What unfolds here seems to be yet another unlawful expansion of executive power that warrants judicial scrutiny.
Late yesterday, the Trump Administration unveiled plans to invoke Section 301 of the Trade Act of 1974 in order to levy substantial new tariffs on imports from roughly sixty nations worldwide, arguing that this measure is necessary to curb goods produced with forced labor.
The Trump administration has taken a key step toward rebuilding a tariff wall around the U.S. economy, announcing new restrictions on goods from 60 trading partners that U.S. officials say lack sufficient prohibitions on the use of forced labor.
Under the plan, goods from nations that the U.S. says have not banned forced labor, including China, India, Britain and Japan, will face 12.5 percent tariffs. Goods from the European Union, Canada, Mexico and other nations that the U.S. says have failed to enforce bans will face 10 percent levies, the administration said in a late-night announcement Tuesday.
Although the plan rests on a different statutory basis, the proposed rates resemble the 10% tariffs under Section 122 that the U.S. Court of International Trade recently voided, as well as the IEEPA tariffs struck down by the Supreme Court earlier this year in a suit I helped bring. The rates (10–12.5%) and the exemptions described by the administration also look similar.
In addition, I remain deeply skeptical of the claim that all sixty countries—many affluent liberal democracies—are actually more permissive than the United States in permitting imports of goods produced via forced labor. If forced labor were truly the concern, there would be little rationale for slapping steep tariffs on nearly all imports from these nations, especially since the vast majority of those goods have little or no connection to forced labor. It strongly appears that the forced-labor issue is being used as a pretext for broad protectionism of the same kind that courts blocked earlier. This seems like another presidential power grab aimed at sidestepping Congress’ tariff authority, as granted by Article I of the Constitution.
In a discussion on Twitter/X, Georgetown University law professor Peter Harrell — a prominent authority on international trade law — observes that the proposed tariffs are “pretty clearly a straightforward attempt to recreate the IEEPA tariffs, and not the sort of detailed and precise country-by-country actions that 301 has been used for in the past.” He adds that “while there is some country-by-country analysis of how individual investigated countries either do not have or do not enforce prohibitions on importers made by forced labor, there is not detailed country-by-country analysis about how those imports harm US commerce [as Section 301 requires]. Instead, USTR relies on the case studies and more general, global macroeconomic studies of forced labor in the global economy to argue harm.”
In a recent article in Just Security, legal scholars Gregory Shaffer and Jeremiah May contend that employing Section 301 to impose sweeping tariffs on numerous nations and goods at once exposes the plan to the same kinds of nondelegation and “major questions” challenges that helped derail the IEEPA tariffs. The major questions doctrine demands that Congress articulate clearly when authorizing the executive to make decisions with vast economic and political consequences.
I largely share their assessment, and would add that three of the six justices who joined the IEEPA majority in the Supreme Court relied heavily on the major-questions doctrine to strike down the IEEPA tariffs. The same holds for the Federal Circuit ruling against those tariffs; its precedent governs the U.S. Court of International Trade, which would hear challenges to Section 301 tariffs. The imposition of sweeping tariffs on imports from 59 countries, plus the entire European Union, clearly constitutes a major-questions scenario, just as the IEEPA tariffs did. And like those tariffs, if kept in place, they would raise consumer prices and inflict substantial harm on the U.S. economy while souring ties with allies and trading partners.
Moreover, the Supreme Court’s majority in the IEEPA case stressed that “the president does not have the power to ‘impose tariffs on imports from any country, of any product, at any rate, for any amount of time.’” Chief Justice Roberts further noted that while some statutes grant the president tariff authority (explicitly including Section 301), “when Congress has delegated its tariff powers, it has done so in explicit terms, and subject to strict limits,” including “demanding procedural prerequisites.” As Shaffer and May explain, Section 301 targets specific “unfair” trade “policies” and “practices” and is not a broad grant of tariff authority to be used at the president’s whim. The authors emphasize that the proposed Section 301 tariffs go far beyond anything ever executed under Section 301 previously.
Ultimately, the new Section 301 tariffs appear to be yet another attempt to give the president a blank check to impose tariffs at will. The same logic applies to the administration’s plans to use Section 301 to target “structural excess capacity,” which rests on the untenable claim that it is an unfair trade practice for countries to produce more than they can consume themselves.
The new Section 301 tariffs cannot take effect without a notice-and-comment period. Public comments may be filed through July 6. Peter Harrell urges stakeholders to submit comments opposing the tariffs, and I concur. They are unlikely to alter the administration’s stance, but they could aid plaintiffs in future litigation against the tariffs if and when they are enacted.
If the administration proceeds, I encourage industry groups, public-interest organizations (such as the Liberty Justice Center, with which I collaborated on the IEEPA case), and state governments to pursue litigation challenging the Section 301 tariffs. The IEEPA and Section 122 cases demonstrate that courts are willing to strike down sweeping tariff power grabs and will not grant the executive unlimited deference. This is not a guaranteed victory, but it provides a basis for guarded optimism.
