Challenges to President Trump’s various invocation of tariff policies have multiplied, and I figured I would give an update on where each of the challenges currently stands.
Section 122 Tariffs
These were the tariffs that were imposed in the wake of the President’s loss in Learning Resources, Inc. v. Trump. They expired after 150 days (i.e., on July 24, 2026), but litigants challenged the lawfulness of the tariffs in the Court of International Trade, which ruled against the government. On appeal, however, the Federal Circuit stayed the CIT’s ruling, and the matter is currently pending. The government has filed its opening brief, the challengers have fired their respective response briefs, and the government’s reply brief is due on November 12. (The deadline for the reply brief was delayed by 30 days because the Department of Justice appears to be slightly understaffed; according to the request for an extension for time, the attorneys working for the government on this case were also working on appellate briefs or oral arguments in about two dozen other cases with deadlines in the next month.)
(For previous TaxProf Blog coverage of this case, see this post analyzing the challenge, this post summarizing the judgment by the CIT, and this post summarizing the Federal Circuit’s per curiam stay pending appeal.)
Section 301 Tariffs
Coinciding with the expiration of the section 122 tariffs, the Trump administration imposed “forced-labor” tariffs on virtually every country in the world under the auspices of section 301. A number of lawsuits ensued challenging the tariffs, and the Court of International Trade chose Learning Resources, Inc. v. United States as the sample case. The case was fully briefed in September and heard by a three-judge panel on September 30. The panel subsequently ordered supplemental briefing on October 2 on four questions relating to various statutory and procedural issues relating to the case (including whether vacatur would be the appropriate remedy if it finds that the government did not lawfully impose tariffs under the statute), and the parties filed their briefs in response on October 16. Accordingly, this case has been fully briefed and awaits a decision by the CIT.
(For previous TaxProf Blog coverage of this case, see this post analyzing the initial challenge and this post summarizing the states’ challenge.)
Section 338 Tariffs
As tensions have escalated between President Trump and our second largest trading partner, Canada, the Trump administration pulled out section 338 from the remains of Smoot-Hawley to impose 50% tariffs on certain items imported from Canada. At long last, those tariffs have been challenged in the Court of International Trade as a proposed class action, and over at The Dispatch, Ilya Somin (George Mason) describes the outlines of the lawsuit. From the piece:
Courts have already ruled against two avenues President Donald Trump used to impose his tariff regime. That hasn’t stopped his efforts to attempt to deploy obscure or outdated trade law provisions to justify new import levies.
His latest tool is the Smoot-Hawley Tariff Act of 1930, the notorious legislation that gravely exacerbated the Great Depression. Section 338 of that law is the basis of Trump’s massive 50 percent tariffs on a variety of Canadian imports, including motor vehicles, furniture, dairy products, and more. On October 20, Gellert Global Group Corp., a major food importer and producer based in New Jersey, filed the first lawsuit challenging those tariffs before the U.S. Court of International Trade, the federal court with jurisdiction over tariff cases.
Gellert, which imports Canadian cheese subject to the tariffs, is represented by the Liberty Justice Center, a public interest law firm I worked with on the case challenging the massive tariffs Trump imposed under the International Emergency Economic Powers Act (IEEPA). It resulted in the tariffs’ invalidation in February by the Supreme Court, which not only ruled that IEEPA doesn’t authorize tariffs but also emphasized that tariffs are a congressional power, and that the president does not have the power to “impose tariffs on imports from any country, of any product, at any rate, for any amount of time.” The Section 338 tariffs are a similar power grab.
The CIT established a briefing schedule with a three-judge panel, and the government’s response brief is due December 11, with a reply brief due on January 11.
(For previous TaxProf Blog coverage of these tariffs, see this post.)
