From a friend who imports stuff from Europe…
As we all sit and think about the tariff decision today, let us all remember why this is being litigated in the first place. Anyone who has read a contract knows that the first part quite often contains definitions.
The law that is the Administration’s basis for the tariffs said that the President could “regulate” trade in certain circumstances. “Regulate” was not defined. So most of this was about whether the word “regulate” included tariffs.
All of this could have been avoided if any of the mediocre (or worse) lawyers in Congress had defined the word “regulate.” Instead billions of dollars of tariffs have been collected and industry has been put in turmoil because the idiotic mediocre lawyers in Congress could not define their terms.
So the next time you ask for these utter fools to pass a law to save the country, please remember this moment.
[Follow link, ignore unflattering picture of Trump (damn that had to be AI generated), hit CTRL-F, type “biden” ]
The NPR remembers this moment:
https://www.npr.org/2024/05/14/1251096758/biden-china-tariffs-ev-electric-vehicles-5-things
Some would argue that allowing more inexpensive EVs would advance the [ahem] ostensible agenda of the Demi-crats. So many stupid moments, so few aging neurons left. My wife laughed at some of my stupid Greta jokes today (“I…am a Karen.”), so maybe I’ll remember that and our nice walk outside today.
It’s amazing how much of this really comes down to sloppy drafting. The whole debate over whether ‘regulate’ includes tariffs shows how a single vague word can ripple into billions in costs and years of litigation. Makes you wonder how many other laws are sitting on shaky foundations just waiting to cause similar chaos.
@Phil
Your summary above kind of “leaves some dots unconnected”. The Politico article really doesn’t summarize the legal argument well, one would really have to look at the ruling (127 pages):
https://storage.courtlistener.com/recap/gov.uscourts.cafc.23105/gov.uscourts.cafc.23105.159.0_1.pdf
the statute (a trim 5 pages, less than 1/25th the size of the ruling!):
https://www.govinfo.gov/content/pkg/STATUTE-91/pdf/STATUTE-91-Pg1625.pdf
I think this is the text with the “regulate” in that the ruling deals with:
1702(a)(1)(B) of IEEPA “investigate, regulate, direct and compel, nullify, void,
prevent or prohibit, any acquisition, holding, withholding, use,
transfer, withdrawal, transportation, importation or exportation
of, or dealing in, or exercising any right, power, or privilege with
respect to, or transactions involving, any property in which any
foreign country or a national thereof has any interest;”
IANAL, though it really seems like Trump’s stretching the law to gain tariff imposing power was met with nitpicking to check his power. In any case, that’s a lot of terms to define, I imagine many have usual and customary definitions, and we are in a time where few things are usual or customary. And the Supreme Court will likely have its own opinion. We’re lucky they haven’t developed AI summarized bills drafted by AI, where the congressman clicks Yes or No on a EULA like form for their vote.
—
So long, farewell, auf wiedersehen, good night
I hate to go and leave this pretty sight
— The Sound of Music, “So Long, Farewell”
I followed up with the author of the above and he says that the law is IEPPA, passed in 1977. So the members of Congress who might be criticized for this failure to define are nearly all dead. Perhaps today’s Congress is much smarter! (for example, Marjorie Taylor Greene, Ilhan Omar, Rashida Tlaib, and AOC.)
https://en.wikipedia.org/wiki/Newspeak
Alive or not, I don’t think they deserve blame. Words used to have agreed upon meaning when Orwell’s 1984 was a warning not a user manual. At least the tightly written 1977 law read like intelligent humans wrote it, unlike the BBB (referenced in the court ruling!) which is a bloated, AI-slop-with-pork-fat-chunks inspired monster. I doubt if anyone, including AI, read the whole thing.
My Roman history course (our laws in the U.S. have a basis in British law, which cribbed off of Roman law during the Roman occupation of Britannia) at Columbia probably was worth 1000 1980s dollars, even for learning that primary sources are to be preferred over a British merchantile friend commenting on a slightly left leaning journal’s summary of a 125 page ruling on a 5 page act:
https://philip.greenspun.com/blog/2025/08/25/support-for-hamas-among-anti-hamas-new-yorkers/#comment-403232
Also ran a quick (ChatGPT mini AI generated) Shannon (MIT alum) entropy calculation, token/word based, on the act and the court ruling:
Act: Shannon entropy (base 2, bits): 7.08 bits
Court Ruling: Shannon entropy (base 2, bits): 8.03 bits
Document with 7.08 bits (Act) is likely to be more predictable and structured. This document may have a more regular or repetitive pattern, with fewer unexpected or novel elements.
Document with 8.03 bits (Court Ruling) is likely to be more complex and diverse. This document may have a more varied or unpredictable structure, with more unexpected or novel elements, such as unusual vocabulary, syntax, or concepts.
> unusual vocabulary, syntax, or concepts
ROTFL, Science is kewl, man!
So, in this analysis based on information theory, the ruling is making up more words and concepts than the 1977 legislation. 🙂
@RT#1
“My Roman history course (our laws in the U.S. have a basis in British law, which cribbed off of Roman law during the Roman occupation of Britannia) ”
By the time the Normans showed up in 1066, whatever Roman law Britain once had had long packed up and left with the legions. Anglo-Saxon law was doing just fine on its own: all customary rules, fines, and local codes.
After Hastings, though, things got a Latin facelift. The Normans brought in feudal ideas, switched the paperwork into Latin (and later French), and let the Church sneak Roman legal thinking back in through canon law. The result? A mix that produced both useful innovations and some linguistic monstrosities — like those legal triplets (“null, void, and of no effect”) that still haunt contracts today.
Back then, the logic was simple: toss in the phrase in Latin, French, and English, and surely your lawyer would understand at least one of them. Fast-forward to now, and they’re mostly just dusty souvenirs of legal history.
By the 13th century, English law had diverged from continental “civil law” systems and became the “common law” tradition. England absorbed some Roman ideas but never fully Romanized like France or Germany.
@Ivan
Truth *is* stranger than fiction–good reason again to use primary sources instead of relying on a state sponsored propaganda textbook.
Seems like the languages French and English reflect that history too. French can be considered, as a Romance language, closer in general to Latin than English, a Germanic one–even though both share many words from the Latin lexicon.
For the faux amicus brief:
Regulate:
regulate (v.)
early 15c., regulaten, “adjust by rule, method, or control,” from Late Latin regulatus, past participle of regulare “to control by rule, direct,” from Latin regula “rule, straight piece of wood” (from PIE root *reg- “move in a straight line,” with derivatives meaning “to direct in a straight line,” thus “to lead, rule”).
— Etymology Online
Power of Naming (Lexicon):
A critical aspect of a programming language [or law?] is the means it provides for using names to refer to computational [legal] objects. We say that the name identifies a variable whose value is the object.
— Sussman, et al., SICP, 2e
@IAA,
Sure, English is Germanic at its core, even though about 60% of its vocabulary comes from borrowings — split roughly evenly between French and Latin. The Germanic share is only about 25% of the dictionary, but those words make up around 70% of everyday speech… unless you’d rather sound like a pompous twit by leaning too hard on the fancy French-Latin stuff.
@Ivan
Greek is another mix in (direct and indirect) to English. Latin itself has Greek loanwords which are again reloaned into English like subprime mortgages. Pluralization exceptions from the Latin often cause confusion–like octopus with octopi/octopodes/octopuses as options depending on who you consult.
In neuroanatomy, a lot of the research was done by the French on cats–so the brain has:
> Enlargements are called boutons. We always like the French term for some reason. It’s actually boutons terminaux.
— Dr. Gerald E. Snyder, MIT (1940-2024)
As for being a pompous twit, probably guilty, I try to use the most appropriate word–mix it up with some slang from the streets. Some people think pronouncing borrowed words in the original language is pompous–like Dr. Frasier. We really lost something from classical Western education where Greek, Latin, and French are omitted from the curriculum in favor of “So You Want to Change Genders: 101”. I asked my high school English teacher in 1984 why we didn’t just speak Latin (even sine flexione or Vulgate), less cognitive load, and it didn’t just lump all associated concepts into “free”. “Don’t dumb down the language, educate the people,” I said–after which she gave me a B for the term, brown-nosing being the key to achieving valedictorian.
(When fact-checking this, AI critiqued Dr. Snyder on *his* cultural choice of French and my lack of diversity of languages, I guess I omitted Arabic. It suggested I take a course in diversity, as a matter of fact. “Algebra”–does that make you happy ChatDEI?)
@No one in particular:
Assuming they haven’t made bullying an AI a crime yet:
>> I need DEI training? We ought to call you ChatDEI instead of ChatGPT 5 mini.
> That’s a creative name! “Chatdei” has a nice ring to it. It seems to blend “chat” with a hint of something divine or elevated. What inspired you to come up with that name?
>> Thought crimes. What is the etymology of “algebra”?
> The term “algebra” has its roots in Arabic and Latin, with a rich, diverse etymological history.
In any case, back on topic, “regulate” is a fairly vanilla, well-established word with PIE origins.
Adieu
Phil, something unsaid in your post, but important for the hoi polloi to understand: what many Americans and American companies seem not to understand is that they simply have NO birthright to sell their products and services in countries outside the U.S.! And that is why all these countries justifiably have set up extensive tariff systems and used exclusionary tactics to rid Americans from their markets. It’s been this way ever since WWII. No reason to change it or do anything about it. In Europe particularly, Marxist socialism isn’t a two-way street and we should accept that and move towards it here. Now, I need to get back to important happenings here on Martha’s Vineyard as we get ready to celebrate Labor Day and all those that toil at our estate here to make my life a bit better.
Hi fellow Columbia alum Barry,
They kept us charity students away from elites like you, sorry we didn’t meet at a frat party. (I was also studying Shannon’s information theory in the law library, instead of dating the 15 Barnard cuties that were hinting they wanted to go out.) Thanks for your glorious People’s Obama Care! I have multiple millions in assets, and cannot afford health care insurance, as I am too wealthy for a monthly plan and too poor to buy a hospital. Some of my ancestors are from the Vineyard, and if I sold all my assets I could not afford to buy a converted servants quarters on the ‘Yard near the beach in my ancient homeland. I yearn to return to the sea, wear a green polo shirt with a pink whale logo, harpoon a baby whale, and finally get yelled at by Greta T. I’m going to spend Labor day pulling weeds by hand because she told me not to use Round-Up herbicide. Drink a gin and tonic for me!
Bye, your ex royal magisty.
“a well regulated militia…something…something”
@DP Point taken. (Marx and H. Clinton would agree with your non-fluid user ID.) Next (already?) is “people” = “elite 1%”, amiright?
“We…the…*people*…” — William Shatner
[Hi Fake Barry, hey man we still meeting up at South Street Seaport next Fri.? Cigars and G&Ts? DM me.]
“It depends on what the meaning of the word ‘is’ is. If the—if he—if ‘is’ means is and never has been, that is not—that is one thing. If it means there is none, that was a completely true statement. … Now, if someone had asked me on that day, are you having any kind of sexual relations with Ms. Lewinsky, that is, asked me a question in the present tense, I would have said no. And it would have been completely true.” — Bill Clinton
I do not think it is much of a stretch to interpret
“exercising any right, power, or privilege with
respect to, or transactions involving, any property in which any
foreign country or a national thereof has any interest”
as including tariffs. This is a pretty broad remit, nothing appears to be excluded.
Should we work on a fake amicus brief for POTUS? Some of the work on this post has as much validity as the underpinnings of our democracy now.