow the limits of discretion put forth by the law in question.
The court’s power is limited to determining whether the President made a finding in the nature of the finding required by the law. What the court can’t do is then second guess that finding—analyzing it substantively to determine whether it is correct or not.
That's just not true. This case is a specific example of exactly the opposite. Read the opinion. It's literally a panel of federal court judges, one a Trump appointee, going through each justification and calling bullshit on each one.
More to the point, there’s a difference between the two statues. One of the points raised by the court in the current case is that IEEPA does not have that kind of “whenever the President shall find” language:
> That may be true of the NEA, whose Court Nos. 25-00066 & 25-00077 Page 41 operation requires only that the President “specifically declare[] a national emergency.” 50 U.S.C. § 1621(b); see also Yoshida II, 526 F.2d at 581 n.32. 13 But IEEPA requires more than just the fact of a presidential finding or declaration: “The authorities granted to the President by section 1702 of this title may only be exercised to deal with an unusual and extraordinary threat with respect to which a national emergency has been declared for purposes of this chapter and may not be exercised for any other purpose.” 50 U.S.C. § 1701(b) (emphasis added). This language, importantly, does not commit the question of whether IEEPA authority “deal[s] with an unusual and extraordinary threat” to the President’s judgment. It does not grant IEEPA authority to the President simply when he “finds” or “determines” that an unusual and extraordinary threat exists.
"Whenever the President shall find as a fact that any foreign country places any burden or disadvantage upon the commerce of the United States by any of the unequal impositions or discriminations aforesaid..."
That quote is from the Tariff Act of 1930. The government didn't argue this was the authority for the presidents actions.
So there is no remedy available to those who are wronged by a false or fraudulent "finding?"
We're pretty sure there's at least one fatal bug in the Constitution, thanks to Kurt Goedel [1], but I don't think anyone has definitively nailed down just what the bug is yet. Maybe this is a candidate.
What you're describing is the Marbury tail wagging the Article II dog. The focus of the Constitution is allocation of power. The focus isn't creating a system where courts micromanage how the other two branches of government exercise that power. Marbury therefore goes to great lengths to draw lines between an executive's "ministerial" actions, which courts can supervise, and those that involve "discretion," which courts cannot. Marbury thus says:
> [W]here the heads of departments are the political or confidential agents of the Executive, merely to execute the will of the President, or rather to act in cases in which the Executive possesses a constitutional or legal discretion, nothing can be more perfectly clear than that their acts are only politically examinable. But where a specific duty is assigned by law, and individual rights depend upon the performance of that duty, it seems equally clear that the individual who considers himself injured has a right to resort to the laws of his country for a remedy.
The Tariff Act provision here is a classic example of something that Congress has entrusted to the President's discretion. The statute says: "Whenever the President shall find as a fact that any foreign country places any burden or disadvantage upon the commerce of the United States by any of the unequal impositions or discriminations aforesaid..."
Insofar as the courts can properly review such actions, their rule is to determine whether the prerequisites for invoking the authority have been satisfied--namely, did the President make a finding? Here, the President did make a finding. At that point, the courts' jurisdiction gives way to the President's discretion. The courts don't get to decide whether the President's finding is correct, or even whether it makes sense. At that point, the act is "only politically examinable."