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Economists have long known that tariffs harm consumers. A new analysis finds tariffs likely hurt female consumers more because of the tariff rates assigned to many products made for women. Earlier research from the U.S. International Trade Commission reached the same conclusion.

Miranda Hatch, writing in the BYU Law Review, identified a disparity in tariffs on women’s products and explained the tortured history of litigation on this issue. “Some of these gender differential tariffs are set at the same rate, but many are very different for men and women, with the majority hurting women,” according to Hatch. “Right now, there are currently 78 tariff provisions that have different rates attached to them solely on the basis of gender.”

In 2018, the U.S. International Trade Commission (USITC) released a working paper that also found women were harmed more by tariffs on apparel. “In 2015, the tariff burden for U.S. households on women’s clothing was $2.77 billion more than on men’s clothing,” concluded economists Arthur Gailes (UC Berkeley), Tamara Gurevich (USITC), Serge Shikher (USITC) and Marinos Tsigas (USITC). “This gender gap has grown about 11% in real terms between 2006 and 2016. We find that two facts are responsible for this gender gap: women spend more on apparel than men and women’s apparel faces higher tariffs than men’s. While the difference in spending contributes more to the overall gender gap in tariff burden, it is the difference in the average applied tariff rate that caused the gap to grow during the recent years.”

The Biden administration has maintained many of the tariffs imposed during the Trump administration. A June 2022 analysis from the Peterson Institute for International Economics (PIEE) found reducing tariffs would help consumers.

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“A 2 percentage point tariff-equivalent reduction across a broad array of goods entering the US market could deliver an estimated one-time reduction of 1.3 percentage points in CPI inflation, currently raging at 8.3 percent. That reduction would save $797 per US household.” according to PIEE’s Megan Hogan and Yilin Wang. “While it would not be practical (or even legal) for President Biden to slash tariffs by 2 percentage points across the board, the Biden administration could take many individual steps to achieve trade liberalization that is equivalent to a 2-percentage point reduction in tariffs.” (Emphasis added.)

Hatch expresses frustration with the courts. “The question remains: Is there any way for gender-based tariffs to be ruled unconstitutional through litigation? It seems strange knowing that over 200 companies have brought cases about the unconstitutionality of these tariffs, yet none of them have made it past the pleading stage allowing evidence to be uncovered.”

A National Foundation for American Policy analysis by Donald B. Cameron and Emma K. Peterson at Morris, Manning & Martin found courts have been unwilling to rule against what businesses see as executive branch overreach on trade matters. “Section 232 of the Trade Expansion Act of 1962 authorizes the president to adjust imports on the basis of national security in a way that runs counter to the principles of limited government and the role of Congress in international trade,” according to Cameron and Peterson. “The law places no limits on the president in determining what may constitute a threat to national security, the metrics examined to demonstrate such a threat and the action that could be taken after such a threat to national security is determined to exist.”

In June 2020, the U.S. Supreme Court declined to hear a complaint from the American Institute for International Steel that argued the Trump administration’s tariffs under Section 232 were an unconstitutional delegation of authority by Congress. “Both the U.S. Court of International Trade and the U.S. Court of Appeals also sided with the Trump administration in previous rulings on the case,” reported Politico.

Miranda Hatch points out that Canada addressed the gender disparity in tariffs but that given the inaction of courts, it will be up to Congress to fix the problem in the United States. Unfortunately for advocates of more liberalized trade, Congress has largely abdicated its role as a lead player on trade, according to attorneys and analysts, granting the executive branch an almost free rein on international trade matters.

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