The Trade Strategy Has Not Changed

The specific authorities this administration is using have changed, but the trade strategy has not. — Jamieson Greer

U.S. Trade Representative Jamieson Greer said that last week, and it is the most candid description anyone in the administration has offered of what has been happening to American trade policy since February. The vehicle keeps changing. The cargo does not. In February, the Supreme Court struck down the administration's "Liberation Day" tariffs, ruling 6-3 that the Constitution vests taxing power in Congress, not the executive ^[1]. The ruling forced $81 billion in refunds ^[2]. Within days, the administration imposed a new 10% global tariff under Section 122 of the Trade Act of 1974 ^[3]. In May, the Court of International Trade struck that down too, ruling that routine trade deficits do not constitute the "large and serious balance-of-payments deficits" the statute requires ^[3]. By July, the administration had launched over 75 Section 301 investigations and imposed forced-labor tariffs on 60 countries ^[4][5]. What makes this third iteration different is not the tariff levels — Treasury Secretary Scott Bessent had telegraphed in April that tariffs could be back in place at the previous level by the beginning of July ^[4] — but the rationale. The administration wrapped the same universal tariff structure in a forced-labor mandate, and that changes the politics. Greer argued that decades of moral persuasion had failed to remove forced labor from global supply chains, positioning the tariffs as the necessary enforcement tool ^[6]. The moral framing is not purely decorative. When Sri Lanka's president issued a gazette on July 10 banning imports of forced-labor goods, the country qualified for a lower 10% tariff instead of the 12.5% rate ^[6]. The mandate has genuine coercive power: it forces trading partners to change their domestic labor practices or pay a penalty. That makes the tariffs politically toxic to oppose — no member of Congress wants to be seen voting against a measure that purports to fight forced labor. The moral wrapper, however effective as politics, does not fix the legal problem that killed the first two tariff regimes. That problem is the same each time: the administration imposes blanket duties across dozens of countries without the country-specific findings the governing statute requires. The Supreme Court said IEEPA could not support universal tariffs because the Constitution reserves taxing power to Congress ^[7]. The Court of International Trade said Section 122 could not support them because routine trade deficits are not the kind of emergency the statute contemplates ^[3]. Now the question is whether Section 301 — which does permit tariffs — can support them when the factual findings are, as the challengers argue, too generic to satisfy the law. The challenges are already converging from three directions. The Liberty Justice Center has filed suit in the Court of International Trade arguing the administration is using forced labor as a "pretext" to establish a permanent import tax regime without the country-specific findings the law requires ^[8]. At USTR hearings this month, India argued the investigation lacked a factual basis and failed to prove that Indian laws cause measurable harm to U.S. industry, and South Korea challenged the agency's methodology ^[9]. Brazil went further, accusing the United States of manipulating human rights to serve a trade agenda ^[8].

The U.S. chose to manipulate an issue of great importance to human rights and the struggles of workers worldwide in order to accuse 59 countries and the European Union of unfair practices. — Federal government of Brazil

And the precedent is not favorable. The same Court of International Trade that will hear the Liberty Justice Center case already blocked the Section 122 tariffs for failing to meet a statutory threshold ^[3]. The administration is now asking that court to accept sweeping forced-labor findings applied across 60 economies with vastly different labor practices — findings the challengers describe as generic and unsupported by country-specific evidence. Trump himself described the strategy in May: "We get one ruling, and we do it a different way" ^[3]. The administration has done exactly that — twice. The forced-labor rationale makes this third attempt harder to oppose politically than its predecessors. It does not make it harder to block in court. Those are different problems, and the second one has not gone away.