Source: The Conversation – USA (2) – By Kent Jones, Professor Emeritus of Economics, Babson College
President Donald Trump just can’t quit tariffs.
He suffered a major defeat when the Supreme Court ruled in February 2026 against the sweeping emergency tariffs he announced the previous year. Then, on May 7, a federal court knocked down the interim tariffs he announced after the high court’s decision.
Yet Trump appears undeterred and keeps finding a plan B – and then C and D.
“So, we always do it a different way,” the president told reporters after the May 7 decision. “We get one ruling, and we do it a different way.”
That different way, currently, is using an authority called Section 301. This option is likely to invite more litigation, but it may wind up more powerful and durable than previous levies. To that end, the administration has opened two probes, paving the way for fresh tariffs later this year against China and other major trading partners.
Why does this matter? U.S. trade policy, to the average person, may seem like a complicated mess of acronyms and legalese. But as a trade economist who has been following the tariff wars, I believe Trump’s strategy of making aggressive global tariffs the centerpiece of his foreign economic policy is quite clear – even as his trade policy overall remains deeply unpopular.
And if he succeeds, the average levy may jump to the highs of the “Liberation Day” tariffs of April 2025, before some were scaled back in subsequent – if incomplete – deals with trading partners.
A tariff obsession
At first glance, Trump’s fixation with tariffs may seem surprising.
They have failed to stimulate U.S. manufacturing and employment, while
consumers and importers have absorbed the brunt of the price hikes. But to Trump, what seems to matter is that the Supreme Court took away his tariff-making power when it ended his emergency tariffs. He now wants that power back.
Indeed, that power was the appeal of the Liberation Day tariffs, which let Trump set tariff rates at any level and for any length of time, with the flexibility to assign different tariffs to different countries. With such tools, he could threaten more punishing levies to enforce bilateral trade deals.
In addition, he saw the revenue that those tariffs brought in as a source of power and has resented the Supreme Court order that they be refunded to the U.S. companies that paid them. Trump is even angry at any companies that have decided to collect the tariff refunds.
But Trump is especially furious at his Supreme Court appointees, Amy Coney Barrett and Neil Gorsuch, whose votes swung the February decision, and continues to excoriate them. He declared he was “ashamed” of all the justices who voted to strike the tariffs, characterizing them as “fools” and “lapdogs” who didn’t have “the courage to do what’s right for our country.” Trump also said the court’s decision would inadvertently push him to “impose tariffs more powerful … rather than less.”
In short, Trump is moving from his Liberation Day tariffs to what I call “revenge tariffs” – in an attempt to show the high court that it cannot stop him.
Planning the next battle
Section 301 of the 1971 U.S. Trade Act is designed to remedy foreign countries’ trade practices deemed discriminatory, unfair, unreasonable or burdensome to U.S. commerce. It sets no limit on the tariff amount; lets the president discriminate among targeted countries; and generates tariff revenue without violating the Constitution’s taxation clause, a major element in the Supreme Court’s February decision.
Another potential advantage: Federal courts have typically given the president discretion in determining the purpose, scope and remedies chosen to implement Section 301.
The main reason why Trump didn’t use Section 301 last year for his Liberation Day tariffs – opting instead for another law, the International Economic Emergency Powers Act – was because he thought the latter would grant that kind of unlimited tariff authority but without any extra procedural requirements. To a certain point, that proved correct – until his Supreme Court loss.
AP Photo/Mark Schiefelbein
As for next steps, the Trump administration has proposed two Section 301 investigations. One is against alleged “excess industrial capacity” among several countries – shorthand for overproduction through government intervention – and the other against alleged failures to enforce bans on trade using forced labor.
To Trump, the appeal is that these probes have a vast scope. And he has already indicated that he seeks to use any tariffs stemming from the probes as leverage: If a country that has inked a trade deal considers abandoning the agreement, for example, Trump has warned that he could threaten Section 301 tariffs later.
“Any Country that wants to ‘play games’ with the ridiculous supreme court decision, especially those that have ‘Ripped Off’ the U.S.A. for years, and even decades, will be met with a much higher Tariff, and worse, than that which they just recently agreed to. BUYER BEWARE!!!” Trump wrote on his social platform, Truth Social, in February.
Using Section 301, in short, would be akin to declaring that every U.S. trading partner in some way damages the U.S. and will be targeted with punitive tariffs. This action would be unprecedented – and likely face legal challenges. These would first go to the Court of International Trade, which also nixed the interim tariffs, and appeals would go to the U.S. Court of Appeals for the Federal Circuit. The final instance of appeal would be the Supreme Court.
Fair and balanced?
International trade law has established mechanisms for trading partners to crack down on forced labor or address industrial capacity through policy changes or negotiations. In such a scenario, tariffs would provide the means, not the ends, to address these more substantive policy disputes.
But so far, Trump seems to have another goal: correcting the “unfair trade imbalances” that he also cited for the Liberation Day tariffs. One government Section 301 petition claims that foreign excess capacity is letting countries rack up “persistent” trade surpluses. Another claims that trade in forced-labor goods harms the U.S. trade balance by increasing U.S. imports of underpriced products and decreasing U.S. exports by forcing them to compete with cheap competition.
If these petitions succeed, Trump could then impose the Section 301 tariffs individually, country by country, as part of his global trade balancing goal. Trump also wants to seize back the revenue that his tariffs generated.
The catch is that Section 301 requires cases to be based on actionable practices, not trade balance outcomes. Moreover, the 2025 tariffs didn’t even accomplish any balancing: The U.S. deficit in goods actually increased that year. So using Section 301 is just as unlikely to improve the U.S. trade balance, which is determined by macroeconomic factors, not foreign excess capacity or imports of goods made with forced labor.
A question of deference
Will there be any guardrails on Trump’s plan to introduce the new tariffs in July 2026, as he has indicated? This will depend in part on whether courts continue the traditional deference of the pre-Trump era to the president in these cases.
Trump is counting on this, but it’s not a slam dunk. Many experts question whether overcapacity is a trade violation. And on the forced labor issue, the U.S. National Trade Estimate Report added potential offenders besides China only in March 2026 – an announcement well timed in anticipation of the current Section 301 case. The forced labor case may in fact be intended to compel U.S. trading partners to abandon supply chains that include Chinese goods.
But as it happens, the European Union and other countries are more effective than the U.S. in prohibiting forced-labor imports and therefore shouldn’t be targeted. Trade experts also point out that the U.S. itself produces forced-labor goods in private prisons and has often failed to stop forced-labor imports. It’s just as guilty as many other countries of not enforcing its ban on such trade, these legal scholars argue.
Still, courts have traditionally given latitude to the president on Section 301. It lets the White House pursue trade liberalization while respecting the norms of global trade rules that the U.S. championed at the time.
Trump has, in contrast, made a practice of undermining those rules and can be expected to stretch Section 301 as far as possible. Indeed, his rhetoric seems to suggest that the Section 301 cases were chosen primarily to establish a permanent tariff regime by providing all-purpose bargaining leverage, not correcting damaging foreign trade practices.
For these reasons, it’s likely that Trump will face legal challenges – as well as a potential impact on his party at the midterm ballot box – as he tries to test the limits of U.S. trade law.
Kent Jones does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.
– ref. How Trump plans to keep tariffs at the center of his economic policy despite stinging court losses – https://theconversation.com/how-trump-plans-to-keep-tariffs-at-the-center-of-his-economic-policy-despite-stinging-court-losses-282093
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