Democrats’ takeover of Congress next year might open the door to challenging President Donald Trump’s tariffs, so businesses should watch closely whether lawmakers can build the bipartisan support needed to play a larger role in controlling duties, trade lawyers told sister publication Supply Chain Dive.
Under the existing legal framework, Trump can use considerable discretion in setting tariff rates under Sections 232, 301 and 338. Trump has invoked Section 232 to impose a 50% levy on steel and aluminum from Canada and Mexico and Section 301 to institute tariffs of 10% or 12.5% on imports from 60 trading partners. He has used Section 338 to impose a 50% tariff on a wide range of Canada goods.
While Congress has failed to push back markedly to date, businesses should watch the progress of three bills — S. 5390 and S. 1272 in the Senate and H.R. 7557 in the House, said Mark Ludwikowski, chair of Clark Hill’s International Trade Practice. All three, including two bipartisan-backed bills, would significantly restrict presidential tariff power.
“That could be additional leverage to force the administration to be more flexible,” Ludwikowski said.
S. 5390, the End Trump’s Tariff Tax Act, would repeal Section 338 and terminate levies on Canada goods imposed under that authority following Trump administration findings that the country discriminated against U.S. commerce through its treatment of U.S. alcoholic beverages, dairy products and motor vehicles. In addition, the bill would require U.S. Customs and Border Protection to refund covered duties, with interest, within 30 days of enactment. The bill was introduced Sept. 14 by Sen. Chuck Schumer, D-N.Y.
S. 1272, the bipartisan Trade Review Act of 2025, would strengthen congressional oversight of presidential tariffs. It would require the president to notify Congress within 48 hours of imposing or increasing a tariff, explain the rationale and appraise potential effects on U.S. businesses and consumers.
The tariffs would expire after 60 days unless Congress passed authorizing legislation and the president signed it into law. Sen. Maria Cantwell, D-Wash., introduced the bill April 3, 2025, with six co-sponsors, including Chuck Grassley, R-Iowa.
The bipartisan Respect NATO Allies Act, H.R. 7557, would require both houses of Congress to approve specified new trade restrictions on imports from NATO allies before the president could implement them. It would generally cover new or increased tariffs and reductions in import quotas or tariff-rate quotas, excluding antidumping and countervailing duties. Reps. Linda Sánchez, D-Calif., and Mike Turner, R-Ohio, introduced the bill Feb. 12.
How a Democrat-led Congress could affect the Trump administration
What form the bills would take in Congress and whether they could muster a two-thirds majority to override a presidential veto — if legislators pass them in the first place — is unknown. Nevertheless, Jonathan Todd, co-lead of the transportation and logistics practice at law firm Benesch, said enough businesses in Republican districts have complained about tariff-fueled prices to push lawmakers toward bipartisanship.
“I think there’s a lot more behind tariff and trade policy that is bipartisan than many people would believe,” Todd said. “On the other hand, I think that many sectors and the public are clearly unhappy with the current state and trajectory of trade policy, so there’s certainly the potential for change as this Congress winds down and a new Congress comes to power.”
Short of changing tariff laws, a Democrat-controlled Congress could take a more active part in overseeing tariff negotiations through hearings, Blake Harden, a managing director at EY’s Washington Council practice, said. Lawmakers could also use the appropriations process to push the administration to provide more detail or act differently.
“They can use the power of the purse to try to influence what’s going on in the administration,” Harden said.
What firms can do ahead of potential tariff changes
While taking a wait-and-see posture on congressional action, businesses can take steps to prepare for possible changes, many of which clients are already doing, the lawyers said.
Actions a business can take include tracking tariff-affected products, verifying classifications and possible exclusions with brokers and documenting tariff-related costs and sales effects, Ludwikowski said.
Todd recommends tracking tariffs within landed costs, staying vigilant about compliance requirements, and considering tariff-free U.S. finishing or light manufacturing. Another good idea is to map supply chains to understand origins and inputs that carry tariffs, he said.
