Liberal Europeans hate Donald Trump. They also tend to misjudge him. I see this tendency particularly strongly represented in the media, where wishful thinking is the guiding principle. The media drew the wrong political conclusions about his criminal trials last year. Now they are misjudging last week’s court ruling blocking his 2 April reciprocal tariffs.
The chances are that Trump will win this latest legal battle, just as he won the previous ones. The Supreme Court, where this legal battle may ultimately end up, has a majority of conservative justices. Six have been appointed by Republican presidents, three of them by Trump himself. The court’s most recent rulings have tilted heavily in favour of Trump. It ruled before last year’s election that Trump enjoyed immunity for actions he committed as president. It ruled in favour of the Trump administration in a case involving his decision to remove two members of an independent federal agency; on a case involving the protected status of Venezuelan migrants; and on a case that limited the scope of environmental reviews. The Supreme Court went against him in a decision to deport a Venezuelan accused of gang affiliations. This history of the court’s ruling would suggest the odds are 80:20 in favour of Trump.
But the deeper reason why I think Trump will win is that the New York court’s legal argument would set a very dangerous precedent if confirmed. It would be dangerous for Democrats too. Trump invoked the International Emergency Economic Powers Act from 1977 to justify his “Liberation Day” tariffs. That act was signed into law by Jimmy Carter. It was meant to enable a president to take emergency measures after the oil shocks of that decade.
Trump’s lawyers argued that the persistent US trade deficits constituted a national emergency that would justify the triggering of the Act. The New York court rejected this line of argument because the US has been running trade deficits since 1976. How can something be an emergency if it has been going on for that long?
The argument is sheer sophistry. In finance and economics, most crises occur due to things that have been going on for a long time. Remember subprime mortgages? They started in 1988. It took another 20 years until they triggered the global financial crisis. Or think about diseases in medicine. Life is full of emergencies whose causes started to build over long periods.
But let’s suppose I am wrong. Trump loses the court case. Then what?
He still wins. This is because he has so many other ways of imposing tariffs. And on top of that, many more ways of achieving similar outcomes.
It already started on the weekend, when he said he would double the steel and aluminium tariffs to 50%. These tariffs come under a different heading: Section 232 of the 1962 Trade Expansion Act. I have counted five Acts that allow a president to impose tariffs — and there are probably more. Section 232 deals with national security. Joe Biden used it to impose a 100% tariff on electric cars from China. Trump’s car tariff also falls into this category.
Could the courts challenge him over Section 232? I doubt it. Historically, courts have not gone against the President over national security. Trump invoked Section 232 with the argument that the US has become dependent on imports for certain critical goods and materials, like vehicles, steel and also drugs. This is factually correct. You cannot use Section 232 to put an import on champagne and argue that you need to block its flow for national security reasons. But Trump can still do what the Europeans do: establish some food and wine standards that only domestic suppliers can fulfil.
The jargon of US trade and finance politics includes a lot of numbers, which all happen to be in the hundreds. There is also Section 301 of the 1974 US Trade Act. This is about unfair trading practices. Section 301 is triggered by an official investigation by the US Trade Representative. It is a powerful act, but slow. It follows strict procedural rules. They have to launch an investigation, hold hearings, and allow people to raise objections. But when all this is over, the President decides.
And then there is the nuclear device: Section 338 of the Smoot-Hawley Act from 1930. That is the Act that triggered the Great Depression. Smoot-Hawley allows the President to impose tariffs of up to 50% for the most quotidian of reasons: to shield American industry from foreign competition. Smoot-Hawley is surprisingly still on the statute books.
You want more numbers? There is also Section 122 of the Trade Act of 1974, which gives Trump the power to impose tariffs of 15% for up to 150 days, no questions asked. If you deep-dive into the current bill, which passed the House of Representative by a single vote last week, you might come across Section 899. This introduces a tax on foreign investors whose countries are deemed to run tax regimes the US considers detrimental to the interests of US business.
I am going to stop here with the numbers. But the bottom line is that Trump will find a way. Only a fool would bet on Trump being stopped by the courts. It did not happen in the past. It won’t happen now.
“Trump will find a way. Only a fool would bet on him being stopped by the courts.”
Behind these serial misjudgements lies a deeper problem. One of the reasons why centrist, liberal democracy is in retreat is its tendency towards lawfare. The German military historian Carl von Clausewitz described war as the continuation of policy with other means. Lawfare is the continuation of policies through the courts. If you don’t win elections, you still have the courts. This is an abuse of the legal system. Democracy is not meant to work that way.
Lawfare also has a tendency to backfire. There are many examples other than Trump’s criminal trials. The UK Supreme Court’s decision to stop Boris Johnson’s prorogation of parliament in 2019 represented another campaign whose efforts did not have the intended effect. The ruling was celebrated by the Remain campaign, but it also triggered new elections that Johnson won with an unexpectedly large majority. The European Commission also commits lawfare through a procedure they call “rule of law”. It is where politicians vote to withhold payments to recalcitrant EU members. Courts in France and Romania have banned the lead candidates in presidential elections. In Germany, centrist politicians are actively discussing whether to seek a ban of the Alternative for Germany. If you can’t beat them, ban them. That’s lawfare.
Lawfare fails for two reasons. It rallies the broader support base of those who are subjected to it — which is what happened with Trump, and with the Leave campaign during the Brexit years. But, perhaps more importantly, it has a terrible effect on those who pursue it. The lawfarers relied on the courts to do the dirty work for them. They were not sufficiently focused on defeating Trump in the elections, because the courts lurked in the background.
I see centrist-liberal complacency everywhere. Here in Europe liberals wrap themselves in the Ukrainian flag and promise that they will support Ukraine for however long it takes to defeat Russia. But for that promise to mean anything, it would have required some real sacrifice, like higher taxes, a gas and oil embargo, or comprehensively cutting off Russian banks from the Western financial system. I feel sorry for Ukraine that it has such spineless allies. The problem with liberal centrists is that they fight battles that are legal rather than political. They like something done. But they don’t like to do it themselves. They don’t fight wars themselves but prefer somebody else to fight it for them. The European centrists hate Trump in part because he ended that toxic game.
The reality is that Trump has won two elections, and he has got almost four years left to govern. The intelligent question for his opponents to ask is not how to defeat him in the courts, but how to move forward when they take over from him, and what parts of the agenda they should focus on if they were to win the mid-term elections next year. What should the US-China relationship be? Or US trade policy after 2029? Do you really want manufacturing to come back? What kind of manufacturing?
The reason why electorates are disaffected with incumbents is that many voters are not partaking in the fast lane of the 21st-century economy. It would be a massive job trying to fix this. It would mean reconnecting the average voter with the 21st-century economy. Trump managed to connect with the average voter better than his Democratic opponent, but in the end I don’t think he will deliver for them. The Trump presidency is more likely than not to end in disappointment. The sole purpose of the tariffs is to pay for the tax cuts that will benefit mostly the rich. If you want to defeat Trump, forget the courts. Start solving the actual problem.
