Trump pursues new import taxes to replace the tariffs the Supreme Court rejected

WASHINGTON -- When the Supreme Court killed his favorite tariffs in February, President Donald Trump promptly rolled out temporary import taxes to replace them. But those stopgap levies expire in less than three months.

Now the administration is scrambling to put more durable tariffs in place to keep revenue flowing into the U.S. Treasury and to shore up the president’s protectionist wall around the American economy.

Starting this week, the Office of the U.S. Trade Representative will begin hearings in two investigations that are expected to lead to a new round of U.S. tariffs — taxes paid by importers in the United States and usually passed on via higher prices to consumers who are already fed up with the high cost of living.

Trump’s newest tariff push is sure to face more challenges in court but is likely to prove sturdier than the one the Supreme Court tossed out.

First up is a hearing Tuesday and Wednesday into whether 60 economies — from Nigeria to Norway and accounting for 99% of U.S. imports — do enough to prohibit the trade in products created by forced labor.

“For too long, American workers and firms have been forced to compete against foreign producers who may have an artificial cost advantage gained from the scourge of forced labor,” U.S. Trade Representative Jamieson Greer said in March. The administration could punish scofflaws with new tariffs.

Then, next week, the administration will hold hearings on whether 16 U.S. trading partners — including China, the European Union and Japan — are overproducing goods, driving down prices and putting U.S. manufacturers at a disadvantage. The economies being investigated account for 70% of U.S. imports, according to Erica York of the Tax Foundation. Again, the probe could result in new tariffs.

Most major economies, including China, the EU and Japan, are on both lists.

Trump's top trade official insists he won't prejudge the investigations

The administration has brought the cases under Section 301 of the Trade Act of 1974, which authorizes tariffs and other sanctions against countries found to engage in “unjustifiable,” “unreasonable” or “discriminatory” trade practices.

U.S. Trade Representative Greer, who is overseeing the investigations, has insisted he won’t prejudge them.

But importers and foreign countries have doubts the process will be fair. After all, Trump’s Treasury secretary, Scott Bessent, did not wait for the investigations to be completed to proclaim that the U.S. government will replace its original tariff revenues with new import taxes, including ones to be imposed under Section 301. The president himself has said that new tariffs “are going to get us more money.’’

“If you believe the Treasury secretary and the president, then the cake is already baked,” said Scott Lincicome of the libertarian Cato Institute’s Center for Trade Policy Studies. “These investigations will result in tariffs that approximate what the Supreme Court overruled in February.’’

On Feb. 20, the high court ruled that Trump had overstepped his authority by invoking the 1977 International Emergency Economic Powers Act (IEEPA) to impose double-digit tariffs on almost every country on Earth. Trump had used the act to plaster taxes on imports with eager abandon. For example, he conjured up a new tariff on Canada (though he never actually imposed it) because he didn’t like a Canadian television ad criticizing his trade policies.

He used the threat of IEEPA tariffs to strong-arm top U.S. trading partners – including the EU, Japan and South Korea – into accepting lopsided trade agreements. The levies also brought in a lot of revenue -- $166 billion – before the Supreme Court shut them down, ruling that IEEPA couldn’t be used to impose tariffs. Now the federal government must refund money to importers who paid those tariffs.

Tariffs remain Trump's go-to

Trump had a handy way to quickly recoup some of the lost revenue — which had been expected to hit $1.6 trillion over the next decade – at least temporarily. Section of 122, also of Trade Act of 1974, allows the president to impose global tariffs as high as 15% for up to 150 days.

The administration wasted no time. Two days after the Supreme Court decision, it slapped 10% Section 122 tariffs on imports. Trump said he’d raise the levies to the maximum 15% but hasn’t.

The clock runs out on those tariffs July 24. Congress could extend them. But lawmakers have little enthusiasm for approving what amounts to a big tax as November’s midterm elections approach: American voters are already furious about the high prices, for which tariffs are at least partly to blame.

Section 301 offers another opportunity to replicate the the protectionist impact of the IEEPA tariffs. There are no limits on the size of Section 301 tariffs. They expire after four years but can be extended.

Perhaps best of all, from the Trump administration’s perspective after its Supreme Court defeat, Section 301 tariffs withstood legal challenges when the president used them in his first term to pound China in a dispute over Beijing’s sharp-elbowed policies to promote its own tech companies.

Any new 301 tariffs are sure to be challenged again in court. But judges might not throw them out.

“Even if it is a veiled — or less-than-veiled — attempt to reinitiate the IEEPA tariffs, he still has the cover of the process itself,’’ said trade lawyer Joyce Adetutu, a partner at law firm Vinson & Elkins.

Importer calls investigation a "sham''

Critics have latched onto the speed with which Trump’s latest investigations are proceeding. Imposing the Section 301 tariffs against China in the president’s first term took nearly a year of investigation and public comment. If the latest investigations produce new tariffs in time to replace the expiring Section 122 levies, the process will have taken less than half that long.

“It’s such a short timeframe,’’ said Kenya Davis, a partner at the law firm Boies Schiller Flexner who has done pro bono work on human trafficking and forced labor. “It’s so condensed that it doesn’t make a lot of sense that they can do it that quickly.’’

Importers bracing for the return of painful tariffs can take some comfort in knowing that Trump’s Section 301 tariffs likely won’t be as erratic as his IEEPA levies. He has to follow procedures before imposing them.

“One of the reasons Trump used IEEPA is because it was just a complete blank slate’’ — or seemed to be before the Supreme Court ruling, Cato’s Lincicome said, describing it as “a little tariff switch in the Oval Office that Trump could flip on and off anytime he wants; he wakes up in the morning and he doesn’t like a Canadian television commercial, he flips the switch ... You really can’t do that with 301.’’