Lawyer Dubs High-Profile Section 301 Litigation Argument 'Illogical'

Litigants challenging lists 3 and 4A Section 301 tariffs have a “difficult hill to climb” in making a compelling case for why the tariffs should be lifted, a lawyer said. Speaking March 11 on a panel at Georgetown Law's 2021 International Trade Update on the courts' role in tariffs, Bradford Ward of King & Spalding called out the central claim used by one of the litigants: that the law does not permit the Office of the U.S. Trade Representative to increase tariffs, only to “delay, taper or terminate such actions.” In the same provision of that law, modification of tariffs is authorized when the burden on U.S. commerce has increased or decreased, meaning the agency can increase or decrease tariffs, said Ward, who used to work at USTR and now represents domestic industry. “It would be illogical, from my perspective, for the statute to prohibit an increase in tariffs while recognizing the ability of USTR to modify via an increase in the burden. It doesn't seem coherent,” Ward said.

Ward said he doubts the litigants' other arguments will succeed. He also has doubts regarding the claims that the expansion of the Section 301 tariffs on China goods to lists 3 and 4A violated the Administrative Procedure Act on procedural missteps. The APA claims “may not be seen as particularly compelling given the discretion the statute affords the president, other decisions talking about that discretion in this kind of trade space and the fact that there were multiple rounds of comments and opportunity for rebuttal in these 301 exclusions,” Ward said.