What the Supreme Court didn’t answer about Trump’s Section 301 tariffs 

When the Supreme Court declined to hear HMTX Industries v. U.S. last month, it appeared to close the book on the legality of President Trump’s first-term Section 301 tariffs against China. But it did not. The court simply declined to answer the question the petition presented. Whether that question was the right one is another matter. 

The challenge centered on a single word in the Trade Act of 1974. Section 307 of the Trade Act authorizes the U.S. Trade Representative to “modify” an existing trade action when circumstances change. HMTX Industries argued that expanding tariffs from approximately $50 billion of Chinese imports to nearly $370 billion was not a mere modification but a transformation.

It was a thoughtful argument. It was also a sound appellate strategy. A certiorari petition fares better when it raises one clean legal issue than when it attacks an entire statutory scheme. 

But sometimes a narrow question leaves the broader issue untouched. By framing the dispute around the meaning of “modify,” the litigation implicitly accepted the government’s characterization of certain listed imports as modifications of the original Section 301 action.

Once that premise was accepted, the case became one of degree. How large may a modification become before it ceases to be a modification? If $370 billion is too much, why not $200 billion, or $100 billion? Neither the statute nor ordinary principles of statutory interpretation provide a principled stopping point. 

The Department of Justice had an answer. China retaliated. Negotiations evolved, and the original tariffs had proven inadequate. Section 307, it argued, exists precisely so that the U.S. Trade Representative........

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