Since the start of President Donald Trump’s second term, U.S. importers have navigated a series of back-and-forth tariff implementations and reversals, embedding a sense of uncertainty within the American psyche. That constant vacillation has even earned the president a not-so-favorable label from his opponents: “TACO” for Trump Always Chickens Out, a colorful epithet to paint his seeming cowardly attitude that always fuels the constant reversals.
Contrary to the opinions of those who hurl TACO insults at him, the president is aiming to patch up the holes the Supreme Court blew in his industry-wide and country-specific tariffs, which his administration implemented under the International Emergency Economic Powers Act of 1977 (IEEPA). And one of the laws he’s using to push his agenda has already proven effective for him in the past. In fact, even President Joe Biden used it.
“For the plaintiffs, challenging whatever the administration does here is going to be much more difficult than the IEEPA case,” Timothy Meyer, an international trade expert and Duke Law School professor, told Fortune.
The regulatory snafus of section 301
But the caveat to Section 301 is its mandatory regulatory period, which is more rigorous than the nearly immediate authority found in IEEPA. Because Section 301 is an agency action, the acting USTR must follow guidelines under the Administrative Procedures Act, a law that governs the internal procedures of federal agencies, including providing a public comment period that allows importers and other stakeholders to influence and potentially modify the list of targeted products and tariff rates.
Still, Meyer said if the administration successfully adheres to the procedural mandate associated with Section 301, it could lead to a legally-sound case for new tariffs. “I think the administration, if it does the investigation well, is going to have a reasonably good litigating position here,” he said. “But a lot depends on what the administration does.”
What can importers expect?
There’s also concern that some sectors already under investigation as associated with Section 232, another legal arm the president has sought to enforce tariffs, could be subject to a “double-scope” with the addition of a second investigation associated with Section 301. And to add even more uncertainty, Harden said these investigations could cause some countries currently negotiating trade deals with the U.S. to proactively add provisions that would shield them from investigation. Alternatively, she said it could derail current trade talks.
