The Volokh Conspiracy
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The Courts Should Rein in Trump's Proposed Section 301 Tariffs as Well
A guest post by Georgetown legal scholar Peter E. Harrell.
I have previously written about Donald Trump's massive planned Section 301 tariffs, arguing that they have some of the same flaws as those invalidated by the Supreme Court in the IEEPA case (which I helped litigate). Today, I am pleased to present a guest post on the Section 301 tariffs by Peter Harrell. Peter is Visiting Scholar at Georgetown's Institute for International Economic Law, an attorney in private practice, and one of the nation's leading experts on trade law. He played an important role in helping to develop the arguments that ultimately led to the invalidation of the IEEPA tariffs. In today's post, he lays out what I think is the most thorough and insightful analysis of the Section 301 tariffs, to date.
I agree with the vast majority of his points. If I have a reservation, it is that a constitutional nondelegation argument against the Section 301 tariffs might be more promising than he suggests. In my view, FCC v. Consumers' Research - decided by the Supreme Court last year - outlines important constraints on tax power delegations that the Section 301 tariffs run afoul of. For example, under the administration's apparent approach to 301, there are no meaningful limits to the magnitude of the tariffs they could impose, which violate the Consumers' Research requirement that there must be floors and ceilings.
What follows is written by Peter Harrell, not me (Ilya Somin):
On June 2, the U.S. Trade Representative (USTR) issued a sweeping proposal to impose new tariffs on 60 trade partners. The Trump Administration has been transparent that these tariffs are simply part of its "fallback" strategy to continue taxing U.S. imports following the Supreme Court's February 20 ruling against many of the tariffs that Trump imposed last year. As Treasury Secretary Scott Bessent put it in a press interview shortly after the Supreme Court loss, he expected that while the Administration would have to use more complicated authorities to impose tariffs going forward, "the tariff rates will be back to their old rate within five months."
The Trump Administration's new tariffs rely on Section 301 of the Trade Act of 1974 (19 U.S.C. § 2411), which authorizes USTR to investigate unjustified or unfair foreign trade practices and to impose tariffs or other trade remedies in response. Section 301 almost definitionally provides a stronger legal basis for tariffs than the statute Trump first relied on to impose tariffs last year, a 1977 emergency powers statute known as "IEEPA." Unlike IEEPA, which does not include words such as "tariff" or "duty," Section 301 clearly authorizes the Executive Branch to impose tariffs in specific circumstances and Presidents have repeatedly used it as a trade policy tool since the 1970s. But Trump's use of the statute to impose tariffs on countries—86 of them, counting the member states of the European Union individually—that make up more than 99% of U.S. imports is novel and far exceeds any prior use. Section 301's text and history, as well as broader legal and constitutional considerations, all make clear that USTR's planned tariffs exceed what Section 301 authorizes and should be circumscribed by the courts.
How We Got Here
Tariffs were a central promise of President Trump's 2024 Presidential campaign, in which he committed to establish global tariffs of between 10% and 20% with a higher rate on imports from China. Shortly after his inauguration, Trump used IEEPA to impose tariffs on Canada, Mexico, and China in February, and to impose a set of sweeping global tariffs last April. IEEPA nowhere directly contains the power to tariff, but the Trump Administration argued that IEEPA's power to "regulate…[the] importation or exportation of… any property in which any foreign country or a national thereof has any interest" included a power to impose a tax or fee on imports.
The Supreme Court rejected this argument in its February 2026 ruling in Learning Resources v. Trump, with a total of six Justices reading the power to "regulate…importation" as not including a power to tax. Justices Roberts, Gorsuch, and Barrett relied on the "major questions doctrine" to read tariffs out of the statute, finding that "to sustain a claim that Congress has granted them an extraordinary power," such as the power to impose tariffs on trillions of dollars of imports amounting to hundreds of billions of dollars in revenue annually, "executive officials must identify clear authority for that power," and that IEEPA, a statute lacking any of the words, procedures, or guardrails that Congress uses when it enacts a tariff statute, failed to clearly authorize tariffs. Jackson, Sotomayor, and Kagan reached the same conclusion about the scope of IEEPA's authorities but relied on the statute's text and history without invoking the major questions doctrine, a canon of construction they remain skeptical of as an interpretive matter.
Even before its SCOTUS loss, however, the Trump Administration had begun planning to recreate most of its tariffs using a two-part legal strategy. The first phase, which Trump invoked hours after the SCOTUS decision, was to rely on a provision of law known as Section 122 of the Trade Act of 1974 to impose 10% tariffs on many U.S. imports, based on a Presidential finding that the U.S. faces "large and serious…balance of payments deficits." The Court of International Trade, a specialty court that reviews trade matters, rejected that theory last month, though the government is now appealing that decision and is continuing to collect the tariffs while the appeal is going. Regardless of how the appeal turns out, however, Section 122 only authorizes tariffs for 150 days unless Congress chooses to extend them. Hence USTR's recent proposal to impose tariffs under Section 301.
The Statute and its Challenges
Legal problems with USTR's proposed tariffs start with the statute itself.
Section 301 authorizes USTR to investigate foreign trade practices and to impose tariffs if a foreign government violates the terms of a U.S. trade deal or engages in an "unjustifiable" or "unreasonable or discriminatory" trade practice that adversely impacts the U.S. economy. Specifically, Section 301(b), the provision USTR is relying on for the new tariffs, provides that if USTR conducts an investigation and finds that "an act, policy, or practice of a foreign country is unreasonable or discriminatory and burdens or restricts United States commerce," USTR "shall take all appropriate and feasible action authorized under subsection (c)…and all other appropriate and feasible action within the power of the…to obtain the elimination of that act, policy, or practice." (19 U.S.C. § 2411(b)). Subsection (c) then authorizes USTR to impose "duties or other import restrictions on the goods of…such foreign country for such time as the Trade Representative determines appropriate."
Although the Supreme Court has never weighed in on Section 301, lower courts have, and held that USTR actions pursuant to Section 301 are subject to judicial review pursuant to the Administrative Procedure Act (APA). Simply put, USTR's new proposed tariffs do not comport with the requirements of 301.
USTR's stated rationale for the new tariffs is that it conducted an investigation into foreign country imports of products made with forced labor, and found (a) that U.S. trade partners either failed to prohibit imports of goods made with forced labor or, if countries had an import prohibition on the books, that they failed to effectively enforce it, (b) that failing to prohibit or failing to enforce a prohibition on imports of products made with forced labor is unreasonable and (c) that the practice burdens U.S. commerce. USTR then proposes to impose either 10% or 12.5% tariffs, depending on the country, in response. (In addition to the tariffs over forced labor imports, USTR is also investigating 16 trading partners for allegedly maintaining industrial overcapacity, and appears likely to impose even higher tariffs in the weeks or months ahead, effectively recreating the rates that Trump originally imposed under IEEPA).
The first statutory weakness with the new tariffs is that USTR did not show on a country-by-country basis how a foreign country failing to effectively enforce a ban on products made with forced labor burdens U.S. commerce. Past 301 investigations, such as Trump's 2018 Section 301 into China's technology transfer requirements, IP theft, and innovation policies, resulted in a 200-page report detailing numerous specific practices and included an estimate that these policies caused at least $50 billion annually in harm to the U.S. economy. Such specific showings of economic harm are required by the statute, which only authorizes tariffs if the "unreasonable or discriminatory" foreign trade practice in fact "burdens or restricts" U.S. commerce. As the Senate Finance Committee's Report for the Trade Act of 1974 described 301's intent, it was to "retaliate against foreign countries which impose unjustifiable or unreasonable restrictions against U.S. commerce" (emphasis added). Where past investigations covered multiple countries, as in a set of investigations into taxes on U.S. tech companies released in early 2021, the investigations themselves resulted in detailed findings regarding each individual foreign country.
Congress has amended the statute several times to clarify the kinds of unfair practices that the statute can be used to address, including specifying that the statute can be used to target "a persistent pattern of conduct that…permits any form of forced or compulsory labor." USTR's investigation correctly finds that there is a strong set of international rules and norms against forced labor and that the U.S. itself has for decades prohibited the import of products made with forced labor. But rather than trying to quantify the harm that, for example, Italy or Japan's alleged failure to adequately enforce a prohibition on imports made with forced labor does to the U.S. economy, USTR's investigation simply provides a few illustrative examples that attempt to show that a handful of individual products potentially made with forced labor, such as rice exported by Myanmar, might have displaced some quantum of U.S. exports in some markets.
Admittedly, the traditional remedy when a court finds that USTR failed to create an adequate record for 301 tariffs is to remand the record to USTR for further development. USTR may recognize that its showings of harm are weak, but assess that it can clean up the record as litigation proceeds. However, as Greg Shaffer and Jeremiah May recently argued (as part of a broader essay laying out a variety of legal challenges to the tariffs), courts do have the power to vacate tariffs imposed pursuant to a defective remedy, and that an investigation that is clearly largely a pretext to recreate tariffs that were earlier ruled unlawful would present a strong case for vacatur.
Moreover, USTR's proposed tariffs also fail to comport with the statute's requirement that tariffs be "appropriate." Section 301(b) admittedly gives USTR substantial discretion in determining the quantity of tariffs or other remedy to impose. It directs USTR to "take all appropriate and feasible action authorized under [the statute], subject to the specific direction, if any, of the President…." While the Supreme Court has never addressed the scope of Section 301, lower courts have generally interpreted Section 301(b) broadly. But courts have not held that the remedy can be unbounded—the statute is clear that USTR's action must be "appropriate." In a case decided last year, for example, the Court of Appeals for the Federal Circuit held that while "appropriate" is "non-specific" and gives USTR substantial discretion, the statute's requirement that actions be "appropriate" "is anchored by the statute to a specific purpose: an appropriate discretionary action is one that can end or reverse the investigated conduct."
Here, USTR is not using the tariffs in a way that is "appropriate." The government has been transparent that its goal is to recreate the IEEPA tariffs, not to actually encourage foreign trade partners to amend their practices with respect to their own imports of products made with forced labor. Indeed, even if a country remedied the alleged deficiency with respect to forced labor, the Trump Administration has made clear that USTR would simply find some other pretextual basis to maintain the tariffs.
The Major Questions Doctrine and Constitutional Limits
Arguments that the proposed tariffs violate Section 301 are bolstered by the Supreme Court's "major questions doctrine," which Justices Roberts, Gorsuch, and Barrett invoked in ruling against Trump's prior IEEPA tariffs, and which argues for a narrow reading of the statute. In Learning Resources earlier this year, the three Justices argued that Trump was attempting to use IEEPA to collect trillions of dollars in new tax revenue in a way that Congress did not clearly intend.
Today, the Trump Administration seeks to create substantially identical sweeping tariffs under Section 301. While Section 301 does clearly authorize tariffs and does require additional procedural steps that IEEPA did not, including the requirement to conduct an investigation and to publish proposed tariffs for public comment, the same fundamental logic that led the Court to rule against the IEEPA tariffs applies to the new proposal: Trump attempting to transform a statute's purpose from the one that Congress intended--in this case to authorize limited tariffs to address discrete foreign trade abuses--into the purpose he wants, which is to establish a new global tariff regime many times higher than the tariffs that Congress has over the years adopted. This, the major questions doctrine says, the courts should not allow. Congress intended its delegation of trade powers under Section 301 to be reasonably narrow and discrete, and the courts should enforce those limits.
Beyond the major questions doctrine, litigation against Section 301 tariffs may force the courts to address a question they ducked when they ruled against Trump's IEEPA tariffs: the extent to which Congress can lawfully delegate its tariff power to the President. Because the Supreme Court ruled against Trump's IEEPA tariffs based on its interpretation of that statute's text, the Court did not need to address whether Congress could, constitutionally, delegate most of its Article I, Section 8 constitutional power to "lay and collect Taxes, Duties, Imposts and Excises" to the Executive Branch. But USTR's plan to use Section 301 in an effectively unbounded way squarely raises the question of how much tariff authority Congress can lawfully delegate. Admittedly, just last year the Supreme Court reaffirmed its traditional approach to the non-delegation doctrine, which upholds statutes so long as Congress provides an "intelligible principle" to guide their use, and here the government will argue that 301's procedural requirements and substantive limits provide such a principle. Existing precedent suggests the courts will likely agree with the government here, and instead rely on other arguments to rein in the government's expansive use of the statute.
What a Loss Would Mean to Trump
A ruling against Trump's new Section 301 tariffs will not end Trump's efforts to tax imports, and not simply because the self-proclaimed "tariff man" is unlikely to abandon his favorite policy tool. A ruling that narrowed the scope of Section 301 would still enable Trump or a future president to use the statute in appropriate narrower circumstances consistent with its past use. Should Trump, for example build a strong Section 301 case against individual countries that engage in currency manipulation, and document the cost to the U.S., USTR could impose appropriate tariffs in response. Trump could also rely more heavily on other, narrower tariff authorities, such as anti-dumping and countervailing duty tariffs, if his agencies can show facts that meet statutory requirements.
Then there is the option that America's founders envisioned for a President who wanted to raise taxes: Trump could ask Congress to overhaul America's tariff regime. While Congress by all accounts seems unlikely to enact new tariff laws in the current polarized political environment, there are bipartisan proposals in Congress to, for example, establish a broad new baseline U.S. tariff. Irrespective of the policy arguments regarding such a proposal, Congress undoubtedly has the constitutional authority to enact it.
Trump campaigned on tariffs and his win in 2024 gives him the moral and political authority to raise tariffs within the bounds of the law. A single electoral win, however, does not empower a President to upend the Constitution's separation of powers or usurp Congress's authority over trade. Potential challengers to Trump's new Section 301 tariffs have strong arguments on their side, and the courts should continue to insist that Trump follow the law when he imposes tariffs, rather than rewrite them without Congress's approval.
