How Canada could bolster U.S. legal efforts to curb Trump’s tariff powers

Canada could strengthen legal efforts in the United States to curb Donald Trump’s tariff powers, if governments and businesses are willing to tell courts how badly they have been harmed by the President’s actions, American lawyers say.

At least five U.S. different court cases argue that Mr. Trump is acting contrary to law in using emergency economic legislation to impose border levies.

If they succeed, those cases could overturn some current tariffs and bar the U.S. President from using one of his favoured tools to summarily impose new trade measures. For Canada, however, the value of any contribution to those cases must be weighed against the possibility of provoking a reaction from the White House.

The cases are of obvious interest to Canada – and would benefit from submissions by entities in Canada, lawyers involved in several of the cases told The Globe and Mail.

”Canada may want to support this litigation because if we win, you can be rid of the tariffs without having to give Trump anything,” said Ilya Somin, a law professor at George Mason University who is co-counsel on one of the cases, filed on behalf of several U.S. businesses.

Victory, too, would rob Mr. Trump or any future president of the ability to use the International Emergency Economic Powers Act, or IEEPA, “to reimpose tariffs any time he feels like it,” Mr. Somin said.

Most recently, Mr. Trump has cited “a National Security threat” as reason to impose 100-per-cent tariffs on foreign-made films, a prospect that could visit serious consequences on Canada.

Canadian involvement in U.S. court cases would not be out of step with history.

Ottawa has fought softwood lumber duties at the Court of International Trade, which will hear some of the tariff cases, and U.S. lawyers say there is no obvious legal obstacle to the federal government adding its voice to the current tariff cases.

U.S. courts allow for the submission of amicus briefs, also known as friend-of-the-court filings, by parties who are not directly involved in a case but have an interest in it – or possess information the court might find valuable.

Legal counsel in the U.S. working on Ottawa’s behalf has made inquiries about filing an amicus brief in at least one of the cases, said a lawyer on one of those cases. The Globe and Mail is not naming the lawyer because they were not authorized to disclose the conversation.

Global Affairs Canada spokesman John Babcock said in a statement that “Canada is aware of these important lawsuits in the United States, which have the potential to overturn the unjustified U.S. tariffs being imposed against Canada and other trading partners, under the IEEPA.”

The state of California has filed one of the tariff lawsuits. In a statement, the California Attorney-General’s office said it “cannot discuss legal strategy or confidential conversations tied to any of our investigations or lawsuits.”

In Alberta, a representative of the Blackfoot Confederacy has also inquired about getting involved with one of the tariff lawsuits filed on behalf of several Blackfeet members in Montana, said Monica Tranel, a lawyer in that case.

“The Blackfeet, they’re family. So this is personal for them,” Ms. Tranel said.

There is good reason for Canadian groups to make filings in the U.S. cases, said Brad Wall, the former premier of Saskatchewan. Canada needs an “all of the above” approach to making “our case for freer trade,” said Mr. Wall, who is now a special adviser to Osler, Hoskin & Harcourt LLP, a law firm.

Central to many of the U.S. tariff challenges is a “major questions” argument, which contends that the need for clear congressional authorization grows with the scale of presidential action. That‘s important in the context of IEEPA, which gives the president power to respond to an unusual and extraordinary foreign threat but does not specifically mention tariffs as a tool that can be employed.

Canadian entities are well positioned to underscore the scale of impact, he said.

 “The sheer magnitude of this matters as a legal matter,” said Andrew Morris, senior litigation counsel with New Civil Liberties Alliance, which has brought one of the cases on behalf of a Florida entrepreneur.

“The bigger the impact of the presidential decision, the bigger the power grab in our view.”

Neither the Business Council of Canada nor the Canadian Chamber of Commerce are considering amicus filings. It’s more important to find more effective avenues for resolving trade disputes, said Candace Laing, president of the chamber.

There are risks, too, for anyone in Canada to make comment in U.S. court cases that are openly challenging the powers of a President who has been willing to punish critics.

“We’re on the verge of negotiating a new economic and security relationship with the United States. And actually at this point, a lot of our product is getting into the United States free of any tariffs, as long as it qualifies” under the U.S.-Mexico-Canada Agreement, said John Boscariol, an international trade lawyer with McCarthy Tétrault.

“We’re in this period now where the government is going to have to step very carefully. And I do think there is a risk that participating in these challenges could set President Trump off.”

Indeed, any Canadian right to battle the Trump administration in court must be considered against the possibility of blowback from the President, said Brenda Swick, an international trade specialist with Cassels Brock & Blackwell LLP.

Still, she said, “litigation by Canada can be a leverage in any negotiations with the U.S. to resolve the issue.”

Mr. Somin made a similar argument.

“It’s better to deal with a bully by standing firm than by trying to accommodate,” he said. Mr. Trump, he added, ”is more likely to give in if he knows that hanging over him is the possibility that courts will just say that the whole thing should be overturned – in which case, he gets nothing.”