Trump's Five Alternative Tariff Options if Supreme Court Strikes Down Emergency Powers
The Supreme Court may rule by January 9 on Trump's emergency tariff powers, with lower courts already finding his IEEPA use unlawful. If struck down, Trump has five alternative mechanisms: Section 232 for national security (unlimited rates, requires Commerce investigation), Section 201 for industry protection (50% cap, 8-year limit), Section 301 for trade violations (unlimited rates, requires USTR investigation), Section 122 for payment problems (15% cap, 150-day limit), and Section 338 for discrimination (50% cap, never used). Each offers less flexibility than emergency powers.

*this image is generated using AI for illustrative purposes only.
The Supreme Court could deliver a pivotal decision as early as January 9 regarding Trump's controversial use of emergency powers to impose tariffs. The court is reviewing whether the president can legally invoke emergency legislation that had never been used for import taxes, with the decision potentially included in an upcoming opinions release.
Lower courts have already determined that Trump exceeded his presidential authority by using the 1977 International Emergency Economic Powers Act (IEEPA) to justify his comprehensive "reciprocal" duties targeting America's trading partners, along with separate levies on China, Canada, and Mexico. The IEEPA tariffs remain active during ongoing legal proceedings, but an adverse Supreme Court ruling could unravel large portions of Trump's tariff program and expose the government to tens of billions of dollars in refunds.
Five Alternative Tariff Mechanisms
Despite potential legal setbacks, Trump retains access to five alternative statutory authorities for implementing tariffs, each with distinct procedural requirements and limitations.
Section 232: National Security Tariffs
The Trade Expansion Act of 1962 grants the president authority to impose unlimited tariffs on national security grounds. However, this mechanism requires a Commerce Department investigation concluding that imports threaten national security, with the Commerce Secretary having 270 days to report findings.
| Current Applications: | Details |
|---|---|
| Steel and Aluminum: | 50% tariffs resumed using 2018 investigation findings |
| Automobiles: | Levies based on 2019 Section 232 investigation |
| Copper Products: | Semi-finished and derivative products targeted |
| Active Investigations: | Multiple sectors under Commerce Department review |
Section 201: Industry Protection Measures
This 1974 provision allows tariffs when import increases cause or threaten serious injury to American manufacturers. The US International Trade Commission must conduct a 180-day investigation with public hearings and comment periods.
Key limitations include:
- Tariffs capped at 50% above existing duty rates
- Maximum eight-year duration with mandatory phase-down after one year
- Industry-specific rather than country-wide application
Trump previously used Section 201 for solar cells, modules, and residential washing machines in 2018.
Section 301: Trade Violation Response
The Office of the US Trade Representative can impose unlimited tariffs responding to discriminatory foreign trade practices or violations of international agreements. This mechanism requires USTR investigations with foreign government consultations and public comment periods.
| Notable Uses: | Scope |
|---|---|
| China Tariffs: | Hundreds of billions in imports targeted since 2018 |
| Brazil Investigation: | Trade, IP policies, and deforestation practices |
| Digital Services: | 11 jurisdictions including France and UK |
| Duration: | Four-year automatic termination unless extended |
Section 122: Balance of Payments Tool
This provision addresses "fundamental international payments problems" without requiring agency investigations. However, it imposes strict limitations:
- 15% tariff cap
- 150-day maximum duration
- Congressional approval required for extensions
- Must address "large and serious" US balance-of-payments deficits
Section 122 has never been utilized, though courts have suggested it would be more appropriate than IEEPA for trade deficit remedies.
Section 338: Anti-Discrimination Authority
The 1930 Smoot-Hawley provision enables tariffs against countries imposing unreasonable charges or discriminatory behavior against US commerce. While requiring no preliminary investigation, tariffs are capped at 50%.
This Depression-era mechanism has never been used for tariffs, and its unprecedented application could invite legal challenges. Five House Democrats introduced a resolution in March to repeal this section.
Strategic Implications
These alternative mechanisms generally provide less flexibility than IEEPA, requiring longer implementation timelines and imposing procedural restrictions. Unlike the immediate, unlimited tariffs possible under emergency powers, each alternative involves specific caps, investigation requirements, or duration limits that constrain presidential discretion in tariff policy implementation.



























