THE VIRGINIA-PILOT                                                      

             Embrace a litigation strategy

               to confront Trump’s tariffs

                              By Stuart S. Malawer | Guest Columnist

                              PUBLISHED: August 31, 2025.

Under Presidents Donald Trump, Joe Biden and now Trump again, U.S. trade policy has dramatically shifted from its traditional post-World War II approach of multilateralism to one centered on national security and unilateral priorities. At the core of this transformation are the unprecedented tariff increases imposed by Trump and the resulting surge in trade tensions with China, India and other major partners. Significant domestic litigation has been filed challenging Trump’s tariffs, and these cases may ultimately prove fatal to them.

Trump’s trade policies have serious implications for Virginia’s economy. Exports and foreign investment are fundamental to the commonwealth’s economic development strategy. During Trump’s first term, China’s retaliatory tariffs severely impacted Virginia’s agricultural exports. Such retaliation is now repeating itself. As U.S.-China trade tensions escalate, the threat to cargo activity at the Port of Virginia and throughout Hampton Roads has increased.

Today, more than 1,200 foreign-owned firms operate in Virginia, employing more than 50,000 people. However, the establishment of new foreign subsidiaries and employment by international firms appear to have declined this year, likely due to trade uncertainty stemming from Trump’s renewed tariff threats. Ending the “de minimis” exemption this week marks Trump’s largest new tariff yet, carrying major implications for e-commerce, shipping and consumer inflation.

What can be done? One option is for affected parties to litigate trade disputes in U.S. federal courts. Foreign states, foreign corporations and domestic businesses should consider this strategy to challenge Trump’s tariffs.

Central to the debate over the legality of Trump’s tariffs is a constitutional reality: Congress holds the exclusive power to regulate international trade and authorize tariffs (Article I, Section 8, Clause 3). The president has no independent constitutional authority in this area. Congress delegates tariff authority to the president under specific statutes, and any presidential action must be within the limits of that delegation.

Unfortunately, Congress has failed to rein in Trump’s aggressive use of tariffs. However, a case has been filed in the U.S. Court of International Trade challenging several of these measures. This court has already ruled against the president. The case is now before the U.S. Court of Appeals for the Federal Circuit, which so far has expressed skepticism toward the administration’s arguments. The case continues to be heard and is likely headed to the Supreme Court. True to form, the Trump administration has warned the court not to rule against it.

Interestingly, lawsuits challenging Trump’s tariffs have not been spearheaded by multinational corporations or foreign governments. Instead, they have been brought by small U.S. companies, supported by conservative Republican donors, attorneys and several Democratic states. These cases argue that the president’s reliance on “national emergencies” as justification is legally unsound because no such emergency exists. The administration has also resorted to questionable national security claims, most recently expanding tariffs on steel imports from close allies Japan and Korea to 50%.

Trump’s sweeping claims of executive authority extend beyond trade to immigration, border security and other areas. Courts have repeatedly ruled against him. Hundreds of cases have been filed across the policy spectrum, and the administration has lost many at early stages.

So where does this leave businesses and U.S. trading partners facing Trump’s historic use of tariffs — a reversal of decades of trade liberalization, pushing U.S. policy back toward the 1930s? From my perspective as an international trade lawyer and professor with a focus on national security, both companies and foreign governments should increasingly turn to U.S. legal processes as part of their trade strategy.

Tariffs today are no longer a technical detail of trade law. They have become geopolitical weapons. For Trump, tariffs are a blunt instrument to achieve a wide-range of policy goals, regardless of the economic or diplomatic cost. This represents a return to the protectionist policies of the 1930s. What is needed now is leadership that embraces a legal strategy suited for the realities of the 21st century.

Stuart S. Malawer, JD, Ph.D., of Great Falls is a distinguished service professor of law and international trade emeritus in the Schar School of Policy and Government and the founder and former director of the Graduate International Transactions Program at George Mason University. He is a member of the bar of the commonwealth of Virginia and the U.S. Court of International Trade.