A Judge Just Did What Biden Wouldn’t: Dump Some Trump Tariffs

A federal judge on Tuesday struck down some tariffs imposed by former President Donald Trump on imported solar panels, finding that Trump had clearly overstepped his authority by hiking those tariffs last year.

What’s perhaps more interesting than the specifics of the trade dispute is the fact that the ruling by Judge Gary Katzmann of the U.S. Court of International Trade was made over the objections of the Biden administration, which defended Trump’s actions in court and sought to have the case dismissed. Instead of undoing an unlawful order from the former chief executive, President Joe Biden had the federal government’s attorneys argue in favor of even greater, unilateral trade powers for the White House.

That may not be surprising if you’ve been paying attention to trade policy during the past year, but it serves as yet another worrying reminder of the continuity of poor trade policies between the current administration and its predecessor.

In October 2020, Trump issued a proclamation that imposed new tariffs on some crystalline silicon photovoltaic cells (CSPV), a specific type of solar panel component which had been exempted from Trump’s 2018 order imposing tariffs on a wide range of solar panels and parts. At the same time, Trump made changes to those previously imposed solar panel tariffs so that they would decline from 20 percent to 18 percent in February of this year, rather than to 15 percent as originally intended.

Revoking the exemption for CSPV cells, the Trump administration said at the time, was necessary because allowing those parts to be imported tariff-free had “impaired and is likely to continue to impair the effectiveness of” the other solar panel tariffs. Competition from “low-priced imports,” the Trump administration said, would limit the growth of America’s own solar panel manufacturing industry.

In court documents, the Biden administration defended Trump’s actions on the grounds that the previous administration was merely trying to close a “loophole” in the earlier tariff rule.

Katzmann ruled against both Trump and Biden on Tuesday. By adding new tariffs and changing the scheduled tariff rates established in 2018, the judge said, Trump’s October 2020 proclamation “constituted both a clear misconstruction of the statute and action outside the President’s delegated authority.”

The technical violation that Trump committed has to do with Section 201 of the Trade Act of 1974, which gives presidents the unilateral authority to impose tariffs for explicitly protectionist reasons. But once tariffs are imposed, presidents are not allowed to hike those tariffs for at least three years—though there is some wiggle room for presidents to reduce them within the three-year window. That provision seems specifically crafted to prevent presidents from using tariffs as a sort of negotiating threat in the way that Trump often did, and it is also meant to provide some stability to businesses affected by the…