Lawfare Daily: Trump’s New Global Tariffs and the Court Fights to Come, with Peter Harrell and Jennifer Hillman
Apr 8, 2025
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Peter Harrell, a Lawfare Contributing Editor and former Senior Director for International Economics on the National Security Council, teams up with Jennifer Hillman, a Georgetown Law professor and ex-WTO appellate body member. They dive into Trump's recently imposed global tariffs, discussing their unprecedented nature and the legal battles ahead. The conversation highlights the tariffs' potential to distort trade and the implications of using the International Emergency Economic Powers Act, raising questions about judicial scrutiny and authority.
The Trump administration's new tariffs mark a significant departure from traditional U.S. trade policies, implementing widespread increases on imports to address trade deficits.
The use of the International Emergency Economic Powers Act (IEPA) to enforce these tariffs raises legal questions about its appropriateness and constitutional validity.
Internationally, the tariffs have provoked rapid retaliatory responses from affected countries, threatening to escalate trade tensions and disrupt global economic stability.
Deep dives
Overview of Recent Tariffs Imposed
The new tariffs announced by the Trump administration constitute a significant shift in U.S. trade policy, reflecting a departure from previous practices. This move introduces a 10% universal tariff on imports from all countries, in addition to varying reciprocal tariffs imposed on around 60 nations, calculated to address the U.S. trade deficit. For instance, countries experiencing significant trade imbalances with the U.S., such as Vietnam, now face tariffs as high as 40%, impacting the cost of goods across numerous sectors. The dramatic increase in tariff rates during recent months suggests a pivot towards more isolationist trade practices, positioning the U.S. as a potentially more closed economy compared to global counterparts.
Challenges to Global Trade Agreements
The imposition of these tariffs raises concerns about the United States' commitment to global trade agreements, particularly those under the World Trade Organization (WTO). Traditionally, tariffs have been applied on a Most Favored Nation (MFN) basis, which promotes non-discrimination among trading partners, but this new approach undermines that principle. The U.S. is effectively breaking its tariff commitments by enacting higher rates than previously agreed upon in its WTO schedules, which can lead to retaliatory actions from affected countries. As nations express their discontent, many are considering formal challenges to these tariffs within the WTO framework to reassert their rights and maintain a rules-based trading system.
Legal Vulnerabilities of Tariff Implementation
The legal foundation for using the International Emergency Economic Powers Act (IEPA) to impose tariffs raises several challenges and uncertainties. Critics argue that IEPA was never intended for broad tariff applications, suggesting that its use in this context lacks legitimate grounding and may violate the Constitution, which mandates that Congress holds the exclusive power to tax and set tariffs. The ongoing litigation surrounding these tariffs questions whether a national emergency can justify actions that fundamentally alter established economic practices, especially when considering tariffs on goods unrelated to declared emergencies. Some previous applications of IEPA involved temporary measures during genuine crises, indicating that the current tariffs may not meet such stringent criteria.
Economic Implications of Tariff Policy
The tariffs imposed may have far-reaching economic implications both domestically and internationally, particularly concerning inflation and consumer prices. By raising costs on imports, these tariffs could lead to higher prices for goods in the U.S. market, adversely affecting consumers and potentially harming business operations reliant on imported materials. Furthermore, job creation arguments linked to these tariffs may not hold as the efficiency gains from automation within manufacturing could limit new hiring despite increased domestic production. Economists have noted that the structural elements contributing to the trade deficit are complex and may not be effectively addressed through punitive tariffs alone.
Global Reactions and Potential Retaliation
Internationally, the reaction to the U.S. tariffs has been swift, with countries like China preparing their own retaliatory measures. This includes imposing their own tariffs on U.S. goods and halting exports of critical components needed by U.S. industries. The European Union is also signaling potential responses, which could extend beyond tariffs to include regulatory measures against U.S. businesses operating in Europe. As countries band together in opposition to the U.S. tariff policy, there is a growing risk of escalating trade tensions that could disrupt established global supply chains and economic stability.
For today’s episode, Lawfare General Counsel and Senior Editor Scott R. Anderson sat down with Lawfare Contributing Editor Peter Harrell, who was previously Senior Director for International Economics on the National Security Council, and Professor Jennifer Hillman of the Georgetown University Law Center, a former member of the WTO’s appellate body and senior U.S. trade official, to discuss the new global tariffs that President Trump imposed last week and the legal fight that is beginning to emerge over them.
Together, they discussed how dramatic a break the Trump administration’s policies are from past practice, the logic behind them (or lack thereof), and whether his use of the International Emergency Economic Powers Act (IEEPA) to impose them will really survive judicial scrutiny.
