Debatable: Will Trump’s new tariffs be overturned?

Nick Baker, a managing director at the financial advisory firm Kroll, said that the Supreme Court’s decision not to take a Section 301 case in 2026 showed the justices are willing to give the executive branch latitude under the provision — and that as a result the new levies are likely here to stay:

“The judicial precedent for Section 301, including recent challenges from the 301 that has been targeting China for close to a decade now, the courts have almost always sided with the executive branch. That delegation of power and the scope of those investigations leaves a lot of deference for USTR, Commerce to really evaluate and determine those unfair trade practices. So, in that regard, there is a lot of deference given to the executive branch to reach those determinations, including determinations that may be policy driven. So if judicial precedent is any indication of the success of future challenges, I think 301 is very strong footing and [is] the statute that most trade practitioners were afraid of because it has such sticking power.”

Alex Jacquez, senior vice president of policy at the liberal group Groundwork Collaborative and a former Biden aide, said that the tariffs aren’t necessarily legal but that Supreme Court would likely uphold them:

“There is pretty wide latitude to tariffs under 301. I think the question is whether the distortions of the process go too far for the court to allow. … It’s extremely broad, the findings are uniform across dozens of countries at a time, there’s no specific country-by-country facts being put forward. There’s no real proof that the practice burdens or restricts US commerce.

“This is all well and good, but the decision will be whether, at the end of the day, five Republican-appointed justices feel like Trump should be able to go through with this action that he very clearly campaigned on and seems determined to try to do. And it seems like at least under IEEPA, there was a willingness to allow these kinds of broad tariffs to go forward as long as they were brought under less specious rationales. The cover of the letter of the law in investigation and findings gives the court enough cover to allow Trump to do what he wants to do. Whether they would survive under a different court is a different matter.”

Sara Albrecht, chairman and CEO of the Liberty Justice Center, which is representing small businesses suing over the tariffs, argued that Trump’s tariffs are an illegal overreach:

“We won the IEEPA case so clearly we have some background. And it is different than IEEPA, there’s a few elements that are the same — the delegation of the power to the president, just such a broad-based power delegation, is one of the things that would be similar to IEEPA. And clearly it’s different because Section 301 is a valid statute. We’re not trying to say Section 301 on its face is unconstitutional. We’re saying the way it’s being applied is.

“The fact that, in 82 days, they decided to levy tariffs on 99.4% of the goods that we import into this country is absurd. They’ve made very frequent pretextual statements to the fact that these are meant to replace IEEPA and Section 122 and anybody looking at arm’s length at this will see that. So it’s going to be a different case. I can’t comment on whether it’s going to be harder or not. Clearly, we think we have a good case, otherwise we would not have filed.”