The Lawfare Podcast · The Lawfare Institute

Lawfare Archive: Trump’s Tariffs and the Law

February 28, 2026·46 min·4 clips

Peter Harrell contends that Trump's use of IEPA for tariffs is legally dubious and could lead to major court challenges.

Host Marissa Wong introduces this archive episode by noting the Supreme Court's February 2026 decision in Learning Resources v. Trump, which struck down IEPA-based tariffs like the fentanyl and reciprocal tariffs while leaving tariffs grounded in other statutes standing. The original February 2025 conversation features Scott Anderson interviewing Georgetown law professor Kathleen Clausen and Lawfare contributing editor Peter Harrell. Harrell begins by placing Trump's second-term tariff actions in context: during his first term, tariffs on roughly two-thirds of Chinese imports took a year and a half to implement, whereas in term two, a 10% tariff on China was imposed within weeks using IEPA. The hosts catalog the first month's actions: IEPA tariffs on Canada, Mexico, and China tied to fentanyl emergencies; expanded Section 232 tariffs on steel and aluminum at 25% with all country exemptions eliminated; requests for reciprocal tariff recommendations due April 1; and announced tariffs on automobiles, semiconductors, and pharmaceuticals. Clausen explains the traditional tariff authorities -- Section 232 of the Trade Expansion Act of 1962 requires a national security threat finding, while Section 301 of the Trade Act of 1974 addresses unreasonable or discriminatory foreign trade practices. Both require agency-led investigations and public comment periods. Harrell argues IEPA was chosen specifically to bypass these procedural requirements, since it only needs a presidential emergency declaration. He notes IEPA has been used over 60 times since 1977 but always for sanctions, never tariffs, and he personally argued the statute does not grant tariff authority based on its emergency origins and legislative history. The discussion covers why major importers and trade associations were delaying legal challenges: courts have historically sided with the executive branch on trade actions, and potential plaintiffs wanted to wait for the strongest possible case, likely a Canada tariff challenge. Clausen notes that where companies have succeeded in court, it has been on procedural missteps rather than substantive challenges to presidential authority. On the international front, China filed a WTO dispute consultation on February 5, but the broken appellate body means cases cannot reach completion. Canada and Mexico threatened both WTO and USMCA proceedings. Foreign retaliation has followed historical patterns of targeting politically sensitive sectors; during Trump's first term, the EU hit bourbon and Harley-Davidson motorcycles to pressure Republican leaders. New in this round is personally targeted retaliation, with Canadian leaders discussing actions against Tesla to pressure Elon Musk. Harrell explains Trump's preference for tariffs over sanctions: tariffs offer a perceived win-win where either the target concedes or the U.S. collects revenue, whereas failed sanctions yield nothing. The episode closes with discussion of Congress's notable silence, despite having constitutional authority over trade, with both parties largely holding their fire on early Trump trade moves.

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