Since the first half of the twentieth century, the U.S. Congress has increasingly delegated its authority over tariffs to the U.S. president. Some of these statutes permit private actors to petition for tariff relief. Some also permit the president to initiate an investigation and subsequently to take trade-related or other action when certain criteria are met. Since the 1990s, however, a robust multilateral trading system has required the United States and others to resolve disputes over trade measures in Geneva, rather than through unilateral policy steps under these tariff authorities. In a stark departure from this movement away from unilateral action, the Trump Administration has returned to relying heavily on domestic statutes to impose tariffs on goods imported from U.S. trading partners and on those from one country in particular: China. The primary statute the Trump Administration has used for this purpose is Section 301 of the Trade Act of 1974 (hereinafter “Section 301”).2 Section 301 permits the president to impose tariffs or take other measures when the U.S. Trade Representative (USTR) determines that an act, policy, or practice of a foreign country is unreasonable or discriminatory and burdens or restricts U.S. commerce.3 This essay first describes the history of Section 301, the widespread criticism surrounding it, and its application by the Trump Administration. The essay then analyzes three normative questions underlying the present situation that, if resolved, may help the United States, China, and their trading partners address their grievances while preserving a multilateral rules-based trade law order.
ASJC Scopus subject areas