The latest evolution of President Donald Trump’s trade war arrived on Thursday evening: New tariffs ranging from 10 percent to 12.5 percent, targeting most of America’s largest trading partners.
Those new tariffs replace the so-called “global tariff” of 10 percent that Trump implemented in the wake of the Supreme Court’s ruling in February that struck down an earlier set of tariffs. That “global tariff” had been implemented under the auspices of a law that grants the president power to impose temporary tariffs that last no more than 150 days—in other words, that was always a stop-gap solution, and the tariffs announced Thursday are meant to be a more permanent arrangement.
But like the first round of tariffs and the second round of temporary tariffs, this third round of tariffs has some obvious legal and constitutional deficiencies. In levying these new tariffs, the Trump administration is once again ignoring limits that are written into the very law it is seeking to use. It is also disregarding the constitutional principle that the Supreme Court highlighted in its February ruling on the earlier tariffs.
In short: Trump’s new tariffs are likely illegal too. But it will probably require another lengthy court battle to overturn them.
Let’s take the two issues one by one, starting with the statutory shortcomings.
Trump is invoking Section 301 of the Trade Act of 1974 to impose these new tariffs. Starting today, imports from 17 American trade partners (including Canada, Mexico, and the European Union) will be subject to 10 percent tariffs. Imports from another 43 trading partners will be subject to 12.5 percent tariffs.
Ostensibly, these tariffs are meant to combat “forced labor.” The Trump administration says the tariffs are the result of an investigation into 60 foreign economies that “fail to prohibit or to effectively enforce a prohibition on the importation of goods produced wholly or in part with forced labor.”
Immediately, a logical problem emerges. The announcement says that the 10 percent tariff will apply even to countries that “impose a forced labor import prohibition,” as long as the administration believes that prohibition is not being adequately enforced. It is unclear what, exactly, a foreign country would have to do to get removed from that list. That makes it fairly obvious that combating forced labor is a pretext for what the Trump administration really wants to do: have more tariffs.
Before Section 301 can be invoked, the U.S. Trade Representative must make an “investigation” into whatever behavior is being used to justify the tariffs. In this case, those investigations were a “sham” meant to reach a predetermined conclusion, Scott Lincicome, vice president of general economics at the Cato Institute, in The Dispatch.
“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,” Lincicome writes. “The action gives targeted countries no way to get the tariffs lifted by eliminating their supposedly bad behavior. And the whole thing establishes precedent for an ‘automatic tariff generator’ that Trump or a future president can deploy at will.”
Both U.S. Trade Representative Jamieson Greer and Treasury Secretary Scott Bessent told reporters earlier this year that the Section 301 tariffs were meant to replace the tariffs that had been struck down by the Supreme Court. Greer has been quite clear that the timeline for the “investigations” would be sped up so the new tariffs could be ready when the 150-day window for Trump’s other tariffs closed.
Both in timing and in substance, the investigations underpinning these new tariffs look fabricated to reach a specific outcome.
The announced tariffs also seem to violate the law’s requirement that tariffs be “appropriate” to the harm caused. As Peter Harrell, an attorney and scholar at Georgetown University’s Institute of International Economic Law, explained in a June post at the Volokh Conspiracy, that’s not the case here.
“Rather than trying to quantify the harm that, for example, Italy or Japan’s alleged failure to adequately enforce a prohibition on imports made with forced labor does to the U.S. economy, USTR’s [the Office of the U.S. Trade Representative] investigation simply provides a few illustrative examples that attempt to show that a handful of individual products potentially made with forced labor, such as rice exported by Myanmar, might have displaced some quantum of U.S. exports in some markets,” Harrell wrote.
Then, there are the constitutional problems. When the Supreme Court struck down Trump’s earlier tariffs, Justice Neil Gorsuch spelled things out quite directly in his concurring opinion: “The Constitution lodges the Nation’s lawmaking powers in Congress alone, and the major questions doctrine safeguards that assignment against executive encroachment.”
What Trump is trying to do with these new Section 301 tariffs seems to go well beyond “executive encroachment.” He is again stretching some limited tariff powers granted by Congress and attempting to turn Section 301 into, as Lincicome put it, an “automatic tariff generator.”
That was clearly not Congress’s intention in passing Section 301. Even if it was, the major questions doctrine—which requires that matters of major economic and political significance be settled by Congress—and the related nondelegation doctrine would prohibit the legislature from handing over such broad power over trade policy.
“While the Supreme Court’s nondelegation precedent is far from completely clear, last year’s decision in FCC v. Consumers’ Research held that delegations of the power to impose taxes and other financial levies must have a clear ‘floor’ and ‘ceiling’ and that ‘[t]he guidance needed is greater when an agency action will affect the entire national economy than when it addresses a narrow, technical issue,'” explains Ilya Somin, a law professor at George Mason University and one of the attorneys who fought Trump’s earlier tariffs. “There is no meaningful floor or ceiling under the administration’s approach to Section 301. And the power claimed is clearly one that massively affects the ‘entire national economy.'”
Of course, there is a significant difference between an executive action being obviously illegal or unconstitutional, and the president being prevented from doing it. Every single time Trump’s tariffs have gone before a court, the administration has lost.
Despite that, it took nearly a year for the first set of tariffs (which were announced in April 2025) to be struck down by the Supreme Court (in February 2026). The second set of tariffs expired before they could get to the Supreme Court—but they had already been ruled unlawful by one lower court.
It will likely take a long time to get another tariff case challenging the Section 301 tariffs through the court system. In the meantime, American businesses and consumers will be burdened by the cost of these new tariffs—estimated to be about $100 billion annually—thanks to a president who is unwilling to recognize the flaws with his tariff plans or the limits of his executive powers.
If ever there was a time for Congress to make meaningful changes to American tariff laws, it is now.
