In a new paper, “Section 122: The Trump Administration’s Illegal Stopgap,” Clark Packard and Alfredo Carrillo Obregon argue that the Trump administration’s use of Section 122 to impose sweeping tariffs is built on a fundamentally flawed legal theory.

The authors explain that Section 122 was created for a very different global monetary system and was never intended to function as a broad tariff tool for modern trade deficits.

“To understand why the administration’s invocation of Section 122 is so legally strained, it is necessary to understand the monetary world that produced the statute is a world that ceased to exist more than 50 years ago.”

The paper also notes that lawmakers questioned the provision from the beginning.

Representative Henry Reuss “described Section 122 as ‘superfluous and unwise,’ given the dollar’s floating rate.”

Packard and Carrillo Obregon conclude that “Congress did not authorize tariffs to address trade deficits” and warn that the administration’s interpretation “would transform the statute from a tool to address a narrowly-defined set of circumstances to one that can be arbitrarily invoked at any time.”

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