Alan Wolff has a grievance with the administration, and it is a personal one. He wrote the law the White House is now using, and he says the White House is using it wrong. Wolff served as the Nixon administration’s lead international trade lawyer and drafted what became Section 301 of the 1974 Trade Act, the statute behind President Donald Trump’s latest round of tariffs. “I have a sense of ownership of the statute,” he told CNN. “I have a long history with it. And it’s being misused.”
The argument will be tested on September 30, when the Court of International Trade hears a challenge to Trump’s tariff strategy. The plaintiff is the Liberty Justice Center, which sued the administration before and won: in February the Supreme Court ruled that the president had no authority to use emergency powers to enact tariffs. This time the center’s case is that Trump claims a power Section 301 never gave him, the power its drafter says it never gave him.
The circumstances of the drafting matter, Wolff argues. In the Nixon years, the White House found itself unable to answer surging competition from Japan, above all in electronics, while American firms struggled to sell into Japan. The existing tool for retaliation, Section 252 of the Trade Expansion Act of 1962, covered only farm goods. So the administration and Congress wrote a new one: the president could investigate a country for anticompetitive behaviour and strike back at that country to force it to the table. It worked. The law eventually allowed 100% tariffs on Japanese electronics, and the dispute ended in a significant trade agreement.
The point, Wolff says, is in the grammar. The statute says “foreign country,” singular, where other laws covering multilateral dealings speak of countries in the plural. The authority was meant for one trade action against one nation. “The notion that you can write your own tariff against anyone and anybody is offensive,” he said. “This isn’t what we intended.”
Yet that is what the administration has done. After the Supreme Court collapsed its tariff regime, officials looked for a new legal footing and settled on Section 301, arguing that because the statute sets no time limit and no ceiling on tariff rates, it gives the president free rein against any country the White House judges to have disadvantaged American trade. In June, US Trade Representative Jamieson Greer published a 98-page report from a monthslong investigation into trading partners’ policies on goods made with forced labor. After a public comment period, the USTR ruled in July that dozens of countries directly or indirectly supported forced labor, and Trump punished them with tariffs of 10% to 12.5% on more than 60 nations.
Wolff finds the construction telling. “The USTR sort of bundled together 60 countries, created a unique standard that no country could or did meet and said that we’re retaliating against something and acting unilaterally against something we’ve had no interest in historically,” he said. “Congress doesn’t just give wholesale authority to the executive branch – and it didn’t in this case.”
The Liberty Justice Center believes this case may prove easier than the last one. The administration has said openly that the Section 301 investigation was meant to restore the universal tariffs it lost, and its actions match. Right after the Supreme Court ruling, Trump imposed a universal 10% tariff under Section 122 of the 1974 act; when those tariffs expired five months later, the Section 301 tariffs took their place. “It’s clearly showing a pretextual basis for the tariffs,” said Sara Albrecht, the center’s CEO. “It’s like: ‘duh.’ I don’t know how many statements we’ve collected from the administration, but every time they speak about this, we put it in a brief.”
Wolff has not stood aside. He, former US Trade Representative Carla Hills, who served under George H.W. Bush, and Warren Maruyama, general counsel to Ronald Reagan’s trade representative, filed a friend-of-the-court brief this month for the Liberty Justice Center. They argue the forced-labor allegations are spurious, that the required investigations were inadequate if carried out at all, and that the tariffs were not designed to push countries into ending the practices to win relief. “The resulting tariffs should be set aside as contrary to law and arbitrary and capricious,” they wrote.
Wolff adds a point the tariff-makers may find uncomfortable. If forced labor were truly the target, the president can simply ban trade with the offending countries outright, an authority he already holds. That, Wolff says, is why Section 301 was written without a rate ceiling. “You don’t need to have an upper limit if you can also have a ban,” he said. “It never occurred to us. It was designed to force agreements. And it worked.”
The administration, meanwhile, has been busy. It has used the same Section 301 authority to raise tariffs on Brazil to 37.5%, citing a history of human rights abuses. Against Canada it has gone further back into the statute books, raising tariffs on selected goods to 50% under Section 338 of the Tariff Act of 1930, a power never used before. Greer’s office is also investigating more than a dozen countries for excess manufacturing capacity.
Wolff’s worry is the obvious one: strike down Section 301, and the White House will find another clause somewhere. “That certainly worries me,” he said. “But the only thing you can do in response? You fight back.”