Trump Imposes New Tariffs—Here’s Why They May Be Harder To Strike Down In Court

Topline

President Donald Trump imposed new tariffs on dozens of countries Thursday, claiming they’re justified because of forced-labor violations, and trade experts believe the law Trump used to impose the tariffs should make them harder to strike down in court—but their sweeping nature could still make judges skeptical.

Key Facts

Trump imposed tariffs of between 10% and 12.5% on imports of many goods from more than 80 countries, which took effect Friday morning at 12:01 a.m.

The tariffs were imposed under Section 301 of the Trade Act of 1974, which allows presidents to levy tariffs in cases of unfair trade practices, with Trump alleging in this case the tariffs are justified because the countries don’t properly ban the importation of goods produced using forced labor.

While Trump has imposed some previous tariffs more spontaneously, like his sweeping “Liberation Day” tariffs that were struck down by the Supreme Court, the government has to undergo a lengthier process before any Section 301 tariffs can be implemented, including carrying out an investigation into whether the tariffs are warranted.

Because of that, legal and economic experts view Section 301 tariffs as being harder to strike down in court, with economist Justin Wolfers writing the process gives the administration a “nice fat paper trail” that makes courts more willing to side with it versus inventing a new tariff policy “out of nowhere.”

Section 301 also explicitly gives presidents the power to levy tariffs—unlike the law Trump used to justify the tariffs the Supreme Court struck down—which means courts are typically willing to give presidents more leeway in how they’re used, legal experts argue.

That being said, some legal experts have questioned whether Trump’s new Section 301 tariffs could be sweeping enough to actually get struck down in court, with Peter Harrell, the Biden administration’s former senior director for international economics, telling The New York Times, “Trump is reinterpreting the statute to try to impose perpetual tariffs on almost all imports.”

Why Could These Tariffs Be Harder To Strike Down?

Section 301 tariffs have withstood legal challenges in the past, and the Trump administration has long viewed them as being more legally stable, with U.S. Trade Representative Jamieson Greer describing the statute as being “incredibly legally durable” in February after the Supreme Court struck the other tariffs down. Trade attorney Robert Shapiro told Forbes in February that any future tariffs imposed under Section 301 were generally less likely to be overturned, noting courts are less willing to question policies imposed under laws that are “straight saying tariffs.” The Supreme Court was also able to strike down Trump’s previous tariffs by just saying presidents don’t have authority to impose tariffs under the International Emergency Economic Powers Act, or IEEPA, but Shapiro said any challenges under Section 301 would require courts to more directly weigh in on the administration’s actual policies, which they may be more hesitant to do. Trade attorney Ryan Majerus similarly told Reuters on Thursday courts may be unwilling to rule against actions meant to curb forced labor. Section 301 tariffs are also designed to give administrations a fair amount of leeway, with Majerus noting the administration has “a lot of flexibility to adjust” the Section 301 tariffs under the law and attorney Tim Brightbill telling The Wall Street Journal that the Trade Act doesn’t require “mathematical precision” for policies to hold up in court.

Crucial Quote

“While prior tariff programs stood on questionable legal grounds, this new initiative is expected to withstand any potential legal challenge and likely represent the new normal for U.S. trade policy,” Nick Baker, co-lead of the Trade and Customs practice at financial advisory firm Kroll, said in a comment Friday.

Could They Be Struck Down Anyway?

Other experts are less sure the new Section 301 tariffs will be able to hold up in court, describing the forced-labor explanation as being a clear “pretext” for Trump to simply levy new tariffs and predicting courts will see through the forced-labor justification. “Section 301s have been pretty legally durable,” former U.S. trade official Sarah Bianchi told the Associated Press last week, when the Section 301 tariffs had been planned but not yet put in place. “But no one has tried to use it to basically put in place universal tariffs. I think there will be legal challenges.” In an analysis for the Peterson Institute for International Economics, Alan Wm. Wolff, former deputy director-general of the World Trade Organization, predicted the Section 301 tariffs would be struck down, describing them as “presidential overreach” and arguing there’s “no evidence” the tariffs “will materially reduce forced labor in other countries.” Wolff argued the way the tariffs only impose universal 10% and 12.5% tariff rates, rather than rates tailored to each country’s specific infractions on forced labor, suggests “the administration's primary objective may be maintaining global tariffs, rather than crafting a carefully calibrated response to the problem of forced labor.”

What to Watch for

No legal challenges have yet been filed against Trump’s new Section 301 tariffs, and if any are, they could ultimately take months or years to play out. Trade experts have predicted the tariffs announced this week will not substantially change the status quo on tariffs, given they have similar rates to the 10% global tariffs that were previously in effect before expiring this week. Experts have warned the forced-labor tariffs are expected to be a sign of more tariffs to come, however, pointing to an investigation that’s in progress on whether tariffs should be imposed to address manufacturing overcapacity. “The forced labor 301 tariffs are not the end of the story,” trade attorney Patrick Childress, a former counsel at the Office of the U.S. Trade Representative, said in a comment Thursday. “Expect the Administration to further increase the overall tariff rates on goods from trading partners to bring them closer to the IEEPA tariff rates the Supreme Court struck down.”

Key Background

Trump has made tariffs the centerpiece of his economic policy, despite widespread warnings from economists that imposing them would harm the economy and raise prices for consumers. The president levied widespread tariffs last year on nearly all countries under IEEPA, and has vowed to continue his tariff rollout after the Supreme Court’s ruling earlier this year struck those tariffs down. Trump’s focus on tariffs has persisted despite polling finding them to be politically unpopular, with a Harris Poll released in March finding even 64% of Republicans believe the tariffs have raised prices and 60% think they’ve had a more negative effect overall. The countries hit with the forced-payments tariffs have largely criticized the new policy since it was rolled out Thursday, particularly as many argue they already have sufficient policies in place to manage the import of forced-labor goods. “The US investigation did not provide meaningful evidence to support claims in relation to forced labour,” New Zealand Prime Minister Christopher Luxon said Thursday, calling the policy “extremely disappointing,” while European Commission Vice-President Kaja Kallas said the U.S.’ rationale for imposing tariffs on the European Union was “not really grounded.” Brazil has said it intends to impose retaliatory tariffs in response, accusing the U.S. of “manipulat[ing] an issue of great importance to human rights and workers' rights movement” for the sake of its “protectionist trade policy.”

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