A new class-action lawsuit in the Court of International Trade is seeking an invalidation of the Trump administration’s Section 301 tariffs of 10-12.5 percent on imports from 86 countries. A similar (but not class-action) suit has been filed by some of the same companies that won a case challenging the administration’s IEEPA tariffs.
The class-action complaint argues that the new tariffs exceed the authority Congress granted in Section 301, which “is a targeted, country-specific and practice-specific remedial authority.” Section 301 permits the Office of the U.S. Trade Representative to “act only upon a determination that a particular act, policy, or practice of a foreign country is unreasonable or discriminatory and burdens or restricts United States commerce,” the complaint states, and “any responsive action must be directed to that act, policy, or practice.”
The complaint asserts that any determination to the contrary – i.e., that Section 301 authorizes “duties of this scope across substantially all imports from substantially all trading partners, at rates selected in advance and without a sufficient connection to the statutory determination and remedial purpose” – would constitute an unconstitutional delegation of Congress’ tariff power under Article I of the Constitution.
The complaint further alleges that the new tariffs are arbitrary and capricious because USTR “failed to provide a reasoned, record-based explanation for its determinations or for its selection of near-uniform duties across 60 economies with materially different enforcement records and trade profiles.” On this point the complaint points out that (1) USTR purported to complete 60 separate investigations in three months when it took seven months to complete a single investigation of China in 2017, (2) the Section 301 tariff rates closely track the rate structure of the IEEPA tariffs, (3) statements by senior Trump administration officials support the inference that the Section 301 tariffs were designed to replace the IEEPA tariffs rather than to respond to specific practices, (4) the coverage of the Section 301 tariffs tracks the value of U.S. imports rather than an explained distinction in forced labor import practices, and (5) USTR offered no explanation of how each economy’s particular practices burden or restrict U.S. commerce or how near-uniform tariff rates on economies with vastly different enforcement records constitute responsive actions.
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