Three Process lessons

This week’s column is going to descend once again into the legal and process weeds and comment on several recent or prospective developments.

The first is the Supreme Court’s decision last week in Cisco Systems, Inc. v. Doe. My column several weeks ago discussed the basis for the case, the Alien Tort Statute (ATS), concluding that Cisco gave the court the opportunity to deal with the ambiguity surrounding its several previous decisions regarding the ATS. In its decision, the court took the opportunity and, in its own words, “closed the door” on the ability of plaintiffs to use the ATS to pursue human rights violations in other countries. The court did not address the merits of the allegations regarding Cisco; instead, it determined, consistent with previous rulings, that the ATS did not create a cause of action for litigation aside from three causes of action relevant in 1789—violations of safe-passage guarantees, violations of an ambassador’s rights, and piracy—and if one were to exist, it would have to be created by Congress. Previous rulings had said the same thing but left the door open a crack by also saying that someone might be able to find a cause of action in the future. This time the court shut the door by saying that possibility was effectively a null set. The court also noted that Congress did separately create one cause of action in the Torture Victims Prevention Act (TVPA). The Cisco plaintiffs also sued individual Cisco executives under that statute for aiding and abetting torture, but the court also rejected that argument on the grounds that the TVPA did not include aiding and abetting as an actionable tort. The bottom line is increased certainty and a good measure of relief for U.S. companies facing this kind of litigation. It may, however, also increase pressure on Congress to go beyond the TVPA and provide additional human rights–based causes of action.

The second process question is what will happen after July 24 when the Section 122 tariffs expire. Trump is not expected to ask Congress to extend them, and the suggestion that he could let them lapse for a day or two and then reimpose them with a new determination is too cute to prevail in the inevitable lawsuits. Instead, it appears Section 301 tariffs will be imposed to fill the gap. Thus far, the U.S. Trade Representative has been fairly meticulous in observing the various process requirements for imposing these tariffs, and those that have been announced—the 10 or 12.5 percent tariffs on 60 countries for failure to act effectively against forced labor—have not been met with much foreign opposition because they are at or below the levels agreed to in the trade agreements negotiated last year. The challenge for the administration is how to conclude the remaining investigation of 16 countries, most of them included on the forced labor list, for overcapacity. If, as expected, they are all found guilty, even modest additional tariffs will bring the U.S. total tariff level above the caps negotiated last year. The European Union, in particular, has been clear that it believes its agreement with the United States caps the latter’s tariffs at 15 percent, and new tariffs that exceed that will be regarded as a breach of the agreement. Of course, there is always the possibility that some countries will be let off the hook and found innocent, but the record so far suggests that is unlikely. If the administration imposes additional tariffs and stacks them on top of the forced labor tariffs, thus breaching the current agreements, it will face stronger foreign opposition, particularly from those countries that have made framework agreements but have not signed anything. Expect a lot of slow-rolling of negotiations to occur. Trump’s threat last Friday to impose 100 percent tariffs on any nation implementing a digital services tax regardless of current trade agreements only adds to the confusion and uncertainty about U.S. policy.

Finally, business will have to grapple with the uncertainty generated by the now inevitable decision not to renew the United States-Mexico-Canada Trade Agreement (USMCA) on July 1 and instead to trigger the 10-year annual review process. This will be uncharted territory, and I will have more to say about it in future columns. At this point, I want to flag one issue for readers that has not yet been discussed in depth: whether the results of any negotiation will need to be submitted to Congress for approval. The initial USMCA agreement was submitted to Congress and approved pursuant to the then-existing Trade Promotion Authority (TPA), which expired in 2021. TPA, an updated version of procedures initially enacted in the Trade Act of 1974, created a trade-off for the president. If the president followed the procedural consultation requirements and time limits, Congress would consider the agreement without delay, amendment, or filibuster, a significant advantage. However, recent administrations, under both Trump and Biden, have taken the position that agreements only need congressional approval if they require changes in U.S. law. On that basis, a number of agreements, including Trump’s with Japan and Biden’s with Taiwan, were not sent to Congress. In the latter case, Congress rebelled and passed legislation—which Biden signed—retroactively approving the first half of the Taiwan agreement and requiring the second half to be submitted for approval. The congressional position has generally been that all agreements should be submitted for approval—just as the president’s has been that as few as possible should be submitted.

It is too soon to say whether a revised USMCA would have to be submitted to Congress, but some of the issues likely on the table, such as changes in U.S. trade law to accommodate various U.S. interests or changes in tariffs, would point in that direction. The complication this time is that there is no TPA to structure the process, which means the agreement, if submitted, will be subject to normal legislative procedures, including possible delay and amendment. That creates two challenges for the administration. The first will be to try to avoid that possibility by negotiating an agreement that does not require approval and then dealing with congressional insistence that it be submitted anyway. The second will be the additional uncertainty created in Congress if it is submitted without any procedural limitations. In 2021, many in the business community urged the Biden administration to seek renewal of TPA even if there were no current plans to use it. That did not happen, and the Trump administration may now have to deal with the consequences.

Author’s Note: I retired from CSIS on March 29, 2026. I plan to continue writing this column and participating in the Trade Guys podcast, so please continue to read and listen. However, my CSIS email address will no longer be working, so if readers or podcast listeners want to contact me directly, they should do so at [email protected].

William A. Reinsch is a senior adviser (non-resident) and Scholl Chair emeritus with the Economics Program and Scholl Chair at the Center for Strategic and International Studies in Washington, D.C.