Since Jan. 20, tariffs have been at the center of the Trump administration’s America First Trade Policy. We have now finally arrived at what was heralded as the big moment – the moment multiple agencies were requested to complete investigations into “unfair and unbalanced trade” and “economic security matters,” among other topics, per the president’s America First Trade Policy Memo. Because the president has been talking repeatedly about Apr. 2 as a big day for tariffs, the media has widely covered the likely impacts of large-scale duties on consumers, business, markets, trading partners, and beyond. This article will not rehash those impacts.
Instead, this analysis focuses on the issues that many of us in the U.S. trade and customs bar have been waiting to have answered: exactly what tariffs are coming, on what products, from what countries, according to what timeline, according to what legal authority, and with what (if any) exceptions. Those are the questions that are particularly legally important because they define the scope of any potential challenge that could be brought against the executive branch’s tariff moves.
What Has Been Happening in Tariff World
Before we get to the latest announcement, let’s start with what has happened in the last two months – at least some highlights. Since my last article on this topic explaining the tariffs on products from Canada, Mexico, and China that were announced in early February, the president has threatened and imposed various additional trade restrictions. (Colleagues helpfully have put together comprehensive trackers that have tried to keep up with the many declarations of new and suspended and cancelled tariffs or other trade restrictions, as well as with the retaliatory moves U.S. trading partners have developed.)
In mid-February, the White House announced that 25 percent tariffs would be coming in March on imports of steel and aluminum (and their derivatives) from all countries, and these did in fact come into effect on Mar. 12.
In early March, the one-month suspension of the tariffs on products from Canada and Mexico imposed in connection with the president’s fentanyl-related emergency expired, and those tariffs came into effect, although they were somewhat quickly amended to exempt particular imports that were compliant with United States-Mexico-Canada free trade agreement (USMCA) rules.
In late March, the White House proclaimed there would be 25 percent tariffs starting on Apr. 3 on automobiles and certain automobile parts – with some exceptions for certain parts that are compliant with the USMCA. (An Apr. 2 White House fact sheet confirms these are still on track.)
In addition to these product-specific tariffs, the White House in March issued an executive order in which it declared that exports to the United States from any third country found importing oil from Venezuela would be subject to a 25 percent tariff. This move was noteworthy in light of its “secondary” approach, punishing a country for its foreign commercial policies toward another country – not a typical use of tariffs or tariff authorities.
Finally, the administration has also previewed some potential forthcoming tariffs by announcing investigations into imports of copper, imports of timber and lumber, and into digital services taxes (DSTs) levied or due to be levied by certain U.S. trading partners. The latter is not a new issue; both of the last two administrations studied the DST issue. Ultimately, the Biden administration decided to suspend and then close the investigations into several countries’ DSTs. Also expected shortly under the same legal authority are massive service fees on Chinese maritime transport operators and other trade restrictions in connection with unfair trade-related acts, policies, and practices by China in the shipbuilding sector.
What Did the President Just Announce?
Yesterday, having received the results of the studies that he had commissioned on his first day in office, the president issued an executive order under the National Emergencies Act and International Emergency Economic Powers Act (IEEPA) finding that “underlying conditions, including a lack of reciprocity in our bilateral trade relationships, disparate tariff rates and non-tariff barriers, and U.S. trading partners’ economic policies that suppress domestic wages and consumption, as indicated by large and persistent annual U.S. goods trade deficits, constitute an unusual and extraordinary threat to the national security and economy of the United States.”
On that basis, the president has imposed a minimum 10 percent tariff on nearly all goods imported into the United States beginning on Apr. 5. For goods from dozens of countries, and beginning on Apr. 9, the tariff rate increase will be higher than 10 percent – up to a high of 49 percent for products imported from Cambodia. Trade lawyers are still parsing the wording of all the various parts of what the White House issued, including but not limited to a potential list of exemptions (the order includes a 37-page annex listing particular goods that appear to be exempt from this tariff regime for various reasons), yet-to-come annexes, and further guidance on how cumulative these rates are in respect of other existing tariffs, but the bottom line remains: nearly everything coming into the United States from everywhere will face a notable surcharge by this weekend.
While the breadth of the order is no doubt sweeping, it leaves many nuances unanswered that will keep companies, as well as U.S. trading partners, very busy for the coming days and weeks.
Is the President Legally Authorized Do This?
The imposition of tariffs that is now unfolding is unprecedented in legal terms. Until February, no president had relied upon IEEPA as his basis for increasing tariffs. And what was announced yesterday expands the scope and scale of IEEPA tariffs to a staggering total. So, is this IEEPA-premised action supported by the text of IEEPA itself, or is the president acting beyond his delegated authority?
To answer this question, one needs to first step back to understand U.S. trade law’s vast collection of delegations. Most of the tariffs imposed before February were based on various delegations afforded to the executive branch by Congress in several Cold War-era statutes. These statutes enable the executive branch to raise tariffs when an agency or the president finds a threat to the U.S. economy or national security.
When these laws were passed, the global economy looked quite different from what it does today, just as the international and U.S. trade law toolkit was likewise different. As I detailed back in 2020 in an article in the Stanford Law Review, on the whole, the focus of these statutes was on empowering the president to negotiate trade agreements that would lower tariffs in reciprocal fashion with trading partners. By contrast to this general goal, the handful of provisions in these long trade acts that allow the president to raise tariffs for security reasons were exceptions, intended to be used sparingly and to accommodate moments where the president needed to act faster than Congress could on behalf of an industry or issue. And indeed, most presidents treated these special tariff-raising provisions as exceptions for decades until the first Trump administration, when they were dusted off and deployed on multiple occasions.
The other important feature about the U.S. trade law landscape is that, from the 1970s until today, while Congress has repeatedly tightened the procedural hurdles and its scrutiny of its tariff-lowering delegations, it did not do the same with respect to the security-premised tariff-raising provisions. As a result, these delegations are subject to very little congressional supervision.
What should be clear now to Congress – and as some members of the House Ways and Means Trade Subcommittee repeatedly emphasized at their latest hearing – is that Congress retains the authority to legislate and re-take its constitutional prerogative to regulate commerce with foreign nations. Like six years ago, there are some legislative proposals on the table to do just that, and yesterday, the Senate passed a resolution that would terminate the national emergency on fentanyl underlying some of the administration’s tariffs on products from Canada. But little progress is expected in the near term on a statutory overhaul and, even if the Canada-specific resolution were to make it through the House of Representatives, Congress would likely need to overcome a presidential veto.
As my co-authors and I have explained, courts have been highly deferential to the executive branch on these sorts of trade-related actions lately and not-so-lately. Some litigation is still ongoing, such as a major case related to the tariffs put on products from China back in 2020, but for the most part, the government has won those challenges.
No importer has brought a case yet to the U.S. courts challenging the new tariffs of the last two months, but with yesterday’s announcement, it seems very likely litigation is imminent. To be sure, IEEPA is somewhat differently situated from these other statutes because, unlike many of them, it does not expressly mention “tariffs” or “duties” as among the president’s available tools. Rather, it says he may “regulate” “importation or exportation.” Some colleagues have proposed additional thoughtful arguments to try to overcome the courts’ apparent inclination toward deference, but the deference is widespread on multiple dimensions. Given past practice, any case that seeks to put a stop to the IEEPA tariffs no doubt faces an uphill battle.
What’s a Company or Trading Partner to Do?
For now, the focus is on trying to understand all the technicalities and details behind yesterday’s big announcement and how it will be implemented. Many importers will try to qualify under one of the few exceptions or to advocate for more exceptions. Trading partners are already lining up to negotiate exemptions at the same time they prepare to retaliate against U.S.-made goods and likely also prepare dispute settlement complaints under their free trade agreements and at the World Trade Organization.
As noted above, there may be a path to a U.S. courthouse for importers facing irreparable harm, even if narrow. With more tariffs on the way under other authorities, lawyers are watching agencies closely to see if, apart from the foundational tariff challenges, there is room for procedural-styled challenges under the Administrative Procedure Act, especially where the executive branch is relying on years-old investigations to act now. The lack of clarity in the implementation of these overlapping and sometimes conflicting announcements may necessarily require litigation to sort, or it may require agencies to issue guidance that provides some relief simply because those agencies lack the resources and capacity to do all that the president wishes.
Economic Security and the Past, Present, and Future of Foreign Commerce
Over the last several years, the executive branch has sought to take advantage of what some see as blurry lines between international commerce, national security, and foreign policy to defend broad actions by agencies and by the president in international trade. But as Tim Meyer and I have argued, these tariff-raising statutes merely draw on the president’s national security expertise to make discrete determinations in limited circumstances; they do not open the door to the president to deploy such authorities as the nation’s primary foreign commercial policy tool. This week’s announcement will test the strength of both international and U.S. domestic trade rules.
Editor’s note: This piece is part of the Collection: Just Security’s Coverage of the Trump Administration’s Executive Actions