The lawyers and officials who wrote Section 301 of the Trade Act of 1974, and who ran it for the better part of three decades, have told the US Court of International Trade that the statute was never designed to carry a worldwide tariff. In two amicus briefs filed on September 10 and September 11 and announced by the Liberty Justice Center on September 14, 2026, former US Trade Representative Carla A. Hills, former WTO deputy director-general Alan Wm. Wolff, former USTR general counsel Warren Maruyama and former Assistant USTR Ed Gresser urged a three-judge panel to set aside the forced-labor tariffs that have applied to goods from 60 economies since July 24.
The timing matters for retailers and importers more than the names. The government’s consolidated defense of the tariffs is due September 15, and the court has scheduled oral argument for September 30, according to Inside U.S. Trade and MLex. Every entry filed since July 24 carries a 10 percent or 12.5 percent surcharge that a ruling could later order refunded, and the amici are now arguing, on the record, that the duties are a “thinly disguised pretext” for reimposing tariffs the Supreme Court already struck down.
In short
- Who filed: Ambassadors Alan Wm. Wolff and Carla A. Hills with Warren Maruyama (one brief, docketed September 10), and Ed Gresser with the Progressive Policy Institute (a second brief, docketed September 11), all supporting the plaintiffs in In re Section 301 Forced Labor Cases, Court No. 26-cv-03555-3JP.
- What they argue: Section 301 is a selective, country-by-country negotiating tool, not a global tariff authority; USTR never showed that any of the 60 economies actually burdens US commerce; the duties mirror the IEEPA and Section 122 tariffs that courts already voided.
- What is at stake: duties of 10 percent or 12.5 percent on imports covering 99.4 percent of US goods trade, which the Gresser brief estimates will cost American buyers roughly $100 billion a year.
- Next dates: government’s consolidated response September 15; oral argument before Judges Choe-Groves, Reif and Wang on September 30; the states’ answer date in the parallel docket is October 2.
- For retailers: duties keep accruing during the litigation, and refund eligibility will depend on entry-level paperwork decisions made now, as the IEEPA refund process has already demonstrated.
Who are the amici and why does their history matter?
Amicus briefs are filed by non-parties who claim relevant expertise. In most tariff litigation that means trade associations or economists. This filing is unusual because the amici are the statute’s own authors and administrators, a point the Liberty Justice Center made the centerpiece of its September 14 announcement.
Alan Wm. Wolff drafted the initial proposal that became Section 301 while serving as the Treasury Department’s lead international trade lawyer, and then served as the principal administration draftsman of the Trade Act of 1974 for the Nixon and Ford administrations during its passage through Congress, according to the press release. He went on to become deputy special trade representative and, more recently, deputy director-general of the World Trade Organization.
Carla A. Hills administered Section 301 as US Trade Representative under President George H.W. Bush, overseeing actions that included the US–Japan Semiconductor Agreements. Warren Maruyama, a former USTR general counsel, helped draft the 1984 and 1988 revisions to US trade law and participated in Section 301 actions across several administrations. The three filed a single brief as “Former U.S. Trade Officials.”
Ed Gresser, now vice president of the Progressive Policy Institute, was Assistant US Trade Representative for Policy and Economics, where he ran the agency’s economic research and trade data and chaired the interagency Trade Policy Staff Committee. His separate brief, filed with the institute through counsel at Husch Blackwell, attacks the factual record rather than the statute’s structure.
“The people who know Section 301 best are telling the Court that this is not what Congress designed it to do,” Sara Albrecht, chairman and CEO of the Liberty Justice Center, said in the statement. “Section 301 is an important trade-remedy law, but it is not a blank check for worldwide tariffs or a substitute for the IEEPA tariffs the Supreme Court struck down.”
What do the forced-labor tariffs actually cover?
The duties under challenge came out of a set of Section 301 investigations that USTR opened on March 12, 2026 into 59 countries plus the European Union. The stated basis was each economy’s failure to impose and effectively enforce a prohibition on importing goods produced with forced labor. USTR issued its findings in a June 2 report, proposed rates on the same day, published the proposal in the Federal Register on June 5, and announced final action on July 23. The duties took effect at 12:01 a.m. on July 24, 2026 and were published at 91 Fed. Reg. 47,318.
According to the Gresser brief, the final determination imposes 12.5 percent above most-favored-nation rates on goods from 41 of the 60 economies, 10 percent above MFN on goods from 17 economies, and a flat 10 percent on two. The 60 economies together supplied about 99 percent of US imported goods in 2025, and the Liberty Justice Center puts the coverage at 99.4 percent of total imports.
For a US apparel or home-goods retailer, that translates into a surcharge on almost every container, with the rate depending on the supplier’s country. As shopappy reported when USTR missed its September 1 textile quota target, apparel from Bangladesh, Cambodia, Indonesia and Malaysia has stayed at the flat 10 percent band with no relief mechanism in place.
The three rate bands
| Band | Rate | Economies (per Gresser brief) | Examples (per USTR July announcement) |
|---|---|---|---|
| Standard | 12.5% above MFN | 41 | Most investigated economies not covered by a reciprocal deal or an existing forced-labor ban |
| Reduced | 10% above MFN | 17 | Argentina, Bangladesh, Cambodia, Canada, India, Indonesia, Malaysia, Mexico, Pakistan, United Kingdom, others with reciprocal agreements or existing bans |
| Flat | 10% | 2 | Not identified in the brief |
A separate treatment applies to the European Union, Japan, Korea, Taiwan and Switzerland, which pay 10 percent or 12.5 percent net of the MFN rate on certain non-exempted products, according to the USTR announcement. USTR also built five exemption categories into the action, covering raw materials not available domestically, products whose tariffing would cause economy-wide disruption, items unobtainable at reasonable prices in the US, goods where an exemption encourages compliance, and articles where a tariff would not help eliminate the targeted practice. Those carve-outs are themselves a point of attack: the Wolff brief describes them as “virtually an identical set of exclusions” to the ones used under IEEPA, “designed to accommodate key U.S. stakeholders or fend off a political backlash.”
What is the core legal argument in the Wolff, Hills and Maruyama brief?
The Former U.S. Trade Officials brief runs 22 pages and makes essentially four moves. First, it argues that the Constitution vests the tariff power in Congress and that every delegation of that power has been specific and constrained, citing Hampton & Co. v. United States (1928) for the “intelligible principle” requirement and West Virginia v. EPA (2022) for the major-questions doctrine.
Second, it walks through the legislative history of the Trade Act of 1974 to show that Section 301 was written to deal with specific barriers in a “foreign country or instrumentality.” The brief recounts the “Chicken War” with the European Communities and the disputes with Japan over beef, autos, skis, ketchup and computers that motivated the Nixon administration to expand the predecessor provision, Section 252 of the Trade Expansion Act of 1962. The point is that Congress was solving a problem of targeted retaliation, not handing over the tariff schedule.
Third, it points to a half-century of consistent practice. The Senate Finance Committee report on the 1974 Act described the provision as “negotiating leverage.” The 1988 Omnibus Trade and Competitiveness Act kept that focus, and Congress explicitly rejected the Gephardt Amendment, which would have authorized across-the-board sanctions against countries with large trade surpluses, in favor of the narrower “Super 301” procedure. “The appropriate course of action for the President, if he wanted the United States to impose a blanket tariff, was to ask Congress for authority to do so,” the brief states.
Fourth, and most consequentially for the refund question, the brief argues that USTR is an agency subject to the Administrative Procedure Act, citing the trade court’s own 2022 decision in In re Section 301 Cases. That means the tariffs can be set aside if they are arbitrary and capricious, a standard the brief says the investigations fail because USTR “made no effort to identify how each individual country’s practices affected U.S. commerce.”
The “thinly disguised pretext” claim
The brief’s sharpest passage links the forced-labor tariffs to the two tariff programs that preceded them. The Supreme Court struck down the IEEPA reciprocal tariffs in Learning Resources, Inc. v. Trump earlier this year, and the Court of International Trade voided the Section 122 balance-of-payments tariffs on May 7, 2026 in Burlap & Barrel, Inc. v. United States, the brief notes. The Section 301 duties, it argues, “bear a remarkable resemblance” to both, covering US trade “in the same comprehensive manner” and appearing to be “a thinly disguised pretext for reimposing the President’s IEEPA tariffs under the guise of dealing with forced labor, after all too often sham investigations.”
That framing is not just rhetoric. If the court accepts that Section 301 was used as a substitute for a struck-down authority, the remedy question becomes whether the duties were unlawful from July 24 onward, which is precisely the question that determines whether importers get money back.
What does the Gresser and PPI brief add on the facts?
Where the former officials attack the statute’s reach, Gresser attacks the record. His brief accepts, at the outset, that forced labor is “an egregious violation of human rights” and that US policy should help eliminate it. It then argues that USTR’s June 2 report does not do the one thing Section 301(b) requires: demonstrate that each foreign government’s “unreasonable or discriminatory” act, policy or practice “burdens or restricts” US commerce.
The brief makes two factual claims. First, the report does not show that any of the 60 listed economies actually imports goods made with forced labor. Second, even if such imports occur, the report does not show that they have any necessary effect on US exports or on US import-competing businesses and workers. “The Report does not establish any burden on U.S. commerce,” the brief states. “Therefore the tariff action taken pursuant to it is illegal.”
Gresser draws a deliberate contrast with USTR’s March 2018 Section 301 report on Chinese technology transfer, which cited specific Chinese policy directives, named a People’s Liberation Army unit conducting intrusions, identified harm to SolarWorld, Westinghouse and ATI, and modeled roughly $50 billion in damage to US enterprises. Whether or not the resulting China tariffs worked, he argues, the 2018 report made a serious effort to identify practices and quantify a burden, and the 2026 report did not.
The $100 billion estimate
The brief’s headline number is a cost estimate. Extrapolating from ten months of experience with the 10 percent worldwide tariff under Executive Order 14257, Gresser estimates the forced-labor duties will cost American goods buyers, including families, manufacturers, construction firms, restaurants, clinics and retail shops, about $100 billion a year. He puts that at roughly double the revenue raised by the congressionally authorized Harmonized Tariff Schedule, and nearly 100 times the $1.3 billion average annual value of shipments that Customs and Border Protection has blocked or seized over the past five years on suspicion of forced-labor content.
The comparison is designed to show a mismatch between remedy and problem: a $100 billion annual tax to address a category of imports that CBP’s own enforcement suggests is worth about $1.3 billion a year. The brief also notes that the USTR report contains no discussion of using the tariffs as leverage to make trading partners adopt or enforce forced-labor bans, which is the mechanism Section 301 is supposed to run on.
How did the case get to this point?
The Liberty Justice Center filed the first challenge on July 24, 2026, the day the duties took effect, on behalf of Burlap & Barrel, a US online spice retailer, and Collective Horology, an independent watch retailer. A coalition of 25 states led by Democratic attorneys general filed a separate suit in early August, and a further group of small-business importers filed a third. The court placed the cases on a single briefing calendar under an August 13 scheduling order, and they are now consolidated as In re Section 301 Forced Labor Cases before Judges Jennifer Choe-Groves, Timothy M. Reif and Lisa W. Wang.
The plaintiffs filed their merits brief in late August, according to the Liberty Justice Center, which says it joined the plaintiffs’ steering committee after consolidation. As shopappy reported in its earlier coverage of the government’s September 15 response deadline, that date is the first time the administration has to defend the forced-labor action on a full record rather than in a press release. The amicus briefs landed in the window between the plaintiffs’ brief and the government’s reply, which is the conventional moment for supporting filings.
The American Enterprise Institute has also filed an amicus brief in the consolidated case, listed on its website with a September date, according to its publications feed. shopappy has not reviewed that brief and it is not part of the Liberty Justice Center package.
Litigation calendar
| Date | Event | Source |
|---|---|---|
| March 12, 2026 | USTR initiates Section 301 investigations into 60 economies | USTR |
| June 2, 2026 | USTR report and proposed 10% / 12.5% tariffs | USTR; Gresser brief |
| July 23–24, 2026 | Final action announced; duties effective 12:01 a.m. July 24; LJC files first suit | USTR; LJC |
| Early August 2026 | 25 states file State of Oregon v. Trump | CNBC, PBS |
| August 13, 2026 | Scheduling order; three-judge panel; September 30 argument set | Inside U.S. Trade, MLex |
| Late August 2026 | Plaintiffs’ merits brief filed | LJC |
| September 10–11, 2026 | Former officials’ brief and Gresser/PPI brief docketed | Court filings (Doc. 23-2) |
| September 15, 2026 | Government’s consolidated response due | Inside U.S. Trade, Trade Law Daily |
| September 30, 2026 | Oral argument | Inside U.S. Trade, MLex, LJC |
| October 2, 2026 | Answer due in the states’ docket | Barnes Richardson & Colburn summary |
How does this fit the wider tariff litigation of 2026?
The forced-labor case is the third round of a sequence that has defined trade policy this year. The administration first imposed broad tariffs under the International Emergency Economic Powers Act, which the Supreme Court held did not authorize tariffs at all. It then turned to Section 122 of the Trade Act, which allows a temporary import surcharge of up to 15 percent for 150 days to address balance-of-payments problems; the Court of International Trade struck those duties in May. When the 150-day clock expired, USTR’s Section 301 authority became the vehicle for what the Wolff brief calls “virtually identical tariffs to nearly all U.S. trade,” while a fourth track, the Section 338 duties on Canada, runs in parallel.
| Authority | Who acts | Scope of 2026 use | Status |
|---|---|---|---|
| IEEPA (1977) | President | Worldwide “reciprocal” tariffs | Struck down by the Supreme Court in Learning Resources v. Trump; refunds in progress through CBP’s CAPE system |
| Section 122, Trade Act of 1974 | President | Temporary surcharge, 150-day limit | Struck down by the CIT on May 7, 2026 in Burlap & Barrel v. United States, per the Wolff brief |
| Section 301, Trade Act of 1974 | USTR (agency, APA review applies) | 10% / 12.5% on 60 economies, 99.4% of imports, effective July 24 | In force; consolidated challenge argued September 30 |
| Section 338, Tariff Act of 1930 | President | Up to 50% on Canadian goods; import bans effective September 29 | In force; not part of this case |
The distinction in the second column is the one the amici want the court to focus on. IEEPA and Section 122 are presidential authorities, and courts reviewed them mainly on the question of whether the statute permitted tariffs at all. Section 301 is administered by USTR, which the trade court has held is an agency. That opens the door to Administrative Procedure Act review of the investigations themselves, including whether the findings were adequate and whether the remedy was calibrated to the problem, and both briefs are written for that door.
What does the refund experience under IEEPA tell importers?
For retailers, the practical question is not whether the amici are right but what happens to the money if the court agrees with them. The IEEPA episode is the template, and it has been slow. After the Supreme Court’s ruling, CBP built a refund mechanism called CAPE that processed claims in phases, and the postponement of CAPE Phase 3 left an estimated $11.4 billion in refunds stalled at the end of August. Ten House Democrats have since pressed CBP to fix account backlogs before the 90-day IEEPA refund filing window closes, with roughly $1.7 billion described as stranded.
Two lessons carry over. First, a favorable ruling does not produce automatic refunds; importers had to file, and the administrative capacity to process claims lagged the legal outcome by months. Second, eligibility turned on entry-level status, and entries that had liquidated without a protest or an extension were harder to recover than entries kept open. The trade court’s handling of the IEEPA refund class question, which left some 330,000 importers waiting on a single decision, showed how much depends on whether relief is structured as a class or as individual claims.
The Section 301 duties have now been collected for more than seven weeks. A ruling on the merits could come weeks or months after September 30, and any appeal to the Federal Circuit would extend that further. Importers who want to preserve a refund claim for entries filed since July 24 should be tracking liquidation dates now, and most customs practitioners have advised filing protests or requesting extensions on affected entries, based on the pattern from the earlier litigation.
What should retailers and e-commerce sellers do before September 30?
The hearing itself will not change duty rates. But three things are worth doing in the two weeks before it, based on how the prior rounds played out.
Map exposure by rate band and supplier country
The 10 percent and 12.5 percent bands, plus the exemption list, produce different effective rates on the same product from different origins. A retailer sourcing cotton apparel from Bangladesh (10 percent band) and Vietnam (12.5 percent band) is paying a 2.5-point spread that did not exist in June. That spread, and the possibility that it disappears if the court rules for the plaintiffs, should be visible in landed-cost models and in any supplier negotiations scheduled for the fourth quarter.
Preserve refund rights on every entry since July 24
The IEEPA process rewarded importers whose entries were still open when relief arrived. The same logic applies here. Customs brokers can flag entries subject to the Section 301 forced-labor surcharge, and the relevant Harmonized Tariff Schedule chapter 99 subheadings identify them in ACE data. Whether to protest each liquidation or seek extensions is a decision for counsel, but it is a decision that has to be made on a rolling basis rather than after a ruling.
Watch pricing, not just the courtroom
Tariff refunds have already started to show up in consumer prices. shopappy’s analysis of how IEEPA refunds are feeding into core goods CPI found that retailers who received refunds were passing a portion through in price cuts during the back-to-school and early holiday windows. If the Section 301 duties fall, the same dynamic would follow, but with a lag measured in quarters rather than weeks, and competitors’ pricing would move before any refund check arrives.
What are the possible outcomes on September 30 and after?
Oral argument before a three-judge panel is not a ruling, and the Court of International Trade does not announce decision timelines. The Section 122 case, brought by the same plaintiffs, was argued and decided within a few months earlier this year, which suggests the panel can move quickly when it chooses. Three broad outcomes are possible.
The court could rule that Section 301 does not authorize tariffs of this breadth at all, which is the structural argument in the Wolff brief. That would void the duties in their entirety and set up the refund question directly. The court could instead rule on the narrower APA ground that USTR’s investigations were inadequate, which is the Gresser argument; that outcome would also void the duties but might leave USTR room to re-run the investigations with a fuller record. Or the court could uphold the action, in which case the duties would remain and the plaintiffs would almost certainly appeal to the Federal Circuit.
In any of the three scenarios, the government is likely to seek a stay of any adverse ruling pending appeal, as it did in the earlier tariff cases. That means collection would probably continue even after a loss, and importers would once again be relying on preserved entries rather than a stopped meter. The September 30 argument is the moment the merits get tested, but the money will move on a slower clock.
Frequently asked questions
What is Section 301 and why is it being used for forced labor?
Section 301 of the Trade Act of 1974 lets the US Trade Representative investigate a foreign country’s unfair acts, policies or practices and, if they burden US commerce, negotiate their removal or impose duties on that country’s goods. In March 2026 USTR opened investigations into 60 economies over their failure to ban imports of forced-labor goods, and in July it imposed tariffs of 10 percent or 12.5 percent on most of their exports to the US.
Who filed the amicus briefs announced on September 14?
One brief was filed by Ambassador Alan Wm. Wolff, Ambassador Carla A. Hills and Warren Maruyama as “Former U.S. Trade Officials.” A second was filed by Ed Gresser and the Progressive Policy Institute. Both support the plaintiffs and were coordinated by the Liberty Justice Center, which represents Burlap & Barrel and Collective Horology.
What is the case number and who are the judges?
The consolidated matter is In re Section 301 Forced Labor Cases, Court No. 26-cv-03555-3JP, before Judges Jennifer Choe-Groves, Timothy M. Reif and Lisa W. Wang of the US Court of International Trade.
When is the hearing?
Oral argument is scheduled for September 30, 2026, according to Inside U.S. Trade and MLex. The government’s consolidated response brief is due September 15.
How much do the forced-labor tariffs cost?
The Gresser brief estimates about $100 billion a year for American goods buyers, extrapolating from the experience of the earlier 10 percent worldwide tariff. It describes that as roughly double the revenue of the regular Harmonized Tariff Schedule and nearly 100 times the $1.3 billion in annual forced-labor seizures by CBP.
Do importers keep paying while the case is pending?
Yes. The duties remain in effect and CBP continues to collect them. No court has stayed collection, and the government has sought stays pending appeal in the earlier tariff cases.
Will there be automatic refunds if the plaintiffs win?
Not automatically. The IEEPA refund process required importers to file claims through CBP’s CAPE system, and refund eligibility depended on whether entries were still open or had been protested. Importers should assume a similar process would follow any ruling against the Section 301 duties.
Is this the same case the 25 states filed?
The states’ suit, State of Oregon v. Trump, was filed separately in early August and placed on the same briefing calendar. The Liberty Justice Center says the challenges are now consolidated under the In re Section 301 Forced Labor Cases caption. The states’ docket lists an answer date of October 2.
What happened to the earlier tariffs under IEEPA and Section 122?
The Supreme Court held in Learning Resources, Inc. v. Trump that IEEPA does not authorize tariffs. The Court of International Trade struck down the Section 122 surcharge on May 7, 2026 in Burlap & Barrel, Inc. v. United States. The amici argue the Section 301 duties are a replacement for both.