- New proposed tariffs use a forced-labor justification, but they mirror the details of the previously struck-down “Liberation Day” emergency tariffs.
- Swapping statutory tools after court losses mirrors earlier strategies on travel bans, border wall funds, and deportations.
- The Supreme Court can invalidate a single legal instrument, but it cannot block an administration drawing from dozens of overlapping delegated powers.
On July 24, the Trump administration invoked Section 301 of the Trade Act of 1974 and imposed a new round of tariffs on imports from 60 countries that account for roughly 99.4% of U.S. imports.
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The stated reason for this latest round of tariffs was that these countries have failed to prohibit or enforce bans on goods produced with forced labor. This latest round comes after the previous tariffs reached their statutory expiration of 150 days — imposed under Section 122 of the same act.
Those temporary tariffs were imposed after the Supreme Court ruled that the 1977 International Emergency Economic Powers Act invoked in the ‘Liberation Day’ tariffs, does not authorize tariffs. Within hours of the most recent tariff pronouncement, small businesses had filed suit in the Court of International Trade.
Same blueprint, new rationale
If this feels familiar, it should. Set the latest planned tariffs beside the “Liberation Day” tariffs imposed last year and the resemblance is striking.
Both import fee lists reach nearly all U.S. trade. Both pair a 10% baseline with a higher tier. Both preserve the same carve-outs: goods already covered by Section 232 national security duties, USMCA-compliant imports from Canada and Mexico, civil aircraft parts, and a product exemption list that substantially overlaps the old one.
The similarity is uncanny precisely because the justifications are so different. The IEEPA tariffs rested on declared emergencies over fentanyl trafficking across our borders and over trade deficits caused by other countries’ tariffs and barriers against American goods.
Yet today, the rationale for these new tariffs is other countries’ failure to ban imports of goods made with forced labor.
These are entirely different problems that would seem to call for distinct remedies. Yet, somehow each diagnosis produces nearly the same prescription: broad duties on nearly everyone, at nearly the same rates.
The pretext of forced labor
It strains belief that both Australia and China are tariffed at 12.5% under the new system justified by forced labor. China’s reputation for forced labor use is poor enough that there is a specific act to deal with imports from Xinjiang — the Uyghur Forced Labor Prevention Act. Australia, meanwhile, passed the Modern Slavery Act in 2018 that requires companies to assess and report annually on the potential risks of forced labor throughout their supply chains.
Yet, these two countries face the same tariff rates under the new plan and these rates are substantially similar to what they faced under the older plans. When every problem yields the same answer, it starts to feel like the answer was arrived at long before the problem it is purportedly addressing was decided on.
According to most economists like myself, tariffs are an unwise economic policy in the best of times and should be abolished. They are a tax paid by American families and businesses — including Utah’s manufacturers, retailers and farmers — and no rotating cast of justifications changes that reality.
A familiar executive playbook
But the deeper lesson here is about how policy survives legal defeat. The change of justification in service of a fixed goal is not new; it is a signature move. Recall the Trump administration’s first-term travel restrictions: the original “Muslim ban” executive order was blocked in the courts within days. A revised travel ban followed and was blocked again. The third version, rebuilt on a multiagency national security review, was upheld by the Supreme Court.
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Or consider the border wall: when Congress refused to appropriate funds, the administration declared a national emergency and redirected military construction money, shifting among accounts as courts forbid particular streams.
Or, more recently, the removal of Venezuelan nationals is another example: when courts blocked summary deportations under the Alien Enemies Act, many of the same people were removed anyway through ordinary immigration proceedings and transfers to third countries.
In each case, the courts invalidated an instrument and administration officials found another one.
This reveals something important about what the Supreme Court can and cannot do. The Court is reasonably good at striking down a specific policy implementation, but it is not built to stop a political agenda.
The United States Code contains dozens of overlapping delegations of power to the executive: IEEPA, Section 122, Section 201, Section 232, Section 301, immigration authorities, emergency authorities. A determined administration can usually find another door, and litigation over each new door takes months or years — during which time the policy often continues to operate.
Plugging a leaking dam
For those who hoped February’s tariff ruling would meaningfully slow the tariff agenda, the past five months have been both illustrative and frustrating. The Court was clear that IEEPA does not authorize expansive global tariffs. And yet the average American importer today faces a tariff wall built on a very similar blueprint, at rates only somewhat lower.
Does this mean our balance of powers is not working? No. Only that a reliance on the courts alone will always be limited.
Using the Supreme Court to halt an agenda like this — as we have seen repeatedly with the administration’s successive immigration policies — is like plugging a leaking dam with your finger. You may stop one stream, but the water pressure remains.
As has become clear in many dimensions of the political environment in recent years, the way to stop a political agenda is not to defeat its latest legal vehicle but to replace the agenda itself with one more compelling to constituents.
Tariff skeptics need to make the affirmative case that open trade lowers prices for families, expands markets for American producers, and strengthens rather than weakens the country. Most importantly, they need to win elections on it. In the shorter term, Congress could reclaim the tariff power it has delegated away, piece by piece, since the 1930s. Until that happens, expect the dam to keep springing leaks faster than any court can plug them.
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