WRONG TARIFFS ARE FOREIGN POLICY; IN CONTRAST, EXECUTIVE BRANCH TARIFFS ARE STATUTORILY EXCLUDED FROM MOST CHECKS AND BALANCES. THIS IS BECAUSE TARIFFS ARE TYPICALLY GOVERNED BY SPECIFIC TRADE STATUTES UNDER WHICH THEY ARE IMPOSED RATHER THAN THE BROADER FRAMEWORK OF ADMINISTRATIVE LAW. FOR EXAMPLE, WHILE MOST REGULATIONS REQUIRE AGENCIES TO FOLLOW THE; ADMINISTRATIVE PROCEDURE ACT (APA), TARIFF CHANGES OCCUR UNDER DIRECT STATUTORY OR PRESIDENTIAL AUTHORITY, BYPASSING APA REQUIREMENTS LIKE JUDICIAL REVIEWS. FURTHERMORE, TARIFFS MAY BE EXEMPT FROM THE PAPERWORK REDUCTION ACT (PRA) AND THE REGULATORY FLEXIBILITY ACT (RFA) BECAUSE THEY ARE NOT TRADITIONAL REGULATORY MEASURES THAT INVOLVE SIGNIFICANT PAPERWORK OR SMALL BUSINESS IMPACTS. IN ADDITION, TARIFFS ARE GENERALLY NOT SUBJECT TO REVIEW BY THE OFFICE OF INFORMATION AND REGULATORY AFFAIRS UNDER EXECUTIVE ORDER 12866. TARIFFS FALL OUTSIDE THE SCOPE OF EO 12866 BECAUSE THEY ARE CONSIDERED INSTRUMENTS OF TRADE POLICY GRANTED BY THE EXECUTIVE BRANCH’S FOREIGN ECONOMIC POLICY POWERS RATHER THAN DOMESTIC REGULATORY MEASURES, WHICH FALL UNDER THE PURVIEW OF EO 12866. LIKEWISE, MOST TARIFFS ARE GENERALLY NOT SUBJECT TO THE CONGRESSIONAL REVIEW ACT (CRA), WHICH MEANS THAT CONGRESS DOES NOT HAVE THE ABILITY TO OVERTURN TARIFFS. FOR EXAMPLE, SECTION 301 TARIFFS ARE IMPLEMENTED BY THE UNITED STATES TRADE REPRESENTATIVE FOLLOWING INVESTIGATIONS INTO UNFAIR TRADE PRACTICES BY FOREIGN COUNTRIES UNDER THE AUTHORITY OF THE TRADE ACT OF 1974. SINCE SECTION 301 TARIFFS ARE CONSIDERED FOREIGN TRADE ACTIONS RATHER THAN TYPICAL DOMESTIC REGULATIONS, THEY DO NOT FALL UNDER THE CRA’S REVIEW PROCESS. INSTEAD OF CONGRESSIONAL OVERSIGHT, CHALLENGES MUST ARISE THROUGH POLITICAL PROCESSES, DIPLOMACY, OR LEGAL DISPUTES IN TRADE COURTS. NOT ONLY DOES THE IMPOSITION OF TARIFFS OPERATE OUTSIDE OF STANDARD CHECKS ON EXECUTIVE AUTHORITY, BUT FEW SAFEGUARDS EXIST WITHIN THE TRADE ACTS THEMSELVES (SEE PACKARD AND LINCICOME, 2024). FOR EXAMPLE, SECTION 232 OF THE TRADE EXPANSION ACT OF 1962 AUTHORIZES THE COMMERCE DEPARTMENT OF INDUSTRY AND SECURITY TO INITIATE INVESTIGATIONS INTO WHETHER CERTAIN IMPORTS THREATEN NATIONAL SECURITY AND, IF SO, THE ACT GRANTS EXPANSIVE AUTHORITY TO THE PRESIDENT TO RESTRICT THOSE IMPORTS WITH LITTLE SUBSTANTIVE OR PROCEDURAL CHECKS ON THIS AUTHORITY. LIKEWISE, SECTION 301 OF THE TRADE ACT OF 1974 AUTHORIZES THE U.S. TRADE REPRESENTATIVE (USTR) TO INVESTIGATE AND REMEDY “UNFAIR” FOREIGN TRADE PRACTICES, INCLUDING THROUGH THE USE OF COUNTRY-SPECIFIC TARIFFS. ALTHOUGH SECTION 301 REQUIRES THAT THE USTR REQUEST WHAT MAY BE PERFUNCTORY CONSULTATIONS WITH THE FOREIGN COUNTRY ACCUSED OF UNFAIR TRADE PRACTICES, THE DURATION OF THE REMEDY IS OPEN-ENDED.
