NEW YORK (AP) 鈥� The Trump administration has imposed , using a legal justification that permits the president to levy import taxes and other sanctions against countries found to engage in 鈥渦njustifiable,鈥� 鈥渦nreasonable鈥� or 鈥渄iscriminatory鈥� trade practices.
The new tariffs announced in recent days take effect just as , and critics say they are less about cracking down on forced labor than they are a way to replace those tariffs. The expired tariffs were themselves a temporary replacement for worldwide tariffs the Supreme Court struck down in February.
The tariffs were levied on countries that the U.S. says either don’t have or don’t effectively enforce a forced-labor import ban. , which account for 99% of U.S. imports, were quick to protest, calling the Trump administration’s claims unfounded and arbitrary, as nations with vastly different records on forced labor received the same tariff level. The U.S. spent four months investigating but gave few details on how it arrived at the tariff rates, which are either 10% or 12.5%.
Sidestepping Congress
The tariffs were levied under on countries that the U.S. determined had failed 鈥渢o impose and effectively enforce a prohibition on the importation of goods produced with forced labor.鈥�
During ‘s first term, he cited Section 301 on Chinese imports amid a dispute over the sharp-elbowed tactics Beijing was using to challenge America鈥檚 technological dominance. The U.S. is also using 301 powers to counter what it calls unfair Chinese practices in the shipbuilding industry.
鈥淭he 301s allow a permanent tariff without going to Congress to settle the dispute,鈥� said Barry Appleton, a law professor and co-director of New York Law School鈥檚 Center for International Law. 鈥淭hat鈥檚 what all of this is about. The president doesn鈥檛 want to knock on the front door of Congress, so he鈥檚 trying every side door and every unlatched window to get in.鈥�
Little evidence that countries failed to enforce import bans
The office of the United States Trade Representative (USTR) said it consulted with all 60 economies under investigation and held two rounds of public hearings, elicited more than 2,100 public comments, and had 鈥渆ngagement鈥� with its trading partners about what they were doing to combat forced labor bans.
It didn’t detail its talks with the countries, saying those were confidential. Experts say it is fairly straightforward to investigate whether a country has a ban or not, but it is difficult to determine the government’s exact rationale for each country’s failure to enforce import bans.
鈥淭here鈥檚 not a lot of hard evidence there,鈥� said Scott Lincicome, vice president for general economics and trade policy at the Cato Institute, a libertarian think tank. 鈥淚t鈥檚 pretty laughable on its face to think that a country like the ones in Europe or in Norway or Switzerland aren鈥檛 doing enough to police forced labor.鈥�
And even if countries do enact and enforce the forced-labor import bans the U.S. wants, they would still need to prove that they鈥檙e enforcing them to Washington鈥檚 satisfaction before the tariffs would be removed, said lawyer Patrick Childress, a partner at Holland & Knight and a former U.S. trade official.
鈥淭his suggests that no short-term path for countrywide relief from the new Section 301 tariffs will be available,鈥� he said.
Countries and industries reject the forced labor argument
Many countries have pushed back against the Trump administration’s findings.
Brazil, which faces a 12.5% forced-labor tariff, called the U.S. move 鈥渁rbitrary and unjustified.鈥� The U.S. 鈥渃hose to manipulate an issue of great importance to human rights and the struggles of workers worldwide in order to accuse 59 countries and the European Union of unfair practices,鈥� it said in a statement.
Australia also questioned the justification for its 12.5% tariff.
鈥淲e believe that amongst all of the countries in the world, Australia does take the issue of slavery, modern slavery, seriously, and will continue to do that,鈥� Trade Minister Don Farrell told reporters in Adelaide.
Carve-outs have riled some industries. The National Council of Textile Organizations (NCTO), which describes itself as the voice of the American textile industry, protested a mechanism that exempts the Section 301 tariffs for textile and apparel imports from Bangladesh, Cambodia, Indonesia, and Malaysia based on those countries鈥� imports of U.S. cotton and textiles.
鈥淣o other industry has been more disadvantaged by forced labor than the U.S. textile industry, which employs 453,000 workers and has lost 41 plants over the past two plus years,鈥� NCTO chief executive Kim Glas said in a statement. 鈥淲e remain strongly concerned that USTR鈥檚 textile mechanism will harm the very domestic manufacturers the administration seeks to help.鈥�
US forced-labor bans don’t always work
The U.S. has two major pieces of legislation related to forced-labor import bans. The Tariff Act of 1930 gave Customs and Border Protection the authority to seize shipments where forced labor was suspected and to block further imports. But it had a big carve-out: If there was 鈥渃onsumptive demand,鈥� meaning there wasn’t sufficient supply to meet domestic demand, imports were allowed regardless of how they were produced. The Trade Facilitation and Trade Enforcement Act that took effect in 2016 eliminated that loophole.
In 2021, was passed. It unless businesses can prove the items were made without forced labor.
But goods made with forced labor can still make it into the U.S. found that slave labor was used in the fishing industry in Southeast Asia. The seafood they caught made its way to supermarkets and pet food providers across the U.S.
An by The Associated Press in 2020 into the $65 billion palm oil industry found labor abuses among an invisible workforce consisting of millions of men, women and children in Asia. The fruit they harvested made its way into the supply chains of major companies, including Unilever, L鈥橭real, Nestle and Procter & Gamble.
Calls for a more comprehensive approach to combat forced labor
During hearings on the tariffs this month, National Retail Federation vice president Jonathan Gold, who was representing the business coalition the Joint Association Forced Labor Working Group at the hearing, said that in order for the import bans to work, they would have to be much more extensive.
He said there need to be 鈥渃lear, measurable benchmarks鈥� tied to tariffs for countries to hit, and that the U.S. should help countries build enforcement programs.
Kenya Davis, a partner at the Boies Schiller Flexner law firm, said an effective ban needs a 鈥渃omprehensive approach鈥� that provides transparency about what the investigations consisted of, along with programs that provide countries aid in enforcing bans.
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