Trade Expert Speculates Biden Wouldn’t Appeal Loss in Section 301 Litigation

Katherine Tai, President Joe Biden’s nominee for U.S. trade representative, enjoys broad bipartisan support in Congress through her work as a U.S.-Mexico-Canada Agreement negotiator as House Ways and Means chief trade counsel, said Nicole Bivens Collinson, Sandler Travis president-international trade and government relations, at a Sports & Fitness Industry Association webinar Tuesday. If all goes as well as expected with her confirmation process Tai could be sworn in as USTR as soon as March 8, said Collinson. At Tai’s Senate Finance Committee confirmation hearing Thursday, she will be asked "many questions" about the Biden administration’s posture toward the Section 301 tariffs on China, said Collinson. The new administration has shown it’s “not moving anytime soon to remove those tariffs,” she said, and it’s possible Tai, as USTR, will “restart” the tariff exclusion process. Most of the remaining exemptions expired Dec. 31, except for COVID-19-related exclusions, which are scheduled to lapse next month. “We know there’s a strong push” in Congress and the business community to reinstate the exclusions and extend previously expired exemptions, she said. If the administration decides to do neither, “they could wait to see what happens” with the massive Section 301 litigation at the U.S. Court of International Trade, she said. “It’s very possible” the court’s three-judge panel could render an opinion by September or October, Collinson said. “They could come out and say these tariffs did exceed the statutory authority, and therefore they are illegal.” There’s speculation the administration won’t appeal the opinion to the Supreme Court if the plaintiffs prevail, she said. “This could be an easy way for the Biden administration to say we’re going to remove the tariffs because the courts have ruled the previous administration exceeded its statutory authority." Though Collinson isn't a lawyer, Sandler Travis has several attorneys representing importer plaintiffs in various Section 301 cases, the litigation’s docket report (in Pacer) shows. The White House didn’t comment.