Does the Smoot-Hawley Act Justify the Trump Tariffs? No, Says Philip Zelikow
My Hoover Institution colleague Philip Zelikow was kind enough to pass this along; he is an emeritus history professor at the University of Virginia, but also a lawyer:
On June 1, Yale’s Jed Rubenfeld published an essay on The Free Press criticizing the recent legal ruling on Trump’s tariffs. “The Judges Got It Wrong: Trump’s Tariffs Are Legal.” The subtitle adds: “The words of a 100-year-old law are clear, says Jed Rubenfeld. So why didn’t Trump’s lawyers mention it?” Professor Rubenfeld is referring to broad empowering language in a section of the infamous Smoot-Hawley act of 1930 that allowed a president to impose tariffs of up to 50% on countries that burdened U.S. commerce.
There is a straightforward answer to the question of why Trump’s lawyers didn’t mention this. Well, no one cites it because this part of Smoot-Hawley was superseded long ago. The issue has never been litigated because this section has never been used to impose a tariff. The office of the U.S. Trade Representative presumably knows this.
Professor Rubenfeld had staked out a position on the legality of the tariffs right away, on April 7 (also on The Free Press), arguing that the tariffs were probably legal. He now wishes to offer this argument for why he wasn’t mi
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