> Discriminates in fact against the commerce of the United States, directly or indirectly, by law or administrative regulation or practice… in such manner as to place the commerce of the United States at a disadvantage compared with the commerce of any foreign country.
I think the administration would find it easier to prove this than you think. They just have to find some regulation which they claim disadvantages the US compared to other countries. Given most countries have thousands of pages of regulations, it likely isn’t hard to find something in there that they can argue puts the US at a disadvantage-especially since what really matters is not whether it actually does, rather whether they can convince a court that it does
Real example: the US claims Australia bans US beef, Australia insists it is allowed. I believe the real problem is this-Australian regulations say US beef is allowed if the cattle are born in the US, raised in the US, slaughtered in the US… and the problem is the US cattle industry has such poor record-keeping, they intermingle US-born cattle with live cattle imports from Canada and Mexico and can’t produce the necessary paperwork to prove a shipment of beef is purely US-grown and hasn’t been mixed with beef from non-US origin cattle
Now, there is no reason in principle why the US cattle industry couldn’t improve their record-keeping to the point that it meets Australian regulations. But that would cost money and be politically unpopular-so instead US politicians just spread the rather misleading claim that “Australia bans US beef”. What really matters legally, is not the reasonableness of the claim, it is whether they can get a US judge to accept it-and quite possibly they could
And there’s probably several other cases where US companies can’t export their products to Australia because they aren’t willing to comply with Australian regulations. And likely many similar stories for other countries too. And if DOJ lawyers try to argue these cases fit under the legislation you are citing, IANAL but I think they’d have decent odds of success
> it's specifically targeting cases where a foreign country discriminates against US trade over and beyond the dues it charges on other countries' trade.
But, in this Australia case, all they have to do is find another country which can export beef to Australia because it does comply with these regulations, and there is their argument that Australia discriminates against the US. Should it matter legally that these regulations are reasonable and not intentionally discriminatory and US inability to comply is due to US unwillingness to pay for the reforms necessary to do so? I think it should, but entirely plausible that a judge decides it shouldn’t
EDIT: to be clear, I think these tariffs are pretty stupid-but whether something is stupid is a separate question from whether courts will uphold it. Many courts will uphold a lot of things which you or I know to be stupid