Does the Smoot-Hawley Act Justify the Trump Tariffs? More, from Jed Rubenfeld and Philip Zelikow

I’m delighted that Jed Rubenfeld and Philip Zelikow decided to engage further on this matter. (For the original post laying out Prof. Rubenfeld’s position, see here; for Prof. Zelikow’s position, see here.) First, from Prof. Rubenfeld:

Let me first thank Hoover Senior Fellow Philip Zelikow for this. It’s important for everyone to see forceful arguments on both sides of such an important matter. That said, I think Prof. Zelikow overplays his hand—considerably.

To make the issue clear: I’ve written that most of Trump’s tariffs seem to fall squarely within the language of Section 338 of the Tariff Act of 1930 and that they can be upheld under that Section 338 even though the tariff executive orders don’t cite it. (It’s well established that executive orders can be upheld under statutes they don’t cite.) Prof. Zelikow doesn’t take issue with any of that.

Rather, Prof. Zelikow claims that Section 338, which remains on the books today at 19 U.S.C. § 1338, was implicitly repealed by subsequent tariff statutes. Or at least that Section 338(d)—a provision I quoted—has been so repealed.

But “repeals by implication,” as Justice Scalia once wrote, “are disfavored—’very much disfavored.'” Here’s the Supreme Court’s 2020 pronouncement on implicit repeals:

“[R]epeals by implication are not favored” and are a “rarity.” Presented with two statutes, the Court will “regard each as effective” unless Congress’ intention to repeal is “clear and manifest,” or the two laws are “irreconcilable.” “[W]hen two statutes are capable of co-existence, it is the duty of the courts, absent a clearly expressed congressional intention to the contrary, to regard each as effective.”

Maine Community Health Options v. United States, 590 U.S. 296, 315 (2020) (citations omitted).

None of the statutes Prof. Zelikow cites expressly repeals Section 338 or any part of Section 338 of the Tariff Act of 1930. None is in conflict with Section 338, much less “irreconcilable” with it. And Prof. Zelikow cites no language from those statutes’ legislative history expressing a “clear and manifest” intent to repeal Section 338. The latter is fully “capable of co-existence” with the later statutes and hence, under Maine Community, “it is the duty of the courts … to regard [it] as effective.”

Mr. Zelikow’s claim will come as a surprise to many. If Section 338(d) of the Tariff Act of 1930 has been implicitly repealed, someone should have told D.C. District Judge Contreras, one of the judges who just slapped an injunction on Trump’s tariffs, and who specifically referred to Section 338(d) as an example of a statute that expressly “grants the President the authority” to impose tariffs in specified conditions. Judge Contreras did not say that Section 338 “granted” the President that authority; he said it “grants” that authority.

If Section 338 has been repealed, someone should have told the non-partisan governmental Congressional Research Service, which describes “Section 338 of the Tariff Act of 1930” as “currently in effect” and as giving the President authority to impose tariffs under the conditions set forth in subsection (d) of that provision.

If Section 338 has been repealed, someone should tell the House of Representatives, where nine Democratic Congressmen have sponsored a bill to repeal it. If Section 338(d) in particular has been repealed, someone should tell the Senate, which in 2017 considered a bill to amend it. In fact, from 2017 until now, both Houses of Congress have been looking at bills to condition the President’s Section 338(d) tariff-setting authority on congressional approval. Prof. Zelikow is in effect trying to pass legislation through argumentation.

I get Prof. Zelikow’s Posadas argument, under which, he says, implicit repeal may be found if a later statute “covers the whole subject” of a previous statute. It’s the right argument for him to make. But Prof. Zelikow neglects to mention that even under the Posadas test, “the intention of the legislature to repeal must be clear and manifest.” Radzanower v. Touche Ross & Co., 426 U.S. 148, 154 (1976).

Bottom line: it seems a little hard to argue that a statute has been clearly and manifestly repealed when courts, commentators, and Congressmen alike believe it is still in effect.

And from Prof. Zelikow:

The issue is not whether there was an implied repeal of all of section 338 of Smoot-Hawley by the Trade Acts of 1962 and 1974. The issue is whether there was an implied repeal of section 338(d).

The other portions of section 338 address a finding that a foreign country had discriminated against American products, treating them differently than the products imported from other foreign countries, or actually blocking importation. Those portions of section 338 may still stand. A particular fact finding of discriminatory treatment is a different facet of trade law. As section 338 points out, those findings under other portions of section 338 were meant to interact with investigations by the U.S. International Trade Commission—an adjudicatory body that still exists. The House bill which Professor Rubenfeld mentions in his reply was meant to repeal all of section 338. The mention of the section by Judge Contreras refers, explicitly, to the other subsections, the ones that require a finding of discriminatory treatment.

Section 338(d) was different. It was a general power to respond to commercial disadvantage, foreign acts which somehow “burden” U.S. commerce. That is the precise subject area, even using that same language, that was addressed by section 252 of the Trade Act of 1962 and then again by section 301 of the Trade Act of 1974. It is also the character of Trump’s tariff reasoning in both the universal and reciprocal tariffs.

Yes, implied repeal faces a burden of proof. But examination of the relevant statutory sections meets that burden, under the standard I mentioned that was set out in Posadas. It might also meet a standard of “irreconcilable conflict,” since if section 338(d) authority was available, why would anyone have bothered with section 252 of the 1962 Act or bother with the requirements of section 301 of the 1974 Act. Those well established trade laws could become nullities.

Empirical evidence reinforces my argument, since for at least 63 years—and in fact since the Roosevelt administration took office in 1933 and adopted a different trade law approach the next year—no administration has ever proclaimed a tariff based on section 338(d) of the 1930 Act. This was true even in periods of high protectionist pressure, which was present throughout the 1970s and 1980s.

Profs. Rubenfeld and Zelikow have each reviewed each other’s replies, and modified their posts accordingly.