Trump’s Section 122 Scam: Billions in Tariffs on a Law That’s Been Dead Since 1971

Trump’s tariff regime has been declared totally unconstitutional by the Supreme Court, yet he immediately replaced it with new tariffs under Section 122 of the Trade Act of 1974—a justification that is plainly invalid and one he cannot even explain when confronted.

Section 122 of the Trade Act of 1974 lets the President impose a temporary 15 percent import surcharge for up to 150 days only when there is a “fundamental international payments problem,” specifically a large and serious United States balance-of-payments deficit, an imminent dollar crash in foreign markets, or an international payments disequilibrium that needs fixing. That language was written in the early 1970s for the old fixed-exchange-rate world under Bretton Woods. Once those rates floated freely after 1971, the crisis the statute targeted simply vanished. Under those rules, the international balance of payments is simply not a problem and is generally acknowledged as such. Even Trump’s own lawyers admitted months ago in court filings that Section 122 has “no obvious application” to ordinary trade deficits. This is not a close call; it is an intentional stretch of a never-used provision the Supreme Court just forced him to swap in after striking down his earlier IEEPA tariffs.

Tariffs are taxes on American buyers and businesses, they raise costs across the supply chain, and they distort free markets exactly the way I have warned for decades. Justifying hundreds of billions in extra costs on companies and consumers with a rule that has been dead letter for fifty years is not clever policy—it is abuse of power that threatens the separation of powers and the rule of law. Courts are already hearing challenges; they should kill this fast. Congress needs to step up, repeal or rewrite these outdated tools, and stop letting any president—Republican or Democrat—play fast and loose with our economy. Limited government and real free markets demand nothing less.