Former Trade Officials Explain Why Trump's Section 301 Tariffs Are Illegal
Their brief says the president is asserting "essentially boundless" authority to impose "economy-wide tariffs untethered from the statute Congress enacted."
President Donald Trump is trying to "shift the exercise of core tariff authority from Congress to the Executive Branch," three former trade officials warn in a brief they filed last week. If that sounds familiar, it's because Trump has attempted something similar twice before, only to be rebuffed by the courts.
This time around, the brief notes, Trump is relying on Section 301 of the Trade Act of 1974, claiming "a sweeping power to impose broad, economy-wide tariffs untethered from the statute Congress enacted." That assessment is especially noteworthy because the brief's authors, who are urging the Court of International Trade (CIT) to reject Trump's power grab, were intimately involved in drafting and enforcing Section 301.
One of them is Alan Wm. Wolff, who directed the Treasury Department's Office of Multilateral Trade Negotiations and served as general counsel for what is now the Office of the U.S. Trade Representative (USTR) during the Nixon and Ford administrations. Wolff played a leading role in drafting the Trade Act and wrote the original version of Section 301.
Wolff is joined by Carla Hills, the USTR under then-President George H.W. Bush, and Warren Maruyama, who was a USTR lawyer during the Reagan administration and the office's general counsel during the George W. Bush administration. Both have extensive experience in implementing Section 301, which authorizes the USTR to impose tariffs in response to a foreign "act, policy, or practice" that is "unreasonable or discriminatory' and "burdens or restricts United States commerce."
Section 301 "was enacted to address specific unfair trade practices by individual U.S. trading partners," Wolff et al. note. But the Trump administration views the provision as a license to impose sweeping tariffs on trading partners that account for nearly all U.S. imports, under the pretext that they have failed to "impose and effectively enforce a prohibition on the importation of goods produced with forced labor."
Contrary to the statute's requirements, the findings underlying that determination do not specify how each of the targets has fallen short or how their supposed failures burden U.S. commerce. Nor has USTR Jamieson Greer explained why the tariffs can be expected to ameliorate the problem he claims to be addressing.
The upshot of these "often sham 'investigations,'" Wolff et al. note, is a tariff regime strikingly similar to the one Trump tried to impose last year under the International Emergency Economic Powers Act (IEEPA), a 1977 law that does not mention import taxes and had never been used to impose them. Last February, after the Supreme Court ruled that IEEPA does not authorize tariffs at all, Trump switched to Section 122 of the Trade Act, which the CIT said he had improperly invoked.
"The Section 301 tariffs appear to be a thinly disguised pretext for reimposing the President's IEEPA tariffs under the guise of dealing with forced labor," Wolff et al. say. As they see it, "nothing in the statute authorizes [the] USTR" to "justify tariffs of unprecedented breadth" by aggregating "dozens of separate investigations" and setting "a novel standard that foreign countries have not in the judgment of the USTR met."
The Trade Act "imposed clear substantive and procedural limits on each tariff authority" it delegated, the brief notes. "It is not at all credible that Congress simultaneously conferred, by implication, an unlimited tariff power through Section 301, administered by a cabinet official, without any indication in the statute or legislative history that it intended to do so."
By asserting "an effectively boundless Section 301 authority through the aggregation of numerous investigations," Wolff et al. say, Greer "exceeds the limits established by Congress and upsets the constitutional allocation of trade powers." But what do they know?
A thing or two, suggests the Liberty Justice Center, which filed one of the lawsuits challenging Trump's tariffs. "The people who know Section 301 best," it says, "are telling the [CIT] that the administration is using the statute in a way Congress never designed it to be used."
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