A guest post by Georgetown legal scholar Peter E. Harrell.
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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
