U.S. Mid-Term Rout Unlikely to Change Trump’s Trade Policy

The premier of Ontario, Canada, might have been “doing cartwheels down the street” on the morning after the November 3 U.S. mid-term elections, which produced a historically large swing towards Democrats in the House, the Senate and many other elected roles across the country. But his hopes that the flood of new lawmakers into Congress might somehow bring a sea-change in President Donald Trump’s trade policy are likely to be dashed on the rocks of constitutional law.

True, while “major” trade treaties (such as the U.S.-Mexico-Canada agreement) cannot be ratified without the Senate’s consent, and Senators also confirm presidential appointments to office, such as the U.S. Trade Representative and justices of the Supreme Court, the current administration has taken full advantage of the various tariff-reduction or negotiation powers being delegated to the executive branch via statutes.

Explained: How Trump Can (Try to) Impose Tariffs

Arguably, the political shifts could create a more favorable environment for Ottawa to get the best deal from the U.S. now that trade talks are back on. But the looming January 1 deadline for a raft of fresh, punitive tariffs being imposed on U.S. imports from Canada remains. Other countries with hopes of loosening the shackles Trump has put on international trade should take heed, too, of the disappointment that followed close on the heels of the dramatic U.S. Supreme Court decision in February 2026, when it overturned Trump’s tariffs issued under the International Emergency Economic Powers Act (IEEPA). More, different tariffs, under different laws, quickly followed. And these ones, so far, have stuck. Meanwhile, the USMCA is currently in legal limbo beyond where Congress can reach, neither canceled, renegotiated nor entirely reliable. Bottom line: Trump is still the president, with extensive powers to impose whatever tariffs he pleases.

So cartwheels of joy are definitely premature. “I don’t think one should assume tariffs are going away,” says Mark Herlach, global co-chair of competition, trade and foreign investment at law firm Eversheds Sutherland. “It’s highly unlikely that Congress could amend those laws in a way that would limit the president’s power,” reasons Herlach. “He still has the power of veto.”

Jennifer Schwesig, partner and leader for Armstrong Teasdale law firm’s international practice, puts a slightly different slant on the issue. “IEEPA was the one tool with no investigation, no cap and no time limit. Once it was gone, the administration had to rely on statutes that, in some cases, need Congress to act at the end,” she says. However, there’s that unavoidable power of veto the President wields. And “litigation is a slow and narrow check. Courts have been very deferential on national security findings under Section 232 [of the Trade Expansion Act of 1962],” she adds. Herlach points to the ongoing legal challenges to tariffs brough under Section 301 of the Trade Act of 1974 in the Court of International Trade. That judgement has been slow in coming and, whatever it turns out to be, it will almost certainly be subject to further legal challenges.

It seems reasonable to think that something has to be different now, after this major upheaval in the political landscape of the largest economy on earth. “With Democrats taking both the House and Senate, Congress has more leverage to scrutinize tariffs and push for targeted relief,” argues Nishith Rastogi, chief executive technology officer of  logistics and supply chain software provider Locus.

But don’t hold your breath. “I would not expect that to change this holiday season’s shipping plans or costs,” says Rastogi. The real question, he says, is whether anything changes over the next six months that affects retailers’ next round of orders. Retailers are in a difficult timing position. If they delay replenishment, and relief does not arrive in time, they may pay the same duties plus a premium to move inventory quickly. “If they import now and duties fall later, they may have paid more than competitors that waited, but they will be better positioned to keep products in stock,” he says.

Then again, oversight powers mean lawmakers could challenge tariff policy via the power they hold over the government purse, or by using committee investigations. “The most effective thing they could do is to pass a law to limit presidential authority, but I think that is highly unlikely,” says Herlach. “You’d need a pretty strong consensus that something had to change.”

And there’s the rub, because whether or not tariffs are a good idea depends more on localized circumstances than political affiliation.  If you’re representing a state or a congressional district with lots of manufacturers who rely on imported products that aren’t or can’t be produced domestically, tariffs may represent a barrier to viable business. But if your constituency includes a big steel industry component, say, tariffs protect American jobs. “It’s a cliché, but it’s true; all politics are local,” says Herlach. So there’s unlikely to be a widespread, united effort by the Democrats taking their seats January 1 to do away with tariffs, which leaves individual representatives fighting their corner against a set of formidable legal obstacles.

One change that would benefit the global supply chain, if the incoming Democrats put their shoulder to the wheel: the war in Iran. “Congress can also increase pressure over the conflict in Iran,” says Rastogi. Even then, it’s hard to hope for immediate relief. “Any easing in diesel prices would take time to reach carrier rates,” he admits.

In the end, much depends on coordinated political will. “Congress will have to collectively make some decisions about where their priorities lie during this lame duck period; where they want to put their time and effort,” says Herlach. “One might assume that other issues, like inflation, will be front and center, and tariffs are a part of that, so might be part of that push. But Congress would need the votes, and it’s unclear that they would [get them].”

So, maybe joyful exuberance belongs more at post-election parties than in the boardroom, at least for now.

“I don’t think we’ll see a significant change to this administration’s approach to tariffs, since it’s been such a signature approach. Looking at what this administration has done in the first two years, they’ve constantly pushed the envelope as regards presidential power over trade policy. What happened [on November 3] may simply not be very interesting from a trade tariff perspective,” concludes Herlach.

One small caveat, from Herlach. “It will be interesting to see how our trading partners react, because they have all these bilaterial trade agreements,” he says. “Maybe they’ll re-evaluate what kind of concessions they are willing to make given this election, but that will be case by case basis and depend on a lot of factors.”