The Lawfare Podcast – Lawfare Archive: Trump’s Tariffs and the Law

Date: February 28, 2026
Host: Scott R. Anderson
Guests: Kathleen Claussen (Professor of Law, Georgetown Law Center) and Peter Harrell (Contributing Editor at Lawfare, Fellow at Carnegie Endowment)

Episode Overview

This episode revisits a February 2025 discussion between host Scott R. Anderson, Kathleen Claussen, and Peter Harrell on the resurgence and legal implications of President Trump’s sweeping tariffs during the early weeks of his second term. With a rapid succession of new tariffs based on a mix of traditional and emergency authorities, the episode explores whether these actions rest on solid legal footing, how they differ from previous U.S. trade policy, the risks of judicial and international pushback, and what flashpoints to expect in the evolving landscape of U.S. tariffs.

Key Discussion Points & Insights

1. The Acceleration and Expansion of Trump-Era Tariffs

Timestamps: 03:17–08:43

• Scott R. Anderson outlines a timeline of major tariff actions within Trump’s first month (colloquially referred to as "Trump 2.0"), including threats and impositions against Colombia, Canada, Mexico, and China, as well as broad-based product tariffs.
• Peter Harrell notes a marked acceleration compared to Trump’s first term, with tariffs imposed faster, at higher rates, and targeting more countries and products:

  “He did run for a second term promising that he would be even more of a tariff man, calling ‘tariff the most beautiful word’ in the English language ... all signs point toward really substantially more tariffs than we saw in first term.” (05:36)

• This shift represents a dramatic break from the previous three decades' trajectory of lowering trade barriers.

2. The Dormant Legal Authorities Powering U.S. Tariff Policy

Timestamps: 08:43–14:10

• Kathleen Claussen explains that many of the authorities Trump is invoking—most of which date to the Cold War—were designed for incremental, temporary protection and have long lain dormant.

  “We're talking about several different delegations of authority from Congress to give the President the power to raise tariffs when the national interest or national security so require ... now coming back with a vengeance.” (09:37)

• Different statutes (e.g., Section 232 of the Trade Expansion Act, Section 301 of the Trade Act of 1974) offer the president specific, often conditional powers to impose tariffs.

3. The Use—and Abuses—of the International Emergency Economic Powers Act (IEEPA)

Timestamps: 14:10–22:54

• Scott R. Anderson and Peter Harrell discuss why Trump prefers IEEPA over traditional statutory authorities:
  • IEEPA historically enabled emergency sanctions but is now stretched to justify tariffs, bypassing procedural hurdles like agency investigations and notice-and-comment.
  • Harrell argues this is both novel and risky:

    “A, IEEPA has never been used for tariffs and B, I think there are reasons in the statute’s history and structure that mean IEEPA does not grant the President tariff authority ... I think it should be read not to include a grant of tariff authority.” (15:09)

• Using IEEPA allows tariffs based on a presidential emergency declaration alone, raising legal questions regarding congressional intent and separation of powers.

4. Why Tariffs, Not Other Economic Tools?

Timestamps: 20:10–22:54

• Harrell and Claussen posit that Trump sees tariffs as dual-use: leverage for negotiations or, failing that, revenue for U.S. coffers.

  "Either the tariff provides him leverage and the foreign counterparty caves ... or if it doesn’t ... he gets tariff revenue. And we know he’s interested in tariff revenue." (02:49 repeated at 20:55)

• Trump also believes tariffs look tougher and reach wider swathes of trade than sanctions.

5. The Prospects of Judicial Pushback

Timestamps: 31:57–36:20

• Past challenges to tariffs, especially those justified by national security, almost always favor the government.

  "The government almost always wins these cases, whether we're talking about the three digits or whether we're talking about even IEEPA..." — Kathleen Claussen (33:14)

• Plaintiffs are waiting for the “strongest possible case,” often after tariffs fully take effect. Procedural missteps by agencies have occasionally provided successful grounds for challenge.
• Litigation may be slow and a weak deterrent; courts have accepted the executive branch’s arguments when tied to national security or emergencies.

6. International Challenges and Retaliation

Timestamps: 37:49–41:30

• China and other affected countries are initiating WTO proceedings and considering retaliation, though the WTO appellate system is hamstrung by U.S. noncooperation.

  "Canada and Mexico also threatened to bring WTO proceedings ... [but] it’s almost symbolic," — Claussen (38:35)

• Retaliation often targets politically sensitive U.S. industries or individuals close to the administration.

7. Corporate and Congressional Responses

Timestamps: 41:30–46:57

• Peter Harrell: Companies are in “wait and see” mode, uncertain of long-term stakes and whether production shifts are justified.
• Big corporations may accept mild tariffs as a cost of business, while smaller firms are harder hit. Many companies step up consumer communications on price hikes:

  “They're also obviously lobbying on the back end in ways that we cannot see ... the consumer is now increasingly informed and that's one way to do it.” — Claussen (46:57)

• Congress: While some lawmakers express discomfort about ceding so much power, few have yet acted. Legislative solutions would be hard to pass over a presidential veto.

8. Flashpoints to Watch

Timestamps: 51:12–53:50

• Kathleen Claussen: Watch pending investigations—deadlines in March and April will determine if tariffs expand or escalate.
• Peter Harrell: Will the administration develop a coherent tariff strategy, or continue opportunistic, piecemeal actions?

  "What I'm really looking for is do we ... see these actions kind of emerge into a coherent theory, or is this ultimately just going to be ... country by country actions and ordeals..." (52:29)

Notable Quotes & Memorable Moments

• Harrell on the “doubling down” of tariff policy:

  "We are seeing tariffs that are much more extensive both in the number of countries targeted and in terms of the product set." (06:50)

• Claussen on dormant legal tools:

  "These [authorities] have been dormant. They really haven't been used ... now coming back with a vengeance." (09:37)

• Harrell’s take on the legal risks of IEEPA tariffs:

  "IEEPA has never been used for tariffs ... I don't think Congress intended it as a grant of tariff authority." (15:09)

• On judicial review:

  "The government almost always wins these cases ... the domination of security related arguments by the Justice Department ... courts have accepted." (33:14)

Important Segment Timestamps

• 04:00–05:35: Major new tariffs and threats in Trump’s second term.
• 07:00–09:37: Historical context for new direction in U.S. tariff policy.
• 11:40–14:10: Overview of specific statutory authorities (Sections 232 & 301).
• 15:09–20:10: Deep dive on why Trump uses IEEPA for tariff measures.
• 22:54–24:54: Revenue versus leverage: The administration’s goals.
• 31:57–36:20: Barriers to legal challenge and odds of judicial success.
• 41:30–46:57: International retaliation, corporate reactions, Congressional inaction.
• 51:12–53:50: Predictions and flashpoints to watch in upcoming months.

Summary Takeaways

• President Trump’s second term marks a drastic acceleration and broadening of tariff actions, both in scope and speed.
• Many tariff authorities invoked had been largely unused in modern U.S. history; their revival is both legally and politically significant.
• The administration’s shift to emergency powers like IEEPA is motivated by a desire for unfettered executive action but faces uncertain legal standing and considerable litigation risk.
• International responses, symbolic and practical, are already underway, but systemic weaknesses in global trade adjudication blunt immediate impacts.
• Corporations and Congress are responding warily; much depends on whether these tariffs solidify into durable policy or prompt sufficient opposition to change course.
• Key flashpoints in the months ahead revolve around the outcomes of pending investigations, possible congressional pushback, and whether the administration’s tariff strategy becomes more coordinated or remains reactive.