What will Trump do if the Supreme’s knock down his tariff power grab? (I think this may be one of the few places where they buck his authority. Lot’s of important people’s money is at stake and we know how they feel about that.)
Aides have spent weeks strategizing how to reconstitute the president’s global tariff regime if the court rules that he exceeded his authority. They’re ready to fall back on a patchwork of other trade statutes to keep pressure on U.S. trading partners and preserve billions in tariff revenue, according to six current and former White House officials and others familiar with the administration’s thinking, some of whom were granted anonymity to share details of private conversations.
“They’re aware there are a number of different statutes they can use to recoup the tariff authority,” said Everett Eissenstat, former deputy director of the White House’s National Economic Council during Trump’s first term. “There’s a lot of tools there that they could go to to make up that tariff revenue.”
The contingency planning underscores how much is at stake for Trump, who has used the International Emergency Economic Powers Act, a 1977 law designed for national emergencies, to impose tariffs on nearly every U.S. trading partner — the foundation of his second-term economic agenda. The justices will weigh whether the law gives the president broad power to impose economic restrictions — or whether Trump has stretched it beyond what Congress intended.
If the court curtails that power, it could upend not only the White House’s “America First” trade strategy but also the global negotiations Trump has leveraged it to shape.
The article goes into how the court could upend a whole lot of Trump’s economic and foreign policy (by simply reading the clear meaning of the Constitution!) but from my perspective it doesn’t really seem like that big of a deal. Everything is already chaotic so unwinding it wouldn’t make it any worse.
Here are the contingency plans, such as they are:
Aides concede that other tariff authorities are not a “one-for-one replacement” for the emergency law, though they confirmed they are pursuing them.
In fact, the White House has already laid some of the policy groundwork under those authorities, such as the 1970s-vintage Section 301, which the U.S. used against China in Trump’s first term, or the Cold War-era Section 232, which allows tariffs on national-security grounds.
The administration has launched more than a dozen 232 investigations into whether the import of goods like lumber, semiconductors, pharmaceuticals and critical minerals from other countries impairs national security. Since January, Trump has used that authority to impose new tariffs on copper, aluminum, steel and autos.
It has also opened a 301 investigation into Brazil’s trade practices, including digital services, ethanol tariffs and intellectual property protection. It’s a model officials say could be replicated against other countries if the court curtails IEEPA — and could be used to pressure countries into reaffirming the trade deals that they’ve already negotiated with the United States, or to accept the rates that Trump has unilaterally assigned them.
But those tools come with challenges: Section 301 investigations can take months to complete, slowing Trump’s ability to impose tariffs unilaterally or tie them to unrelated goals like ending the war between Russia and Ukraine or stem the flow of fentanyl across the U.S. border.
Section 232 offers broad discretion to impose tariffs on national-security grounds, but because the levies are sector-based, they are typically applied across a product category, limiting Trump’s ability to pressure individual countries.
And imposing new duties on global industries like semiconductors or pharmaceuticals, as Trump has threatened, could upend recent agreements the administration has reached with trading partners, especially China, which negotiated a trade truce last week.
“This detente may have weakened the president’s resolve to go forward with the 232s. We’re worse off than we were,” a second person close to the administration said.
The U.S. has already promised to delay fees on Chinese vessels arriving at U.S. ports following the conclusion of a Section 301 investigation on China’s shipbuilding practices as a result of the Thursday meeting between Trump and Chinese leader Xi Jinping. The U.S. also agreed to delay an investigation into China’s adherence to its trade deal from Trump’s first term.
Section 122, meanwhile, allows only short-term tariffs of up to 15 percent and for no more than 150 days unless Congress acts to extend them — a narrow clause meant to address trade deficit emergencies. The authority could potentially serve as a bridge between an adverse court ruling and new duties Trump wants to put in place using other authorities.
Then there’s Section 338 — a rarely used provision that’s been on the books for nearly a century. In theory, it could let Trump swiftly impose tariffs of up to 50 percent on any country, if he can explain how they are engaging in “unreasonable” or “discriminatory” actions that hurt U.S. commerce. Section 338 does not require a formal investigation before a president can impose tariffs, but would likely face similar legal challenges.
Yeah, whatever. Anything to stop Trump from seizing more unilateral power.
Meanwhile, some people think he should just go through Congress the way the Constitution says he must. But the Senate has surprisingly taken a small stand against that:
At least four Republicans are openly opposed to the global tariffs — bucking Trump in a series of symbolic votes last week. And it’s unclear whether there’s appetite for a vote on Trump’s tariffs in the House, which has been shielded from weighing in on the tariffs until the end of January, after Republican leadership blocked votes on Trump’s national emergencies.
We live in hope.