Trump's Section 301 Tariffs Face Legal Challenge as Administration Rebuilds After Supreme Court Loss

Since the Supreme Court invalidated many of Trump's IEEPA-based tariffs on February 20, 2026, the administration has been rebuilding its trade enforcement architecture on a different statutory foundation. Legal challenges are already taking shape.

On June 2, 2026, the U.S. Trade Representative issued a proposal to impose new tariffs on 60 trade partners. The legal authority this time is Section 301 of the Trade Act of 1974, not the International Emergency Economic Powers Act that the Court rejected.

Treasury Secretary Scott Bessent was direct about the strategy. In a press interview after the Supreme Court loss, he said he expected "the tariff rates will be back to their old rate within five months," acknowledging the administration would need to use "more complicated authorities" going forward. That five-month window closes around late July 2026.

Why Section 301 Is a Stronger Starting Point

Peter Harrell, Visiting Scholar at Georgetown's Institute for International Economic Law and a private practice trade attorney, published a detailed legal analysis on the Section 301 tariffs through the Volokh Conspiracy blog hosted at Reason. Harrell played a direct role in developing arguments that led to the IEEPA tariff invalidation.

His core point is straightforward: Section 301 is a more defensible legal vehicle than IEEPA. Unlike IEEPA, which does not contain the words "tariff" or "duty," Section 301 explicitly authorizes USTR to investigate unfair foreign trade practices and impose tariffs in specific circumstances. Courts have upheld Section 301 tariffs before. Presidents have used it repeatedly.

The administration is not operating in a legal vacuum here.

Where Legal Scholars See New Vulnerabilities

Harrell argues that Section 301's stronger textual footing does not put it beyond judicial reach. His analysis, described by George Mason University law professor Ilya Somin, who helped litigate the IEEPA case, as "the most thorough and insightful analysis of the Section 301 tariffs to date," identifies multiple procedural and substantive constraints in the statute that the current proposal may not satisfy.

Somin, writing in his own capacity alongside the Harrell guest post, adds a dimension Harrell treats as less promising: a constitutional nondelegation argument. The Supreme Court's decision in FCC v. Consumers' Research, decided last year, established constraints on how Congress can delegate tax power to the executive branch. Somin argues those constraints matter here specifically because the administration's approach to Section 301 appears to have no meaningful floor or ceiling on tariff magnitude.

Under Consumers' Research, Somin argues that kind of open-ended delegation is constitutionally suspect. The practical implication: even if Section 301 clearly authorizes some tariffs, it may not authorize tariffs of any size the executive chooses to impose.

The Procedural Track Matters Too

Section 301 is not a blank check. The statute requires USTR to conduct an investigation, make findings about unjustified or unfair trade practices, and justify the scope of any remedy against those findings. Whether the June 2 proposal clears those procedural hurdles on the merits is a separate question from the constitutional one, and one that courts can evaluate without touching nondelegation doctrine at all.

Harrell's analysis addresses both tracks. That dual-path litigation structure, statutory compliance arguments paired with constitutional claims held in reserve, mirrors the approach that succeeded against the IEEPA tariffs.

What the Opposition Gets Right

The administration's defenders make a reasonable point that the legal attacks on Trump tariffs, broadly, are motivated at least partly by free-trade ideology dressed up as constitutional law. Courts have historically given the executive branch wide deference on trade and national security questions. And Congress has never moved to claw back Section 301 authority, which could be read as tacit ratification of broad executive use.

That argument has real weight. Federal courts do not routinely second-guess trade policy, and the Supreme Court's IEEPA ruling was narrow enough that it did not signal open season on all executive tariff authority.

The counterpoint, though, is that Consumers' Research is a genuine doctrinal development, not a progressive litigation invention, and it came from a conservative-majority Court. If the nondelegation constraint Somin identifies is real, it applies regardless of which administration is imposing tariffs or what trade policy goal they are pursuing.

What Comes Next

The USTR proposal issued June 2 is still in its proposed stage as of June 14, 2026. Harrell's and Somin's analyses are laying the intellectual groundwork for litigation before final rules take effect. The specific open question that will drive the next round of court filings: whether Section 301 contains, or can be read to contain, the kind of "intelligible principle" limiting tariff magnitude that Consumers' Research now appears to require. Courts have not yet answered that question directly in the post-Consumers' Research framework.