It is a truth that is universally acknowledged, most recently by the US Supreme Court, that presidents do not have the power to lay taxes upon their citizens without statutory authorization from Congress. Justice Neil Gorsuch was particularly eloquent on this point. President Donald Trump differs with this reading of law and history and insists on imposing massive tariffs himself. He has come up with two alternative legal strategies to impose tariffs now that the justices have invalidated his first approach.
Here is an explanation of how he plans to do it, and why it will not work.
The tariffs struck down by the Supreme Court on February 20 originated on April 2, 2025, when President Trump declared nearly universal “reciprocal tariffs” on nearly all imports from nearly all countries under emergency authority, although it was not clear that there was an emergency of any kind. After the Court decision, the president declared that balance of payments (BOP) difficulties required a 10 or 15 percent tariff against most imports. While only economists understand what a BOP difficulty is, and fewer still can find that this country is in this difficulty, mercifully, the Congress in creating this authority in 1974 was prepared for any unbounded executive action. It limited any president to 150 days of tariffing before Congress has to act.
Before the current BOP tariffs expire four months from now, the president, his secretary of the treasury, and his chief trade negotiator have said that the original emergency tariffs will be replaced under other authorities, chiefly Section 301 of the Trade Act of 1974. The standard to trigger action under that statute admittedly can be interpreted as being very low—namely, the president must find that a foreign government's acts, policies, or measures are “unreasonable” or “unjustifiable” and that they “burden United States commerce.”
“Unjustifiable” means that a foreign country has violated a trade agreement. For the most part, under the heading of the pot calling the kettle black, that part of the statute will probably not be relied upon for a basic reason. The administration has violated our nation’s most fundamental trade agreement commitments against all countries already. A second potential reason for not using the “unjustifiable” rationale relates to the promise by the United States when the World Trade Organization (WTO) was founded in 1995, that it would not find trade agreement violations “unilaterally” but would submit the question to adjudication by an independent international panel of trade experts.
Accordingly, the standard applied will be most likely one of “unreasonableness.” It is hard to imagine Trump administration officials not being able to find a foreign trade barrier that affects US goods adversely wherever they look. The supposition: The president can have his tariff wall back. But can he?
The 2026 United States Trade Representative (USTR) notice invoking Section 301 identifies 16 economies—China, the European Union, Singapore, Switzerland, Norway, Indonesia, Malaysia, Cambodia, Thailand, South Korea, Vietnam, Taiwan, Bangladesh, Mexico, Japan, and India—as the targets of the Section 301 investigations into structural excess capacity. USTR also announced a second Section 301 investigation focused on forced labor, examining whether countries fail to prohibit the importation of goods from their trading partners produced under those conditions.
Unlike the “excess capacity” investigation (which named 16 economies), the forced-labor probe covers about 60 countries and economies. The bottom line, combining both investigations: The excess-capacity investigation encompasses some 60–70 percent of US imports; the forced-labor investigation encompasses a likely 80–90 percent or more of imports if all potentially involved countries are counted and adding in China.
Refining these numbers by calculating the trade of each of the targeted countries under both sets of recommendations makes the result clear: In the 16-economy “excess capacity” probe, the estimated share of US imports covered is around 70 percent. In the forced-labor probe (some 60 economies), coverage is around 90-95 percent, or nearly all US imports. The number of countries falling into these categories raises this question for the courts: Did Congress delegate nearly all of its tariff authority to the president under Section 301?
In the early 1970s when Section 301 was enacted, US trade faced many barriers abroad blocking market access for US exports not covered by trade agreements. The barriers included unfair product standards, violations of intellectual property, barriers to services, lack of transparency, and ineffective dispute settlement, all of which plagued US international trade. Congress provided retaliatory authority even if no international rules were violated. For international trade, it was the law of the frontier. Section 301 was thus created as a negotiating tool, providing bargaining leverage. The president was to investigate the foreign practice, consult with the foreign government, and seek elimination of the practice or obtain compensating concessions from the foreign government. And failing all that, the president could retaliate by imposing tariffs or other import restrictions on the goods or fees on the services of the offending country.
The use of Section 301 was upheld by the Court of International Trade and then the Federal Circuit Court as recently as September 25, 2025, in a case against the USTR and Commissioner of Customs brought by businesses that import Chinese products. The businesses, claiming that it is beyond the power of the president to modify a Section 301 tariff he had previously declared, have petitioned for certiorari—asking the Supreme Court to review the lower courts’ decisions ruling for the administration.
The high court rarely opts to take trade cases, which constitute a tiny fraction of its docket. This pending case does not directly raise the kind of fundamental question the Supreme Court will be faced with at the end of the just-announced Section 301 investigations. A suit against the blanket use of Section 301 for imposing across-the-board tariffs based on the breadth of the just-initiated investigations by USTR would be a different matter. Re-imposing in effect the Trump “reciprocal” tariffs, which the administration has repeatedly stated is exactly what is intended, will inevitably raise the same question that caused the Court to strike down those tariffs last month.
How would a challenge to the blanket use of Section 301 differ from the recent emergency tariff case? To be sure, it is true that Section 301 is a tariff statute, whereas the Court ruled that the emergency statute that was the rationale for the April tariffs was not a tariff statute. It is also true that the president and USTR were given clear authority under Section 301 to determine what was “unreasonable” when it comes to a foreign practice. These are major differences from the prior court case.
The courts will no doubt go through an exercise of applying doctrines of “major question” and “nondelegation” of too much power being granted to the president by Congress, issues that occupied most of the pages of the February 20 Supreme Court decision. These are methodological questions. On the substance, ultimately the Court will be forced to come out in the same place, that the tariff wall of recent memory can only be restored by the Congress, not the president nor his loyal Cabinet officials. Why? Because if the Trump administration does what it has pledged, it will have done it again—tried to exercise the full tariff power that only the Congress has been granted.
The governing doctrine of the case is simple. Prior generations of common law jurists, who were fond of using maxims to aid in addressing law and facts, might use this one: If it looks like a duck, if it walks like a duck, if it quacks like a duck, it’s a duck. They did have another even simpler maxim that is exactly on point, “Res ipsa loquitur.” The thing speaks for itself. The intent of the current use of Section 301 is to reinstate a broad tariff against nearly all imports without clear authority from Congress. To do so is not permitted the president by the US Constitution.
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