first reading: the case for this being an 'illegal' trade war
fentanyl may only have been a pretext, as trump can only impose tariffs in the event of a 'national emergency'
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first reading is a daily newsletter keeping you posted on the travails of canadian politicos, all curated by the national post’s own tristin hopper. to get an early version sent directly to your inbox, sign up here.
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as u.s. president donald trump plunged canada into an all-out trade war on tuesday, critics in both canada and the united states were quick to brand his new tariffs as “illegal.”
this charge refers to the fact that not only do the tariffs violate the usmca trade deal that trump personally struck with ottawa, but there’s a case to be made that the actions are breaking u.s. law.
the u.s. constitution is very specific about tariffs being under the jurisdiction of the u.s. congress and not the white house. “the congress shall have power to lay and collect taxes, duties, imposts and excises,” reads article 1 of the document.
the only reason trump was able to levy tariffs on canadian imports without congressional approval was because of a 1977 law that extended tariff-making authority to the u.s. president to counter an “unusual and extraordinary threat.”
this is why the executive order imposing 25 per cent tariffs against canadian imports explicitly cited it as a means to stop a “flood of illegal aliens and drugs” into the country.
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“president donald j. trump is proceeding with implementing tariffs on canada and mexico under the international emergency economic powers act (ieepa) to combat the extraordinary threat to u.s. national security, including our public health posed by unchecked drug trafficking,” reads the official white house “fact sheet” announcing the new tariffs.
as canadian politicians have pointed out en masse this week, the pretext as it relates to canada is quite scant.
“the legal pretext your government is using to bring in these tariffs is that canada is apparently unwilling to help in the fight against illegal fentanyl; well that is totally false,” prime minister justin trudeau said in a tuesday statement directed at u.s. citizens.
conservative leader pierre poilievre said at a press briefing that while he believed the trudeau government hadn’t done enough to curb domestic fentanyl flows, it “was not a justification for tariffs.”
“there is no justification; there are weapons, fentanyl and illegal immigrants who are coming from the united states into canada, is that (trump’s) fault?” poilievre said in a french response to a reporter.
white house literature alluded to the fact that just 43 pounds of canadian-origin fentanyl was seized by u.s. border authorities in 2024 as compared to 21,100 pounds seized from mexico.
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nevertheless, the statement claimed that if all those 43 pounds had been administered exclusively as fatal doses, it feasibly could have killed “9.5 million americans.” the document called this “proof of canada’s growing role in this crisis.”
if the order had justified the tariffs as an economic measure, a political pressure tactic or as a means to raise revenue — all of which trump has publicly cited as reasons for a trade war with canada — it would have opened up the action as being a potential violation of trump’s executive authority.
as per the text of the ieepa, the u.s. president can only impose unilateral tariffs if he “declares a national emergency” in regards to an “unusual and extraordinary threat, which has its source in whole or substantial part outside the united states.”
conservative writer charles w. cooke wrote in a tuesday post for the national review that the u.s. congress could stop the trade war “right now” by clawing back trump’s tariff powers.
“the constitution gives absolute control over tariffs to congress. as such, any power that the president enjoys must be delegated. with one bill — passed by veto-proof majorities — congress could take back some (or all) of that power,” he wrote.
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new jersey congressman tom malinowski argued similarly in a tuesday social media post — saying that all the u.s. congress has to do is cancel the “national emergency” that trump declared as a preamble to the trade war.
“trump used his emergency economic powers to impose the tariffs. under the law, when presidents declare an ‘emergency,’ any member of congress can move to terminate that emergency, and that motion is ‘privileged,’ meaning it must get an up or down vote,” he wrote.
if that’s not happening, it might be because the u.s. congress is currently under majority control by trump’s republican party — albeit a narrow one. the body currently has 218 republicans to 215 democrats.
ironically, the u.s.’s supposed checks on tariff-making authority differs sharply from canada, where the ability to levy duties and customs has always resided with the crown.
when the trudeau government levied counter-tariffs against the united states on monday, it did so via an order-in-council passed by governor general mary simon that simply updated the canadian customs tariff.
in other news
as this newsletter goes to press, there are rumours that the u.s. might suspend tariffs on wednesday. there’s been so many conflicting reports throughout the tariff fight that it’s hard to put stock in any one account, but if true it would mean that this trade war would end without much material damage beyond the massive amount of uncertainty that it’s introduced into the canadian economy.
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the imposition of blanket u.s. tariffs prompted a whole galaxy of canadian responses, including an immediate package of counter-tariffs on $30 billion in u.s. imports. ontario premier doug ford, who just won an election based largely on his pledge to counter trump, rolled out what was probably the most aggressive response: tearing up a provincial agreement with starlink, ordering u.s. alcohol off lcbo shelves, banning u.s. companies from ontario government contracts and threatening a 25 per cent surcharge on electricity exports.
with prime minister justin trudeau’s january announcement that he would be stepping aside, the liberals experienced a sudden boost in the polls that – in a few instances – even made them competitive in a future general election. this newsletter was always
clear that the polling honeymoon likely wouldn’t last. and according to a new postmedia-leger poll, it’s already over. the conservatives are back to 43 per-cent support against 30 per cent for the liberals – more than enough to score a majority in the next election.
alberta premier danielle smith was long canada’s loudest proponent for the idea that u.s. president donald trump might back off on tariff threats if canada met his demands for border security in good faith. she changed her tune today, declaring that the trump white house had launched an “unjustifiable economic attack” on canada, and had levied “illegal tariffs. “canada — including us here in alberta — took americans at their word when they asked us to strengthen border security, address illegal migration, and tackle fentanyl trafficking. that’s why today’s new tariffs and counter-tariffs are so frustrating,” she said in a statement.
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