In February, after the U.S. Supreme Court declared that the White House acted illegally when it imposed worldwide tariffs without Congressional involvement, administration leaders made it clear that they weren’t going to take the law for an answer. Treasury Secretary Scott Bessent told reporters that same day, “this administration will invoke alternative legal authorities to replace the … tariffs. We will be leveraging … Section 301 tariff authorities.” In a later interview, he said the administration “will be implementing or conducting Section 301 studies so that the tariffs could be back in place at the previous level by beginning of July.”
What he meant by “Section 301” was a provision of the Trade Act of 1974 which lets the president impose punitive tariffs on countries that violate various trade restrictions. The idea was clear: the White House would just re-enact the same tariffs the Supreme Court declared invalid, using a different federal law. Now, the same plaintiffs from that first case have returned to court to argue that this second batch of tariffs is just as illegal as the first. And in a friend of the court brief that we filed in the Court of International Trade today, we argue that this new case demonstrates exactly why the powers of the “administrative state” must be reined in.
Section 301 (which actually dates to 1988) was never intended to expand presidential power, but to limit it. It imposes significant limits on tariffs by requiring federal officials to go through a process of investigation and research into a foreign country’s abuses before imposing such taxes—and then to tailor those taxes to eliminate those specific abuses. Yet instead of following that process, the administration made up its mind first and only pretended to follow the rules, while all along having its mind made up.
That’s a problem because when Congress creates a procedure for making a decision, that procedure is supposed to be followed in good faith; it isn’t a game the government is supposed to play with loaded dice. But as we explain in our brief, there are many cases, from a wide variety of contexts, in which government officials have pretended to abide by an investigate-and-report procedure, when in reality having predetermined the outcome. When that happens, courts aren’t required to go along with the charade.
From environmental law to Medicaid to zoning, there are many legal areas where laws create procedures for making decisions. And as one California court put it, the ultimate determinations “are not supposed to be a post hoc rationalization for a decision already made. To the contrary, they are supposed to ‘conduce the administrative body to draw legally relevant sub-conclusions supportive of [the] ultimate decision; the intended effect is to facilitate orderly analysis and minimize the likelihood that the agency will randomly leap from evidence to conclusions.’”
Sadly, the bureaucracy often doesn’t follow these rules, and instead rubber-stamps a politicized decision made in advance.
That’s what’s happened here. The administration’s supposed “findings”—intended to prove that dozens of countries are engaged in “forced labor”—actually don’t find any such thing. They consist of a lengthy report that simply recites the same wording over and over, coming to the absurd conclusion that countries such as the U.K. and Sweden are relying on forced labor. What’s more, they impose a 10% or 12% across-the-board tax on purchases from all these countries—despite the fact that Section 301 requires these tariffs to be tailored specifically to the circumstances of these countries. In other words, the report is a sham.
As trade scholar Scott Lincicome observes, “the findings were clearly predetermined. The methodology is thin to the point of embarrassment. The remedy is both ridiculously blunt and wildly out of proportion to any measurable economic distortion.”
The administrative state has been justly termed one of the gravest threats to constitutional liberty in modern life—and the tariff situation is a perfect example of why. Tariffs are bad policy, and they’re extremely unpopular with the American public. They’re also illegal. Yet thanks to the power of unelected bureaucracies, they’ve been imposed on Americans, raising the cost of living and harming the country’s reputation overseas.
We can only hope that the courts will once again insist that the government follow the law.
You can read our brief here.
Timothy Sandefur is the Vice President for Legal Affairs at the Goldwater Institute’s Scharf-Norton Center for Constitutional Litigation.
