Imagine a judicial system that announces a verdict in February, files charges in March, convicts all sixty defendants in June, and then acts surprised when one of them challenges the proceeding.
This is almost exactly what has happened in international trade just this year.
On February 20, the Supreme Court famously struck down President Trump’s IEEPA tariffs. That same day, the President announced that he was imposing a temporary 10 percent global tariff under Section 122 and directed the US Trade Representative to begin investigations under Section 301 of the Trade Act of 1974. Those investigations were formally opened on March 12.
At the February 20 press conference, the President stated that they were “doing the various investigations necessary to put fair tariffs, or tariffs period, on other countries.” US Trade Representative Jamieson Greer chimed in as well, describing Section 301 investigations as “incredibly legally durable” tools that would preserve “continuity” in the administration’s tariff program. Then, on a podcast released on April 15, Treasury Secretary Scott Bessent said, “we will be implementing or conducting Section 301 studies so that the tariffs could be back in place at the previous level by beginning of July,” (emphasis added).
Section 301 authorizes USTR to investigate whether a foreign government’s acts, policies, or practices are unreasonable or discriminatory and burden or restrict U.S. commerce. It is supposed to establish whether responsive action is warranted. But senior administration officials were already describing those investigations as the route to a particular tariff outcome delivered on a particular timeline.
On June 2, the USTR found that all sixty economies investigated, which cover 99.4% of all US imports, had failed to either impose or effectively enforce a prohibition on the importation of goods produced with forced labor. The standard they were held to, according to the USTR, is one that only the U.S. has adopted.
As I wrote in May, this administration has been engaged in an endless search for tariff authority, trying one statute after another until something sticks. Section 301 is the latest attempt and, in the form that it has taken, is especially damaging as it requires the United States to put its name and credibility behind formal findings against nearly all of our major trading partners.
The list of exemptions makes the policy harder to reconcile with its stated purpose. The USTR carved out raw materials whose taxation “could lead to the unavailability of domestic supply,” products that “could cause economy-wide disruptions,” and goods that “cannot be grown or produced in sufficient quantities or at reasonable prices in the United States or obtained from other sources.”
So either we have announced to the world that we will keep buying the goods we ourselves have flagged as products of forced labor whenever the alternative is inconvenient, or the findings were built to fit a July deadline. The second reading means we leveled formal accusations against nearly every friend we have in order to justify tariffs the President could not otherwise impose. Neither reading paints us in a good light.
Our trading partners have noticed.
On July 27, Brazil became the first country to formally request consultations through the World Trade Organization. Their request, circulated on July 30 as DS646, challenges both Section 301 tariffs announced against them; the 25 percent duty from the Brazil-specific investigation and the 12.5 percent duty from the forced labor investigation. It covers roughly $6.6 billion in Brazilian exports and argues that the U.S. has acted “inconsistently” with various portions of the WTO’s General Agreement on Tariffs and Trade and the Dispute Settlement Understanding.
Fifty-nine other countries received essentially the same verdicts on the same day and nearly all of them are WTO members with access to the same forum and the same argument. A defendant does not have to prove its own innocence when the prosecutor convicted sixty parties at once on a schedule the Treasury Secretary described on a podcast. Brazil’s filing will read almost exactly the same as Japan’s, Argentina’s, or Britain’s.
Worse, the pattern isn’t slowing down. On July 24, the very day that these Section 301 tariffs took effect, the European Commission fined Google roughly $1 billion for breaches of the Digital Markets Act. The President responded on Truth Social by announcing that “we will immediately initiate a 301 Investigation” into the practice of “ROBBING American Companies,” adding that "the penalties will be entirely reversed and, we anticipate, a substantial TARIFF to be placed on them at the earliest possible moment."
Once again, the result of the investigation has already been pre-determined. In February, the administration at least allowed a few weeks to pass between promising the tariffs and finding the facts to support them. This time, even the appearance of an open-ended investigation has disappeared.
The reality is that tariffs have failed on their own terms. We still have an income tax, despite assurances that tariff revenue would replace it. Manufacturing jobs still haven’t shown up. The “ninety deals in ninety days,” while rhetorically clever, turned out to be somewhere between 20 and 30 depending on how one views “frameworks of a deal.” China, at least on the dimensions the White House says it cares about, seems to be doing just fine.
But beyond that, consider what these Section 301 tariffs mean in the broader context of trade relations. We put the name and reputation of the U.S. government behind a formal finding that sixty trading partners, most of them our friends, fail to keep the products of forced labor out of their markets. We did it on a timetable that three senior officials described in public before anyone had investigated anything. And we did it while carving out exemptions for precisely the goods that we most depend on, which speaks volumes about how seriously we take the charge.
A country that keeps its word gets the benefit of the doubt for a long time and that benefit is worth far more than any tariff schedule. We have been spending down that benefit for sixteen months in the service of tariffs that, predictably, have not worked. It’s time to put this failed experiment to bed once and for all before the reputational harm becomes even greater.
