February 23, 2026
Many have been writing and commenting on the SCOTUS’s decision on reciprocal tariffs. A lot of great food for thought.
After the initial US-focused discussions on the US constitutional law implications of the decision, and the possible alternative legal bases POTUS could use to keep a similar level of tariff protection, the shift has quickly moved to the various deals concluded in the shadow of the IEEPA tariffs.
It is highly likely that most (if not all) of those trade deals are illegal under WTO law, not really being covered by GATT XXIV and the like.
If so, and quite obviously, the change in domestic legal basis of the tariffs that triggered the negotiating process does not change the legal status of those deals.
Clearly, the EU (and others) will now heavily rely on legal arguments to either pretend compliance (more likely) or contest the legality of the deals (less likely). (For the EU’s initial reaction see here.)
The pretence that those deals must be complied with is a great example of using the “law as an argument” – in the knowledge that the law does not condone those deals in any possible way. It is the ultimate strategic use of the law.
lucaslaws 