Ratification buys Nothing

The Statutory Sequence the United States Skipped

RATIFICATION BUYS NOTHING

Appleton’s Clause and Effect · Barry Appleton · July 2, 2026

TL;DR: USTR has proposed a forced labour tariff reaching sixty economies, Canada among them, and prices a treaty Congress ratified the same as a handshake no Congress ever saw. That is not a technicality. It is the flaw an appellate lawyer builds a whole case around. My written comments, filed today with the U.S. Trade Representative and posted on SSRN as Ratification Buys Nothing: Comments and Testimony to the U.S. Trade Representative on the Section 301 Forced Labor Determination, lay out seven reasons the action will not survive its own record. This piece walks through all of them, briefly.

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What ratification is supposed to buy

A country has two ways to make a trade promise to the United States. It can go through Congress, submit to the domestic legislative process that turns a negotiated text into binding federal law, and accept everything that comes with that: committee hearings, a floor vote, a statute a future administration cannot quietly walk back. Or it can sign something with the executive branch alone, a bilateral settlement that exists because one administration wanted it and that the next administration can unmake with a phone call.

These are not two flavours of the same commitment. They are different in kind, and American law has always treated them that way. A country that ratifies is staking something a country that merely signs is not.

Which is what makes the proposed Section 301 forced labour action so strange. USTR’s determination, issued June 2 and reaching sixty economies at once, prices a ratified treaty obligation and an unratified executive handshake at the identical ten per cent.¹ Canada’s forced labour prohibition exists because Congress passed a statute implementing CUSMA. An Agreement on Reciprocal Trade exists because two executive branches shook hands. The action cannot tell them apart, and that is the whole argument in one sentence.

Price the ratified treaty and the revocable handshake the same, and you have told every trading partner watching this proceeding that going through Congress buys nothing a phone call would not also have bought. That is not a message the United States should want circulating among the countries it is asking to legislate.

A finding that contradicts itself before it reaches the tariff schedule

Start with the part of the determination that does not require a statute to see, only a careful read. Section III sorts the sixty investigated economies into two groups. Fifty-four, USTR finds, have neither a forced labour prohibition nor effective enforcement of one. A second group of six, Canada, Ecuador, the European Union, Indonesia, Mexico, and Pakistan, is found to have the prohibition but to have enforced it poorly.² [ii]

Two sentences later, the same section concludes that all sixty economies failed to do both.

That cannot be true of the same six economies. USTR has just found that Canada has a prohibition. Its own summary paragraph then denies the finding it made moments earlier, in the same section, on the same page. This is not a rhetorical flourish. A determination that simultaneously affirms and denies the same fact about the same six economies does not give a reviewing court the coherent factual basis Section 301 requires.³ And the contradiction is not cosmetic: the six-economy group qualifies for the lower tariff tier precisely because of the prohibition the summary paragraph says it lacks.

USTR’s own logic, turned back on the determination

Here is where the written comments do something a general reader might not expect from a legal brief: they use USTR’s own reasoning against USTR’s own conclusion, rather than arguing against it from outside.

In the same determination, USTR rejected an argument raised by nine named economies, Argentina, Bangladesh, Cambodia, Ecuador, El Salvador, Guatemala, Indonesia, Malaysia, and Taiwan, that a future commitment to prohibit forced labour should foreclose a finding against them. USTR said no. A promise to act later, it held, is not the same as a present legal prohibition, so a future commitment does not save you.⁴

That distinction resolves this case. Canada does not have a future commitment. Canada has a present, congressionally ratified prohibition, in force since 2020. The line USTR drew to reject those nine economies’ argument is the same line that places Canada, and the rest of the six-economy group, on the other side of it. My comments do not ask USTR to invent a new distinction. They ask USTR to apply the one it already used.

The sequence Congress already wrote, and skipped

This is the argument I expect to get the most questions on, so it is worth walking through slowly, because it does not rest on CUSMA at all. It rests on what Congress wrote into United States domestic law.

Section 303 of the Trade Act tells the Trade Representative what to do when a Section 301 matter involves a trade agreement and consultations do not resolve it:

“If the investigation… involves a trade agreement and a mutually acceptable resolution is not reached before the earlier of— (A) the close of the consultation period… or (B) the 150th day after the day on which consultation was commenced, the Trade Representative shall promptly request proceedings on the matter under the formal dispute settlement procedures provided under such agreement.”⁵

Shall. Not may. Not may consider. USTR’s own March notice confirms it requested consultations with Canada under this exact provision when the investigation opened.⁶ CUSMA’s own dispute chapter puts the outer boundary on those consultations at seventy-five days.⁷ Run the clock from the date consultations opened, and that deadline passed in late May, more than five weeks before I filed these comments today. Even under the more conservative reading, using the statute’s own 150-day backstop instead of the treaty’s own timeline, the deadline falls in early August, which is now only weeks away.

Under either reading, the mandatory step Congress wrote into Section 303 has not been taken. No request for CUSMA Chapter 31 proceedings against Canada has been made. The determination proceeds toward a remedy the statute says should come only after that step, not instead of it.

Ground that has stopped moving, at the worst possible moment

USTR reaches sixty economies in a single proceeding by relying on the authority to modify an existing Section 301 action, expanding it beyond the products and countries the original investigation named. Whether that authority stretches that far was the live question in a separate case, working its way toward the Supreme Court, when this proceeding opened.

It is not a live question anymore. The Court denied certiorari on June 15.⁸ That is not a ruling on the merits. It means the broadest available reading of the modification authority now stands with no further judicial check in sight, at precisely the moment USTR is relying on that reading to reach sixty economies at once, in a proceeding built on the same Section 301 delegation the Court had already described as explicit and tightly bounded when it decided Learning Resources in February.⁹ An enforcement program meant to outlast a single administration should not be built on the widest ground currently available, especially not the month that ground stopped being reviewable.

Aimed at the wrong end of the supply chain

One more defect, briefly, because it changes where the pressure should land rather than whether pressure should exist at all. The action already exempts CUSMA-qualifying goods, Section 232 goods, and critical raw materials.¹⁰ What survives that exemption, for the six-economy group, is a narrow slice of trade. The forced labour exposure that actually threatens American supply chains sits upstream of that slice, in third-country inputs like polysilicon and processed battery materials that cross several jurisdictions before a finished good ever reaches an American port. Taxing finished goods from a partner that already bans forced labour imports does not touch that exposure. It is a tariff aimed at the partner least responsible for the problem it is meant to solve.

The partner that answered before the hearing opened

My comments were substantially drafted before this happened, which is part of why it matters so much now.

Since this proceeding began, Canada tabled Bill C-35, legislation that shifts the burden of proof onto importers of designated goods, authorizes ninety-day customs detention, and lets the Foreign Affairs Minister designate specific goods, producers, and regions of concern. ¹¹ Canada’s forced labour prohibition has existed since 2020. What was missing for five years was never the prohibition. It was an enforcement mechanism that put the burden on importers rather than on the government to catch every shipment at the border. Bill C-35 is that mechanism.

I want to be precise about the record here, because overclaiming would undercut the point. Canada’s Parliamentary Secretary for Foreign Affairs said publicly that the tariff was not the principal reason for the bill’s timing and pointed instead to reforms the previous government had promised since 2024 but never delivered.¹² I take him at his word, and my comments do not need to resolve that dispute to make the argument. What is not in dispute is the pattern: five years of tariff pressure, across more than one American administration, produced no comparable legislation. This proceeding produced Bill C-35 within three months of opening.

A unilateral tariff does not produce legislation. A trading partner facing dispute settlement under a treaty with a real compliance chapter has an institutional reason to legislate. A trading partner facing only a tariff has a reason to retaliate, wait it out, or negotiate around it. Canada chose the first path before anyone forced the question.

Imposing this duty on Canada now, days after Canada delivered the specific fix the determination said it wanted, would punish the response rather than the failure that preceded it. My comments recommend that USTR treat legislation of this kind, tabled after a proceeding opens in direct answer to it, as compliance, and adjust the proposed duty once it takes effect.

What I am asking for, and what happens next

None of this asks USTR to go easier on forced labour. It asks the action to rest on a foundation that survives the scrutiny it is about to receive: a determination that does not contradict itself, a rate that respects what ratification is supposed to mean, a sequence that follows the statute Congress actually wrote, a scope that does not lean on the single most exposed reading of executive power the week judicial review of it closed, and pressure aimed at the exposure that actually threatens American supply chains.

I testify before the Section 301 Committee on July 7. The written comments this piece summarizes are filed in USTR Docket 2026-0265, and the full paper, with the complete statutory analysis and every citation, is posted on SSRN as Ratification Buys Nothing. The comment record in this proceeding closes Monday, July 6. Anyone, including those in Canada or Mexico, with a view on how this should come out still has four days to put their written views on the record.

Code before clause. Ratification should mean something, or the word stops doing any work at all.

1. Notice of Determinations and Request for Comments Concerning Actions in Section 301 Investigations of Acts, Policies, and Practices of Various Economies Related to the Failure To Impose and Effectively Enforce a Prohibition on the Importation of Goods Produced With Forced Labor, 91 Fed. Reg. 34,272 (June 5, 2026), at 34,273–74.

2. Id. at 34,274.

3. Trade Act of 1974 §§ 301(b), 304(a), 19 U.S.C. §§ 2411(b), 2414(a); see Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983).

4. 91 Fed. Reg. at 34,276 (rejecting the argument that an Agreement on Reciprocal Trade commitment forecloses an unreasonableness finding, for nine named economies with no present prohibition).

5. Trade Act of 1974 § 303, 19 U.S.C. § 2413(a)(2) (emphasis added).

6. 91 Fed. Reg. at 34,273 (confirming that on March 12, 2026, USTR requested consultations with each investigated economy, Canada included, pursuant to Section 303(a)).

7. USMCA art. 31.6.1, 31.6.4 (a consulting Party may request the establishment of a panel once 75 days have passed without resolution).

8. HMTX Industries LLC v. United States, 156 F.4th 1236 (Fed. Cir. 2025), cert. denied, No. 25-1012 (U.S. June 15, 2026).

9. Learning Resources, Inc. v. Trump (consolidated with Trump v. V.O.S. Selections, Inc.), 607 U.S. ___ (2026), No. 24-1287 (slip op. at 8) (decided Feb. 20, 2026).

10. 91 Fed. Reg. at 34,276 (Annex A).

11. Bill C-35, An Act Respecting the Prohibition on the Importation of Goods Produced Using Forced Labour, 1st Sess., 45th Parl., 2026 (Can.) (tabled June 12, 2026).

12. Steven Chase, Ottawa introduces law requiring shippers to prove imports are free from forced labour, Globe and Mail (June 12, 2026).