Delegation of Tariff Authority by Other Means

(Gregory Shaffer and Jeremiah May – Just Security) In February 2026, the Supreme Court struck down the Trump administration’s expansive tariff regime, holding in Learning Resources, Inc. v. Trump that the International Emergency Economic Powers Act (IEEPA) does not authorize the president to impose tariffs on imports from every country in the world. Within weeks, the U.S. Trade Representative (USTR) responded by launching two sets of investigations under Section 301 of the Trade Act of 1974, which authorizes investigation into other countries’ practices that may burden or restrict U.S. commerce. These latest investigations collectively cover almost all trade into the United States (roughly 99 percent). They involve alleged structural excess capacity in 16 economies (including China, the European Union, Japan, Korea, and Mexico), and lack of sufficient protections against imports made with forced labor in 60 economies (again involving China, Japan, and the EU, as well as Canada, Switzerland, and the United Kingdom). The scale of these investigations is unprecedented, as is the administration’s transparent intent to use Section 301 to replace the tariffs imposed under IEEPA that the Supreme Court had just invalidated. Treasury Secretary Scott Bessent, for example, said in March that he expects “tariff rates will be back to their old rate within five months.”. The legal and constitutional question is whether this effort will succeed. More precisely: can the president use perfunctory Section 301 investigations against every major trading partner as an adaptable, permanent mechanism to set and then adjust tariff rates for every country in the world indefinitely, at the president’s will? The administration’s use of Section 301 is not merely aggressive but structurally transformative. By combining mass investigations, expansive use of the statute’s tariff-modification authority, and the judicial deference historically accorded to USTR, Section 301 can be made to function as something that it was never designed to be: a de facto permanent delegation of tariff-setting power to the executive. The constitutional delegation question, which the Court avoided in Learning Resources, has not gone away. It has migrated to a new statutory vehicle, and courts will have to confront it. – Delegation of Tariff Authority by Other Means