Tariffs After the Midterms: What Congress Can and Can’t Do?

Tariffs After the Midterms: Not soon. Democrats won both chambers on 3 November 2026, but today’s tariffs do not depend on Congress, and President Trump still holds the veto. Overriding a veto takes 67 senators and 290 House members. The strongest check on tariffs so far has come from the courts, not from Capitol Hill.

The new Congress can hold hearings, subpoena documents and use its spending power, but it cannot simply switch the tariffs off. Plan for elevated tariffs through at least 2027, and watch the courts and the January spending fights.

How We Got Here? (The Tariff Timeline)

The current tariff system was rebuilt in 2026 after the Supreme Court removed the original legal basis. This sequence matters because each step used a different law with different rules.

What Tariffs Are in Force Right Now?

Section 301 forced-labor tariffs. USTR announced final action on 23 July 2026. The duties cover 60 economies that USTR says account for 99.4% of U.S. imports. Nineteen economies pay 10%, including India, Canada, Mexico, the United Kingdom, Indonesia and Bangladesh. The European Union and Taiwan pay 10% net of normal duties. Forty-one economies pay 12.5%, including China, Brazil, Vietnam, Thailand, Singapore and the Philippines. Japan, South Korea and Switzerland pay 12.5% net of normal duties. Brazil also faces a separate 25% Section 301 tariff announced in July, which stacks to 37.5%.

The action does not apply to goods already under Section 232 tariffs, to USMCA-qualifying goods from Canada and Mexico, to certain textile goods under specific trade agreements, or to products listed in the annexes of the Federal Register notice.

• Section 232 tariffs. These sector tariffs on items such as steel, aluminum and autos were not touched by the Supreme Court ruling and remain in place.
• Section 338 tariffs on Canada. A 50% duty applies to a list of Canadian goods covering roughly $20 billion a year, according to law-firm analysis. Trump changed the product list on 8 September and again on 23 October, with the latest changes effective 30 October. It is the first time a president has used this 1930 law to impose tariffs.
• Section 122. The temporary 10% global tariff lapsed on 24 July because Congress did not extend it. Section 122 allows up to 150 days unless Congress votes to extend.

Trade deals also matter. Many countries secured non-binding tariff caps tied to ongoing negotiations, and Baker McKenzie notes these rates remain in flux and depend on each partner meeting its commitments.

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What Congress Can Do?

Congress holds the constitutional power over tariffs, but it has delegated much of it by statute. After the election, experts describe a set of real but limited tools:

• Oversight and subpoenas. Baker McKenzie expects hearings on how tariffs raise consumer prices, plus scrutiny of the IEEPA refund process and of investment agreements tied to trade deals.
• Appropriations leverage. A spending bill can include limits on what agencies like Customs and Border Protection may do. Analysts say a funding fight is likely to be a major vehicle for these demands.
• Rewriting the statutes. Congress can narrow Sections 232, 301, 122 and 338, since it wrote them. Bills have been proposed, including the bipartisan Trade Review Act (introduced in 2025 by Sens. Maria Cantwell and Chuck Grassley), which would require notice to Congress within 48 hours of new tariffs and let them expire after 60 days unless a joint resolution approves them. Sen. Ron Wyden has proposed requiring congressional approval for new tariffs and trade agreements.
• Confirmations and treaties. The Senate approves nominees and any major trade agreement, which gives Democrats additional leverage.

What Congress Cannot Do?

The obstacle is arithmetic. Reuters reported on 4 November that a veto override needs 67 senators and 290 House members, and Democrats are projected to hold about 54 Senate seats, with up to two more depending on races in Mississippi and Alaska. Even a bill to end a specific tariff would need Republican votes to override a veto. William Reinsch of CSIS has said neither party will have a veto-proof majority in any scenario.

EY’s Blake Harden told Reuters that the election is very unlikely to have a significant impact on the trade agenda because so much authority sits in the executive branch. Eversheds Sutherland’s Mark Herlach said it is highly unlikely Congress could amend these laws in a way that limits the president, because he can still veto.

Politics could still shift. An election-day survey cited by Euronews found about two-thirds of voters said Trump’s tariffs had hurt the economy, and some Republicans have distanced themselves from the Canada tariffs. Trump told Politico he does not want to spend two years vetoing everything and said he is willing to work with Democrats. None of this changes the legal position, but it could matter in a negotiation.

Why the Courts Matter More Right Now?

Baker McKenzie calls the courts the primary legal check over the next six to twelve months. Four cases stand out:

1. Section 301 forced-labor tariffs. A three-judge CIT panel heard arguments on 30 September in the consolidated In re Section 301 Forced Labor Cases. Small business groups and 25 states are suing. The court asked both sides for more written argument on five questions and has not ruled. Importers must keep paying while the case continues. Plaintiffs argue the tariffs are a pretext for the IEEPA tariffs the Supreme Court struck down. Section 301 and Section 232 remain the most legally durable authorities, according to Baker McKenzie.
2. Section 338 tariffs on Canada. Gellert Global Group v. Trump, filed 20 October, argues that Section 301 superseded Section 338 and that collection began before the law’s 30-day waiting period ended for some products.
3. Section 122 appeal. The Federal Circuit stayed the CIT judgment, and no Section 122 refunds are payable beyond three plaintiffs as of the latest reports I found.
4. IEEPA refund appeal. The government appealed the CIT refund order to the Federal Circuit on 2 June, focusing on entries that were finally liquidated.

One caution from trade lawyers: if the administration loses on one authority, it may move to another, as it did after February.

The IEEPA Refund Picture

The tariffs the Supreme Court struck down are being paid back, but to importers, not consumers.

Shoppers who paid higher prices at the store do not receive a direct refund, and reports describe only lawsuits so far, with no settlements.

What to Watch Next?

What This Means for You?

• Consumers. Expect prices on imported goods to stay elevated. Tariffs are a tax paid at the border by importers, and how much reaches shelf prices varies by product.
• Importers and small businesses. Preserve refund rights, track your entries, and monitor the pending Section 301 and 338 cases. Baker McKenzie recommends planning for persistently elevated tariffs and reviewing tariff-risk clauses in contracts.
• Exporters to the U.S., including from India. India is on the 10% list under the forced-labor action, subject to the annexes. Check your product codes in the Federal Register notice and with a customs adviser.
• Everyone. Treat claims that tariffs will end next month with caution. The rates can change by a new USTR action or a court order, not by the election alone.

Official Sources & Links

Disclaimer

This article (Tariffs After the Midterms) is for information only and is not legal, trade or financial advice. I am not a lawyer or financial adviser. Tariff rates, court cases and election counts were changing as of 5 November 2026. Confirm rates and product coverage in the official Federal Register notices and with a licensed customs broker or trade lawyer before acting

Tariffs After the Midterms – Frequently Asked Questions

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