New York University's so-called Litigation Tracker website, listing legal challenges to the Trump administration's actions, already reads quite impressively.
First published by the university's law school on January 29 and last updated on February 27, it records almost 100 cases in which citizens or institutions have taken legal action against decisions made by the new US president.
The lawsuits mainly concern the numerous executive orders Donald Trump has issued since taking office. For example, the dissolution of agencies such as the US' international aid organization, USAID, the dismissal of state employees, and the suspension of government payments, to name a few.
There is no mention whatsoever of Trump's trade actions against trade partners, no matter whether they are US allies or enemies.
WTO dispute settlement in limbo
The reason for the absence of Trump's tariffs spree on the tracker is easily explained: Trade disputes fall under international law and are usually dealt with by the World Trade Organization (WTO), based in Geneva, Switzerland.
And here is where the problem of organizing a legal response to his trade actions begins, says Jürgen Matthes from the Institute for the German Economy (IW) in Cologne.
"Trump is breaking existing trade law [with his tariffs]. And the additional measures he has announced against China, the EU, and other countries would also violate international trade law. But that doesn't seem to concern him much," Matthes told DW.
China, for example, lodged a WTO complaint immediately after the Trump administration slapped an additional 10% levy on all goods from the Asian powerhouse that enter the US.
However, legal challenges before the trade body are currently not leading anywhere, Matthes conceded, even though they remain "important and necessary to uphold the international trade system." He argues that it's "very likely" that the WTO arbitration panel would rule US tariffs unlawful. But then the Trump administration would appeal the decision before the WTO's Appellate Body which has been non-functional for years.
The WTO's dispute settlement system was once described as its "crown jewel," but since the first Trump administration blocked appointments of two judges to the appellate body in 2019, it has been stuck in limbo. The Biden administration didn't reverse that because it also wanted a reform of the WTO dispute settlement.
"Since the appellate body no longer exists, there will be no legally binding ruling against the US," said Matthes. "And even if there were one, under Trump, the US would probably not comply with it."
This is an unsatisfactory situation for the 166 WTO members, which — not least due to US influence — joined the organization in order to have at least a minimum set of binding rules in international trade.
Can Trump get away with it?
Canada and Mexico see Trump's tariffs as an even greater violation of the law. The two US neighbors are not only WTO members but also partners in an existing free trade agreement with the US, the so-called USMCA. The trade pact came about after pressure from the first Trump administration and was ratified by the US Congress.
But Kathleen Claussen says the US government lawyers may have a workaround.
"Everybody will tell you: 'You can't put tariffs on a free trade partner. You can't just put tariffs on a WTO member.' That's the baseline, no question about it," the law professor at Georgetown University in Washington DC told DW. "But you might have a reason or an excuse. So maybe you're violating this, but actually, you might be justified and therefore excused from liability."
The case of Mexico and Canada shows how this works. Since the tariffs violate not only WTO rules, but also the USMCA agreement ratified by Congress, they could also be challenged in US courts.
"As a matter of domestic law, he [Trump] has in this instance drawn on the authority given to him under IEEPA. And that's what he's pointing to," she said.
IEEPA is the so-called International Emergency Economic Powers Act enacted in 1977. It gives the US president the right to intervene in international trade, even when existing agreements are in place, with the only condition being that the president declares a national emergency.
Donald Trump did exactly this shortly after taking office, using his executive orders to declare a national emergency due to the massive influx of migrants via the Mexican border and a rise in illegal drugs like fentanyl from Canada.
Pawns in the trade game
Claussen believes Donald Trump likes using tariffs as a weapon because he can "impose them so easily." He is less interested in the tariffs themselves than in their value as a pawn in trade negotiations, she argues, comparing tariffs with discounts offered by mobile phone providers.
"You might get a discount if you're friends and family. You might have to prove that you're friends and family, in a certain way. But even then: One agreement one day does not mean you're free from scrutiny the next day," said Claussen.
Canada and Mexico have already gained first-hand experience with Donald Trump's erratic use of tariff threats. In February, they saw punitive tariffs slapped on them, only to hear from Washington a few days later that they were postponed for 30 days. And again, a few days later, Trump suddenly imposed higher duties on imports of steel and aluminum from the two countries and others, before announcing that the postponed general tariffs on Canadian and Mexican goods would take effect in early March after all.
IW expert Jürgen Matthes thinks "creating uncertainty and making constant new threats" is one of Donald Trump's "fundamental principles," as he's seeking power and leverage over foreign governments and domestic industries to make them more willing to negotiate.
Meanwhile, European nations, especially Germany as a powerful export country, are debating what options remain if Trump imposes tariffs on their industries. The European Commission has already announced countermeasures, without giving details.
Matthes hopes that some kind of deal will be reached beforehand, perhaps through increased European purchases of US weapons or other goods made in the USA.
"A trade war harms everyone," he said, but added: "We also mustn't accept everything."
