Trump shows his worry about Supreme Court tariff case

 

Gordon L. Weil

Unlike almost all other countries, Canada has refused to make concessions to President Trump that would induce him to lower tariffs.  While he has taken actions on policies not yet in effect or to match a U.S. concession, Prime Minister Mark Carney insists in negotiations.

But trade talks are making no progress.  Instead of wasting time courting Trump, Canada is working hard on finding alternate markets and on increasing domestic trade.  But it attempts to keep talks going in the hope that the U.S. will realize its dependence on its major trading partner and ally.

Then, Ontario Premier Doug Ford, whose province is deeply involved in the joint American-Canadian auto manufacturing arrangement, vented his frustration with the talks.  As a Canadian Conservative, he had liked Trump’s return to office.  But the president’s tariff policy almost immediately turned him around.

Ford launched a one-minute television ad featuring long-ago remarks against tariffs by then President Ronald Reagan.  Trump immediately blew, impulsively cancelling what seemed to be the almost mythical trade talks with Canada.  Then, he added a new 10 percent tariff.  Out of this ad and Trump’s visceral reaction came a flood of misdirection.

First, was Reagan for or against tariffs?   He was a free trader who had just raised tariffs on Japan in retaliation for its protectionism.  While making this protective move, he sought to maintain his reputation as a free trader.  The statements Ford used were not out of context with Reagan’s entire remarks, but they were out of context with the complete circumstances of the times.

Trump claimed that Reagan “loved” tariffs, which also took his remarks out of context.  The former president tried to make clear that he did not like tariffs and their effects, but sometimes increasing them was necessary.  He did not use them like Trump’s broad-brush approach.

Second, Ford’s ad opportunistically took advantage of the fleeting moment when Americans would pay much attention to Canada, thanks to the opening of the World Series between the Toronto Blue Jays and the Los Angeles Dodgers.  It was an outburst of patriotic support for his province, home of the Blue Jays, and an outlet for his anger over Trump’s auto protectionism.

Third, Ford was seeking to put pressure on Carney.  They are not natural allies.  Besides, Ford’s Ontario has demands that differ somewhat from Carney’s Canada.   Canadian provinces often find themselves at odds with federal policy.  Ford could be seeking a deal that would benefit Ontario, but possibly at the expense of other provinces.

Carney obviously did not like Ford treading on his authority over foreign and trade policy.  He got Ford to withdraw the ad, but only after the first two games, both played in Toronto.  Ford wanted to keep exploiting the inevitable explosion of Canadian nationalism at the games, but he does not speak for Canada.  Carney showed Trump that he had no responsibility for the ad.

Fourth, Trump’s instant reaction scarcely hides the reluctance of the U.S. to arrive at a negotiated deal with Canada rather than simply forcing it to make concessions.  Trump apparently believes that delay weakens Canada and improves his own position.   He ignores the deep anger north of the border about his suggestion that Canada should become the 51st American state.

Fifth, perhaps the most important aspect of the ad flare-up is that it revealed what is truly worrying Trump – the possibility of a Supreme Court ruling unravelling most of his tariff policy.  Two federal courts have already ruled that most Trump tariffs are not allowed.  The case is now before the Supreme Court.

Congress permits the president to alter tariffs in a national emergency, but his current declaration does not meet the standard set by Congress in giving the president its power to set tariffs.  His complete control over tariffs would be unconstitutional.  And, it is hardly a national emergency when tariff talks with Canada are ostensibly ended because of a critical television ad.

Trump charges that Ontario’s Ford is trying to influence the Court’s decision.  But Ford only wants a trade deal on autos.   And it’s an insult to the Court that it, like Trump, would be influenced by a Canadian television ad.

Trump’s reaction could go beyond trade policy and increase his worries.  If the Supreme Court affirms the ruling of the lower court specializing in trade matters, it would be the first serious limit it has imposed on his powers.  If it supports him, the ruling would cement its backing for his virtually absolute power.

He believes that court actions can be influenced by his political pressure.  Federal courts, including the Supreme Court, led by judges he has appointed, have favored him.  By creating an improbable pretext for Ford’s ad, he may want to be seen as a victim, worthy of more judicial deference.