The Groundhog Day Tariffs and the Problem of Executive Discretion

David Super

     Amidst a flurry of wildly erroneous charts and figures President Trump announced his “Liberation Day” tariffs on April 2, 2025.  These included the boldest action any U.S. President has ever taken against the Heard and McDonald Islands.  After almost a year, the Supreme Court struck them down as unfounded in law.  President Trump’s immediate reaction was that he would reimpose broad tariffs on some other legal basis.  He immediately ordered sweeping tariffs under a legal authority valid for only 150 days as he declared that his Administration would spend that time figuring out how to make the tariffs permanent. 

     As promised, on July 24, 2026, President Trump announced a new round of tariffs against sixty countries, including almost all our significant trading partners.  (He does, however, appear to have gone soft on the Heard and McDonald Islands.)  He bases this new round on section 301 of the Trade Act, which authorizes tariffs and other measures when “an act, policy, or practice of a foreign country…is unjustifiable and burdens or restricts United States commerce”.  President Trump asserts that these countries gain an unfair advantage in trade with the United States because they do not exclude production inputs that come from forced labor, at least not to the extent that we do.

     The Administration’s announcement gave a whole new meaning to “threadbare”.  It failed to show that all these countries benefit from forced labor at all, much less that the products of forced labor give them an advantage equal to 10% or 12.5% of their trade with the U.S.  The Administration also neglected to explain what its reaction would be if our trading partners were to impose similar or greater tariffs on us because of our “unjustifiable” acts, policies, or practices of gutting organized labor or blocking decarbonization, both of which surely give us a far more dramatic cost advantage than any benefit derived from forced labor in third countries.  Unsurprisingly, these tariffs have now been challenged in court.   

     Internationally, this will do further damage to our reputation as a reliable trading partner.  Economically, it will further tangle international trade and likely raise costs here and abroad.  Legally, these endlessly repeating tariffs raise fundamental questions that go far beyond Trade Law. 

     In a complex modern economy, numerous important decisions cannot be specified by Congress in advance.  Yet Members of Congress of both parties will hesitate to delegate discretion to the executive if they expect it will often be exercised in bad faith to reverse their policy choices our to retaliate for personal grievances.  The solution to this dilemma is central to any plan to reconstruct Administrative Law after President Trump leaves office. 

     Rebuilding Administrative Law is much too ambitious a topic for a post here.  (I have a full article on that in progress.)  But President Trump’s Groundhog Day tariffs do suggest a few possible responses to the problem of wildly abusive exercises of discretion. 

     First, over the years Congress has grossly overestimated how much administrative flexibility is actually needed.  Putting a large thumb on the scales for flexibility likely seemed easy in an era when norms of good faith were widely and when a more robust set of checks and balances created a need to avoid Congress’s wrath.  As I have argued elsewhere, flexibility is not the unalloyed good it is often portrayed to be.  Instead, it has costs and benefits that should be weighed thoughtfully.

     Second, in cases such as trade policy where Congress genuinely cannot anticipate serious problems that may arise, a legislative path is still possible.  Over the years, we have established numerous mechanisms under which the President may submit specific types of requests to Congress and is assured of an expedited decision.  Among these are reports from military base closure commissions, proposed recissions of appropriated funds, and even some kinds of trade treaties.  These rules typically provide rigid limits on the scope of presidential requests that may benefit from expedited procedures and then set out distinctive procedural rules.  These include an accelerated schedule that prevents the presidential requests from being bottled up in committee, from being sabotaged with controversial amendments, or from being filibustered in the Senate.  The request still fails if a majority in either chamber votes to reject or table it, but the special rules prevent Members from hiding behind the obscurity of congressional procedure to kill the measure unaccountably. 

     Rather than allowing the President to impose tariffs unilaterally, Congress could rewrite section 301 and similar authorities to allow submission of proposals for tariffs of a specified amount on a specified range of goods and services from one or more specified countries.  Legislation with those provisions (but no others) would then be assured of expedited consideration.  Members favoring different changes in trade policy would be free to try to move legislation through the regular order, but that would not prevent the President’s proposal from coming to a timely vote in precisely the form the President submitted.  Absurd proposals like the Groundhog Day tariffs likely would have difficulty finding champions on the House or Senate floors; serious, well-supported recommendations would be assured of floor consideration.

     Finally, some courts may feel uncomfortable declaring that the Administration’s obviously concocted factual rationale for these tariffs is, well, obviously concocted.  They should not.  Remarkably, President Trump himself has made the courts’ task here considerably easier.  The Court rejected the first Trump Administration’s effort to put a question seeking citizenship information on the decennial Census after finding that its stated reason for doing so was obviously insincere.  “Our review is deferential, but we are not required to exhibit a naiveté from which ordinary citizens are free.  The reasoned explanation requirement of administrative law, after all, is meant to ensure that agencies offer genuine justifications for important decisions, reasons that can be scrutinized by courts and the interested public.  Accepting contrived reasons would defeat the purpose of the enterprise.  If judicial review is to be more than an empty ritual, it must demand something better than the explanation offered for the action taken in this case.”

     In addition, the Unified Executive Theory enables courts to weigh the totality of the Administration’s behavior when assessing its credibility.  Previously, a tendentious or even dishonest action by one agency could be attributed to an isolated bad bureaucrat and deemed largely irrelevant to what other agencies are doing.  Now, the Court has determined that the President’s broad, unfettered removal power is essential to making subordinate officials “remain accountable to the President, and the President to the people.” 

     Since the Twenty-Second Amendment limited presidents to two terms, we have been led 37% of the time by presidents who were never again going to be accountable to the people.  (President Trump has been immune from any further accountability to voters since he resumed office.)  To reap the intended benefits from concentrating accountability in the President, some of the President’s accountability must be to the other two branches of the federal government.  Now that the Unified Executive Theory empowers the President to impose strict, uniform standards of conduct, Congress and the courts can and should assume that the actions of any Executive Branch official reflect on the entire branch, at least unless prompt disciplinary measures are imposed. 

     In the context of the Unified Executive Theory, an administration’s propensity to falsify or mislead may properly be taken into account in disbelieving subsequent assertions.  This should be all the more true for facially improbable claims such as those supporting the Groundhog Day tariffs.  And this should be particularly true on issues, such as tariffs, where the Administration has made clear that it is determined to impose its will despite opposition from the coordinate branch with primary constitutional responsibility. 

     Our legal system places such a high premium on assessing character for truthfulness that it forces criminal defendants to forego taking the stand in their own defense if they wish to avoid having their prior unrelated, misconduct introduced in evidence against them.  Our law believes it is so important that the trier of fact be aware of prior bad acts possibly showing a character prone to dishonesty that we are willing to accept the risk that the jury will conclude that the defendant committed the acts charged on the basis of otherwise impermissible character reasoning.  If character for truthfulness is so important for a private individual seeking to stave off long incarceration or even death, surely it matters even more for a President facing only a policy loss to other elected representatives of the people and now equipped to enforce the highest standards of probity within his administration. 

     @DavidASuper.bsky.social @DavidASuper1