“The Supreme Court blocked it. They blocked it. But that didn’t stop me.” So said President Joe Biden in 2024 after the justices ruled against his effort to cancel $430 billion in student loan debt. He tried to use another legal authority to cancel debt, but that was ultimately blocked in court too.
President Donald Trump is trying much the same thing on tariffs. He first imposed sweeping worldwide levies last year using the International Emergency Economic Powers Act of 1977. The Supreme Court ruled 6-3 in February that those tariffs were unlawful.
Since then, the administration has been trying to reimpose the border taxes in other ways. The latest method is to invoke Section 301 of the Trade Act of 1974. That law authorizes tariffs if the U.S. trade representative finds that a trading partner is engaging in certain unfair practices.
But the new strategy is also legally vulnerable, as a new lawsuit by 25 states in the U.S. Court of International Trade highlights. Yes, the law gives the USTR substantial discretion to impose tariffs in some circumstances to respond to particular abuses. But it can’t be a blanket authorization for whatever tariffs the president happens to want.
Jamieson Greer, Trump’s U.S. trade representative, claims to have investigated 60 economies representing more than 99 percent of U.S. trade in less than three months. And voilà, his agency concluded, “all of the investigated economies” — all? — happen to be intolerably lax toward goods made by forced labor.
The remedy, you’ll be shocked to learn, is to tax imports from those countries at more or less the same level as they were under the IEEPA tariffs held unlawful by the Supreme Court.
The states call this process a “sham.” They argue that “USTR did not undertake the required level of investigation and consultation” under the law and that the tariffs aren’t “tailored to eliminate the purportedly unreasonable conduct of concern.” The findings are cursory and the resulting tariffs aren’t calibrated to them.
Courts might be reluctant to second-guess an executive branch judgment on a factual question such as the prevalence of forced labor in foreign supply chains. But the Trump administration’s work here is so slipshod and its motivations so obvious to anyone paying attention that the states have a real case.
The Constitution gives the tariff power to Congress for a reason. If Trump has a case for tariffs — whether as revenue raisers, spurs of domestic production or anything else — he ought to do what the Constitution envisions and candidly persuade the people’s elected representatives that they’re in the public interest. Tcreative legal justifications for unilateral tariffs may only get him so far.
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