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Biden Administration Defends Trump-Era 301 Tariffs

Mar. 29, 2021
By: Michael N. Coopersmith


The Justice Department, in its first substantive response to a wave of complaints, recently defended Trump administration Section 301 tariffs stating that in general a president’s trade policy through the U.S. trade representative (USTR) is to be afforded substantial deference, and that “the Court should not interpose because there was no clear misconstruction of a governing statute, significant procedural violation, or action outside delegated authority.” Over 3700 lawsuits challenging the tariffs have been filed at the U.S. Court of International Trade (CIT) in recent months, as importers have claimed the Trump administration illegally increased the number of Chinese goods subject to duties under Section 301 of the U.S. Trade Act of 1974, and that that president’s own statements and tweets discredited the administration’s official justification of its actions. This represents an exponential increase the typical number of cases filed at the CIT in a typical year.

The response was submitted following a Court directive ordering the Government to submit a “master answer” which incorporates defenses in law or fact to claims made in the above-mentioned Section 301 challenges. While the answer largely avoided directly responding to any specific allegations, simply stating in response to all allegations that it “admits to the extent supported by the cited notice and the administrative record, which are the best evidence of their contents; otherwise denies,” the response also laid forth a series of anticipated defenses that covered a variety of scenarios.

In part, the anticipated defense section of the response stated that the USTR was acting at the direction of the President when promulgating tariff list 3 and 4, that the President is not subject to the Administrative Procedure Act (APA), and that review of the President’s discretionary decisions, along with the USTR’s implementation of those decisions, present a non-justiciable political question. According to the Justice Department, the USTR, when acting at the direction of former President Trump, possessed the authority under Section 307 of the Trade Act to promulgate List 3 and List 4.

While much of the anticipated defense assume that the actions in question did not constitute agency action, it is argued by the Justice Department that even if the challenged actions are found to constitute agency action, such actions are exempt from the APA’s informal rulemaking requirements because they qualify for the foreign affairs function exception. Seemingly covering all bases, it is additionally argued that even if the APA’s informal rulemaking requirements are found to apply, the USTR’s actions in promulgating List 3 and List 4 complied with all statutory requirements, and that such actions were not arbitrary and capricious, contrary to law, or in excess of statutory authority.

While the ultimate outcome remains uncertain, the response has made clear that while although the Biden Administration has been happy break with its predecessor on a variety of topics, it has no intention of abandoning Trump-era 301 tariffs any time soon. If you have any questions or would like more information about the ongoing Section 301 litigation do not hesitate to contact an attorney at Barnes, Richardson & Colburn LLP.