Importers filed their reply brief on September 18 accusing USTR of a check the box investigation across 60 economies. The Court of International Trade hears argument on September 30 in the third legal assault on the administration’s global tariff
By the US Trade Desk
NEW YORK, September 20, 2026. The last brief is in. On Thursday, September 18, lawyers for a group of American importers filed a 29 page reply at the United States Court of International Trade, closing the written record in the most consequential trade case now pending in the federal courts and setting up oral argument before a three judge panel on September 30.
At issue are the Section 301 tariffs of 10 and 12.5 percent that took effect at 12:01 a.m. Eastern on July 24, 2026, covering 60 economies that together account for 99.4 percent of American imports. The stated justification is those economies’ failure to prohibit and enforce against imports made with forced labour. The plaintiffs say that justification is a costume.
“USTR imposed sweeping tariffs on 60 distinct economies without making the country specific, fact based determinations required by Section 301 and the Administrative Procedure Act,” the reply brief states. It goes on: “The inadequacy of USTR’s analysis is utterly unsurprising given the preordained objective of its investigation: to ensure continuity with the invalidated Global IEEPA Tariffs.”
The government’s answer, filed on September 4 and running 75 pages, is that the plaintiffs are confusing paperwork with law. “As plaintiffs see it, USTR should have proven that he took 60 separate actions by multiplying the paper trail. But that defies both law and common sense,” the brief argues. Its conclusion on the central allegation is blunt: “Plaintiffs’ pretext argument is long on rhetoric and devoid of evidence of bad faith.”
How the case got here
The procedural history is the plaintiffs’ best evidence, which is why both sides spend so much of their briefing on dates.
On February 20, 2026, the Supreme Court held 6 to 3 in Learning Resources, Inc. v. Trump that the International Emergency Economic Powers Act does not authorise the President to impose tariffs. Within hours of the ruling, Trade Representative Jamieson Greer issued a statement saying Section 301 would be used “to ensure continuity” in achieving the President’s goals of “reducing the U.S. global trade deficit in goods, reversing the lack of reciprocity by our foreign trading partners, and incentivizing the reshoring of production.” The same day, the President signed Proclamation 11012 imposing a temporary import surcharge under Section 122 of the Trade Act of 1974, a statute that caps such a surcharge at 15 percent and 150 days.
On March 3, the President and Greer publicly described the five month Section 122 window and the intention to complete Section 301 investigations inside it. Nine days later, on March 12, USTR initiated 60 forced labour investigations at the President’s specific direction. A parallel excess capacity investigation covering 16 economies was initiated the same day.
The agency moved at a pace with no modern parallel. Public hearings ran on April 28 and 29 with roughly 60 witnesses and more than 450 comments. A single report covering all 60 economies issued on June 2. Proposed action published on June 5. A second round of hearings on July 7 to 9 drew more than 100 witnesses and over 1,600 comments. Final action was posted on USTR’s website on July 23 at around 5 p.m. Eastern and published at 91 Fed. Reg. 47,318 on July 28.
The duties took effect at 12:01 a.m. on July 24, the precise moment the Section 122 surcharge expired by operation of law.
For comparison, the first term Section 301 investigation into Chinese intellectual property practices ran from August 24, 2017 to June 20, 2018, roughly ten months. The Brazil investigation ran exactly a year. This one ran four and a half months from initiation to final action, against a twelve month statutory maximum.
The cases and the court
Three suits were filed. Learning Resources, Inc. and six co plaintiffs filed through Akin Gump on July 24. The Liberty Justice Center filed Burlap and Barrel, Inc. and Collective Horology, LLC the same day, pleading a proposed class action on behalf of all importers of record. Twenty five states, led by Oregon and co led by the attorneys general of California and Arizona, filed on August 3.
On August 5 the court assigned a three judge panel under 28 U.S.C. 255: Judges Jennifer Choe-Groves, Timothy M. Reif and Lisa W. Wang. Judge Reif sat on the panel that ruled against the government in the IEEPA litigation.
On August 19 the court consolidated the challenges under the caption In re Section 301 Forced Labor Cases, Court No. 26-3555, selected Learning Resources as the sample case and stayed the other two. The states and the Liberty Justice Center plaintiffs are participating as amici and through a plaintiffs’ steering committee rather than as the briefing parties. That is a detail worth getting right: the 25 state complaint is the most quotable document in the case, but it is not the document the panel will decide.
Nine amicus briefs were filed on September 10 and 11, from former USTR officials including Alan Wm. Wolff and Warren Maruyama, the Goldwater Institute, Consumer Watchdog, the Progressive Policy Institute, a group of economists, the plaintiff states, academics Timothy Meyer and Gregory Shaffer, and a joint brief from the Cato Institute with Michael McConnell and Ilya Somin.
The core argument
Section 301(b) of the Trade Act of 1974 requires the Trade Representative to determine, for each foreign country, that an act, policy or practice is unreasonable or discriminatory and that it burdens or restricts American commerce, and that action is appropriate. Section 304 requires the determination to rest on the investigation record and on consultations.
The plaintiffs say USTR did none of that in any meaningful sense. Their brief argues the agency “parrot[ed], 60 times over” the same conclusion and then assigned “one of just two tariff rates,” a spread of 2.5 percentage points across the entire world. They cite Heitmeyer v. FCC for the proposition that reciting statutory language is not making a finding, and Connecticut Light and Power v. FERC on “nonexplanatory boiler plate.”
Their strongest positive comparator is the agency’s own past practice. The 2019 and 2020 digital services tax investigations produced seven country specific reports and seven tailored actions, covering goods worth between 65 million and 1.3 billion dollars. That, plaintiffs argue, is what Section 301 looks like when it is done properly.
“Rather than tailoring its remedy to the circumstances of each Targeted Economy, USTR divided all 60 into one of two uniform categories and simply declared that approach ‘appropriate,’” the September 18 reply states. And later: “Neither Section 301 nor the APA authorizes agencies to tariff first and justify later.”
The government’s response has three legs. First, the findings exist: the June 2 report and the Federal Register notice contain sections headed “Specific Determinations of Action in Each Investigation,” and incorporation by reference is permissible. Second, there is no statutory paperwork requirement, and under Vermont Yankee courts may not impose procedures beyond those Congress specified. Third, the agency’s history shows bulk practice is normal: 130 Section 301 investigations have been conducted, including 30 involving the European Communities and European Union between 1975 and 2020, four apiece in 1975 and 1976, and a 2020 digital services tax initiation covering ten economies at once.
The government’s reductio is pointed. On plaintiffs’ theory, it argues, a single European Union wide policy would require 27 separate investigations.
Pretext, and the evidence for it
The pretext allegation rests on seven pieces of circumstantial evidence, and they are genuinely awkward for the government.
The Greer statement of February 20 promising continuity. Treasury Secretary Scott Bessent’s statement that “this Administration will invoke alternative legal authorities to replace the IEEPA tariffs,” and his remark on June 24 that “then the tariff rates are going to go back to exactly where they were.” Greer’s congressional testimony that “the specific authorities this administration is using have changed, but the trade strategy has not.” The timing to the minute on July 24.
Then three documentary points. Annex A of the June proposed action was identical to Annexes I and II of the Section 122 proclamation, meaning the exclusion lists were cloned wholesale from the predecessor regime. The rate architecture, a baseline plus country specific adjustments, mirrors the IEEPA structure. And the Brazilian frozen beef carve out: of only three examples of forced labour tainted goods the USTR report relied on, one was Brazilian beef, yet the final annex exempts frozen Brazilian beef, exactly as the IEEPA tariffs had.
Plaintiffs invoke Department of Commerce v. New York, the 2019 census citizenship question case, and quote it directly: the government is asking the court to “exhibit a naiveté from which ordinary citizens are free.” Their framing of the whole case is one sentence: “Invoking forced labor import practices was a convenient means for reimposing the President’s tariff agenda, not the end itself.”
The government’s defence is doctrinal rather than factual. Pretext is a bad faith claim requiring a strong showing of bad faith or improper behaviour. Judicial inquiry into executive motivation should normally be avoided. Extra record statements are improper under Camp v. Pitts. Statements remote in time and made in unrelated contexts do not count. And crucially, Department of Commerce itself acknowledges that an agency head may arrive with policy preferences and direct staff to substantiate them.
On timing, the government’s brief says the proximity of the two regimes “shows, at most, that the Trump Administration continues to maintain that tariffs are beneficial to the American economy,” and that a four and a half month investigation inside a twelve month window “merely shows that the investigations were high priority and efficient.”
The presidential direction card
The government’s strongest textual argument is easy to overlook. Section 301(b)(2) provides that USTR “shall take all appropriate and feasible action authorized under subsection (c), subject to the specific direction, if any, of the President.”
USTR told commenters it could not adopt alternatives “that are inconsistent with the specific direction of the President.” The government argues this makes deference not merely appropriate but compelled: “USTR’s decision to follow ‘the specific direction of the President’ is not just reasonable; it is expressly required by Section 301. That cannot be arbitrary or capricious.”
Its anchor case is Trump v. Orr, decided in 2025, where the Secretary of State made passport changes the President ordered without further explanation and survived arbitrary and capricious review. The government stresses that Orr postdates the Federal Circuit’s HMTX decision and that HMTX never addressed whether presidential direction narrows the scope of review.
Plaintiffs distinguish Orr on the statute. The Passport Act let the Secretary issue passports only “under such rules as the President shall designate and prescribe,” leaving the Secretary no rule making role at all. Section 301, by contrast, vests the determination in USTR, and the 1988 House report shows Congress deliberately transferred that authority to the Trade Representative.
Major questions and nondelegation
The Cato brief, joined by McConnell and Somin, makes three moves. Section 301 authorises tariffs only against specific unreasonable or discriminatory policies of a foreign country that burden American commerce, and is “not a blank check.” Any ambiguity must be resolved against the government under the major questions doctrine. And the tariff power is not exempt from that doctrine on the ground that it is a foreign affairs power. Somin, writing on the Volokh Conspiracy, argued the impact of these tariffs “is as large or larger than most policies previously invalidated by the Supreme Court on major questions grounds.”
The government says the Federal Circuit has already foreclosed this. HMTX Industries held that Section 2417 raises no nondelegation problem because it places no fewer boundaries on USTR’s authority than Section 301(b) itself, and rejected the major questions argument for similar reasons. The brief adds a sharp point: some of the same plaintiffs, through the same counsel, conceded the nondelegation issue in the Federal Circuit in HMTX. It also notes that the Chief Justice’s opinion in Learning Resources described Section 301 as a “clear and limited delegation,” which cuts against treating it as a major questions problem.
Plaintiffs answer in a footnote that HMTX “did not confront an interpretation of Section 301 at all.”
Remedy, which may matter more than liability
If the panel finds for the plaintiffs, the fight over what happens next is already fully briefed and is genuinely open.
Plaintiffs want vacatur, the ordinary remedy under the Administrative Procedure Act, and argue that remand without vacatur is inappropriate where the defect is a failure to compile a record rather than a failure to explain. “[T]hose failures require vacatur, not a do over that allows USTR to return to the drawing board while continuing to collect billions of dollars in unlawful taxes from Americans,” the reply states.
The government makes three escalating arguments. Remand without vacatur is the proper course, citing HMTX itself for the proposition that vacatur is not always required when an agency has provided inadequate reasoning. Alternatively, the APA does not authorise vacatur at all, an argument drawn from Justice Gorsuch’s concurrence in United States v. Texas and a footnote in Trump v. CASA. Failing both, any relief must be party specific and country specific, because the presidential memorandum expressly makes each economy’s action severable. On that theory the plaintiffs reach at most the seven economies they import from, being China, Taiwan, South Korea, Vietnam, Thailand, India and Mexico, and “not the remaining fifty three.”
“Plaintiffs also request staggeringly overbroad relief,” the government brief says.
The plaintiffs’ reply attaches new declarations to cure the government’s complaint that they filed none originally, and answers that the government “cite[s] no case adopting such a remedy” as party specific vacatur. A footnote adds that any party specific vacatur should extend to plaintiffs in the stayed cases.
What the skeptics say
The most useful counterweight to plaintiff optimism came from a Trade Law Daily survey published on July 29.
Christopher Duncan of Squire Patton Boggs put it directly: “The problem for the plaintiffs is the Federal Circuit has already interpreted Section 301 broadly to grant the administration wide latitude as to the bases for the tariffs and held that even a tacit showing of facial compliance with the designated procedural requirements meets the APA.” Courts, he added, “have been highly deferential even in the face of evidence that the tariffs and rates were obviously pre ordained.”
Josh Kagan of Kelley Drye, a former Assistant USTR for Labor Affairs, made the observation that most complicates the pretext story: “I think two things can be true. I think both [it] can be a ‘pretextual investigation,’ and also it can be one that is based on actual evidence that exists in the world that involves the agency following the necessary administrative steps.” Kagan also noted that ten countries adopted forced labour import prohibitions during the investigation and received rate reductions as a result. Seven economies moved from 12.5 to 10 percent between the June proposal and the final action: Cambodia, Guatemala, Honduras, India, Jordan, Sri Lanka and Trinidad and Tobago. “That does seem to have worked,” he said, “and I don’t really understand the argument to the contrary.”
Luke Mathers of Sandler Travis and Rosenberg noted that arguing pretext “is typically a difficult case to make,” given the presumption of regularity courts extend to government action.
And the Congressional Research Service flagged the outcome that would be a nominal plaintiff win with no practical effect. In the earlier HMTX proceedings, rather than vacate the China tariffs, the court gave USTR an opportunity to supply additional justification. USTR did so, and the court upheld the modified tariffs.
On the other side, Alan Wm. Wolff and Warren Maruyama wrote for the Peterson Institute on August 12 that “Section 301 is a selective authority, not a blanket authority,” and that the speed of the investigations “cross the line into being arbitrary and capricious in nature.” Their constitutional framing is the sharpest in the record: “If a Section 301 tariff can be set at any level, if it is also set on goods from most countries the United States trades with, this amounts to a complete transfer of the tariff power from the Congress to the president and his officials. That the Constitution cannot allow.”
What importers should do before September 30
Nothing in this litigation suspends collection. No injunction has issued. Customs and Border Protection continues to assess the duties, and will continue to do so through argument and through whatever appeal follows.
The practical lesson from the IEEPA round is the one that matters. Under that regime, relief flowed cleanly to importers who had filed their own actions, and messily or not at all to those who had not. The government is arguing hard in this case for party specific relief. Importers who are not plaintiffs should not assume a vacatur reaches them.
Three clocks run simultaneously and are frequently confused. CBP’s own authority to reliquidate voluntarily under 19 U.S.C. 1501 runs 90 days from liquidation. The importer’s protest window under 19 U.S.C. 1514 runs 180 days. The limitations period for a residual jurisdiction action at the Court of International Trade under 28 U.S.C. 2636(i) is two years, and because that period is non jurisdictional under Ford Motor Co. v. United States, tolling doctrines are available.
Counsel advice converges on a dual track. Duane Morris recommends filing at the CIT while also complying with any administrative requirements CBP establishes. Miller and Chevalier notes that for unliquidated entries, importers can sue under 28 U.S.C. 1581(i) and immediately seek a preliminary injunction against liquidation, while warning that CBP may treat collection of these duties as a non protestable administrative act rather than a decision of the Customs Service.
Kelly M. Reid of Ward and Smith, writing on September 18, added the trap most likely to catch careful companies: a protective protest “should not be assumed to stop the limitations clock for a separate section 1581(i) action.”
One channel is uncontested. Because these are Section 301 duties, they are eligible for duty drawback at up to 99 percent on exported, destroyed or returned merchandise, unlike Section 232 duties. CBP filing instructions are in CSMS 69326983, covering Chapter 99 headings 9903.05.20 through 9903.06.21. There is no product exclusion process for this action.
Morgan Lewis put the planning assumption plainly in a July client alert: importers should plan on the basis that the duties will remain in effect.
Timing
Argument is on September 30 in New York. No source projects a decision date, though the panel has already accelerated the schedule once, moving the government’s response forward from September 15 to September 4. A ruling in the fourth quarter is plausible but nothing commits the court.
Whatever the panel decides goes to the Federal Circuit and then, on any realistic view, to the Supreme Court. William Reinsch of CSIS summarised the arc on August 12: “Since neither side will surrender, all these cases will end up in the Supreme Court’s lap, which means final resolution is some distance away, probably next year.”