Trump Has Many Options if the Supreme Court Strikes Down Tariffs

That will not mean that the country’s long national nightmare will have come to an end. There are a number of alternative statutes that the administration could rely on to issue arbitrary tariffs instead of IEEPA. On the bright side for the administration—but not the country—the administration could likely use those instruments to raise similar amounts of revenue to what it is collecting now. Legal challenges would certainly follow, but the administration would be on firmer statutory ground than IEEPA has provided. The relatively good news would be that statutory guardrails might keep it from taxing imports in the rapidly fluctuating manner in which it has deployed the IEEPA tariffs.

An administration loss at the Supreme Court would have direct implications for two sets of IEEPA tariffs: the so-called “reciprocal tariffs,” first announced in April, and the tariffs imposed on Canada, China, and Mexico in an alleged effort to force those countries to act against fentanyl flows.

Depending on the court’s reasoning, the decision could also have implications for a set of other tariffs imposed under cover of IEEPA, such as those levied on imports from Brazil to aid former President Jair Bolsonaro’s efforts to avoid prosecution for an attempted coup and those imposed on India as punishment for its Russian oil imports. Total IEEPA tariffs vary from 10 percent to 50 percent (for India and Brazil) but are at or below 15 percent for most countries.

Yet even removing all the IEEPA tariffs would still leave the United States with high import duties by the standards of recent decades, as a number of tariffs justified on the basis of other statutes would remain in place.

The first Trump administration imposed tariffs—usually of 25 percent—on some two-thirds of imports from China under Section 301 of the Trade Act of 1974. The Biden administration kept these measures largely intact and used the existing authority to layer on other tariffs, including 100 percent duties on Chinese electric vehicles. Most of these tariffs continue to this day. Because of these Section 301 measures, the effective tariff on imports from China remains particularly high—around 50 percent.

Section 232 tariffs would also survive an administration loss in Learning Resources v. Trump. Under Section 232 of the Trade Expansion Act of 1962, the president may restrict imports determined to pose a threat to national security following an investigation by the Commerce Department. The second Trump administration has substantially expanded national security tariffs to a variety of goods in recent months: cars and car parts; copper; lumber; an array of products made with steel and aluminum, such as washing machines, office furniture, and refrigerators and freezers. More are expected to come, including semiconductors, pharmaceutical goods, critical minerals, and others.

Importing these products does not pose a genuine national security risk to the United States, but courts have been exceedingly deferential to the administration’s claims. Congressional efforts to circumscribe the president’s unilateral authority to impose national security tariffs have floundered.

In combination, this year’s Section 232 tariffs raise about as much revenue as the IEEPA tariffs (as they currently stand after a whirlwind of changes from early April).

If the Supreme Court were to ultimately reject the administration’s sweeping interpretation of IEEPA, Trump has other protectionist tools at his disposal, as Kevin Hassett, the chair of the Council of Economic Advisors, recently noted during an interview with Bloomberg’s David Rubenstein.

Given the president’s misguided obsession with the trade deficit, the administration could turn to Section 122 of the Trade Act of 1974. That provision empowers the president to address “large and serious” balance-of-payments deficits through import surcharges of up to 15 percent, import quotas, or some combination of the two.

The administration could replicate the IEEPA tariff structure through Section 122 (except for those countries with rates of more than 15 percent, which would be reduced to that rate), and it could do so immediately. Such a structure would collect about 70 percent of the revenue currently coming in through the IEEPA tariffs.

But the statute comes with certain guardrails—principally, that any action taken under Section 122 expires after 150 days unless Congress affirmatively votes to extend it. As the IEEPA case has demonstrated, the Trump administration has shown a willingness to interpret statutes very broadly (to put it mildly).

In theory, the president could reimpose Section 122 tariffs for another 150 days immediately after the initial period lapses, without an affirmative vote from Congress. This tactic would contravene the spirit—if not the letter—of the law, raising serious questions about the separation of powers and the statute’s original intent—and exposing the administration to more legal challenges.

In its 50-plus year history, the law has also never been used to impose trade restrictions. Notably, Congress conceived Section 122 authority as a tool to stabilize exchange rates, not as a pretext for economic protection. In fact, the statute requires the existence of “fundamental international payments problems,” which makes little sense outside a context of fixed or managed exchange rates, such as the early-1970s setting in which Section 122 originated.

The same law’s Section 301—the basis for existing China tariffs—offers another avenue for reconstructing IEEPA tariffs, one where the president enjoys wide unilateral authority. It grants the U.S. trade representative (USTR) broad authority to investigate and remedy “unfair” foreign trade practices. That’s a capacious term encompassing everything from trade agreement violations to foreign trade practices that are “unreasonable” and burden U.S. commerce. This was intended to be a tool to pry open foreign markets, but these days, market access takes a backseat to protectionism.

Section 301 investigations and actions must target specific trading partners (i.e., China or the European Union) for their allegedly unfair practices. On the surface, Section 301 comes with genuine procedural requirements. The USTR must conduct an investigation and publish its findings. If an affirmative determination is made, then the USTR is required to request consultations with the targeted trading partner and pursue formal dispute settlement when a trade agreement violation is alleged.

Yet the Section 301 guardrails are thinner than they appear on first blush, particularly in government-initiated cases. Under the statute, the USTR—and by extension, the president—has plenary discretion to determine whether an issue falls under a trade agreement and may act unilaterally when concluding that it does not. The consultations and dispute settlement can be largely perfunctory, and the law, as currently understood in self-initiated cases, permits massive trade restrictions.

Section 301 actions can also persist indefinitely as long as a domestic beneficiary requests the continuation of the tariffs every four years. Consequently, it would be straightforward to use Section 301 actions to reconstruct the parts of the IEEPA tariff structure that cannot be replicated with Section 122 measures—perhaps not immediately but certainly after a few months.

Though Section 301 is more flexible than other statutes, such extensive use of the law may trigger renewed judicial scrutiny. Especially after the 2023 Loper Bright decision, in which the Supreme Court reduced the amount of deference owed to agency interpretations of the law, the courts may be willing to overrule Section 301 actions that are based on clearly unreasonable concerns around purported unfair trade practices.

Alternatively, the administration may decide to continue expanding its use of Section 232 measures to replace the IEEPA tariffs that cannot be replaced by Section 122 measures. As Section 232 tariffs are based at least nominally on national security grounds, they will be less vulnerable to judicial review. That said, the statute lends itself better to sectoral or product-specific trade measures. It would be difficult to build a compelling case that all imports from Brazil and only from Brazil pose a national security threat. Were the administration to rely on this statute, it will likely be easier to match current IEEPA revenue than the precise rate structure.

A less likely route, and one that may not play well electorally, is to rely on Section 338 of the Tariff Act of 1930—the infamous Smoot-Hawley Act, which is often blamed for worsening the Great Depression and is the one trade statute that at least some voters are familiar with. Section 338 is a precursor to Section 301 and was arguably supplanted by that latter provision, though it remains on the books. It lets the president impose tariffs of up to 50 percent on imports from countries that “discriminate” against U.S. commerce as compared to other nations.

The statute’s limitations are relatively modest. Private parties or the executive branch may petition the U.S. International Trade Commission (USITC) to initiate an investigation. Proving discrimination could be challenging for the Trump administration when targeting World Trade Organization members that are bound by “most favored nation” requirements. Unilateral action by the ever-protectionist Trump administration could invite legal challenges arguing that the president lacks authority to impose restrictions without the trade commission’s involvement, or that the statute’s foreign discrimination requirements have not been met.

If the Supreme Court strikes down the IEEPA tariffs, the critical question becomes which alternative authorities the administration will deploy. Unfettered use of Sections 122 and 338 would recreate the current predicament: the president continuing to make major changes to tax policy and the business environment at his whim, generating paralyzing uncertainty, and redistributing massive amounts of resources without express congressional authorization.

The outlook improves somewhat if the administration must instead rely on sectoral “national security” tariffs under Section 232 and country-specific tariffs under Section 301, particularly if courts are less deferential to implausible claims about national security threats or unfair trading practices.

But meaningful reform requires Congress to rein in presidential authority—judicial constraints alone likely won’t suffice.