We trawl the nether regions of the Internet looking for export stories so that you don’t have to. We saw one today, on a dubious site called ValueWalk by a dubious journalist, reporting that China has threatened to ban sales of iPhone if the new administration imposes a threatened 45% tariff on Chinese imports. Global Times, a PRC-run website, did indeed threaten to halt sales of iPhones, Boeing airplanes and U.S. autos in China if tariffs are imposed on Chinese imports by the United States.

But the reporter for ValueWalk went off the deep end when she said Trump could unilaterally impose tariffs under the Trading with the Enemy Act (“TWEA”):

First of all, Trump could invoke the “Trading with the Enemy Act of 1917” to set big tariffs against other nations. The law states that the President can restrict trade with other countries “during time of war.” But here’s the thing: the U.S. doesn’t necessarily have to be at war with China for Trump to impose his desired 45% tariffs on Chinese imports. The definition is so loose that America can be “at war” in any part of the world, while Trump can impose tariffs on any countries he wants. In fact, some political experts believe that having U.S. special forces deployed in Syria and Libya is already enough to invoke the law.

Er, no, no, no and no again.

Let’s start with a rundown of the history of section 5(b) of the Trading with the Enemies Act, 50 App. USC § 5(b). As initially passed, that section permitted the President, or a delegated agency, “[d]uring time of war or any other period of national emergency declared by the President” to regulate imports of any property in which a foreign national has an interest. The section was amended in 1977 by Public Law 95-223, which struck the language in 5(b) relating to national emergencies declared by the President. The law allowed current regulations passed under the national emergency powers of the TWEA, which included the Cuba regulations and all regulations in effect under the law at the time of the amendment, to remain in force — provided that the President made an annual finding of national emergency justifying their continuation.

So we can’t look at the current regulations on Cuba under the TWEA despite the absence of an existing state of war as proof of a loose definition of a state of war. They are justified under the deketed but grandfathered national emergency language of section 5(b). The definitions in section 2 of the TWEA of “beginning of the war” and “end of the war” make clear that “war” under the TWEA requires a formal declaration of war by Congress. Boots on the ground anywhere outside the United States does not constitute “war” under Section 5(b) justifying the President to impose broad controls on international trade. Indeed, there would have been little purpose to the deletion of the national emergency powers of Section 5(b) if the President could exercise unilateral power of international trade by sending a handful of troops overseas to any zone of conflict or potential conflict.

Photo Credit: Great Wall of China Wide by Nate Merrill [CC-BY-SA-2.0 (http://creativecommons.org/licenses/by-sa/2.0)], via Flickr https://flic.kr/p/dXBy8h [cropped]. Copyright 2013 Nate Merrill

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