If the Supreme Court Strikes Down Trump’s Emergency-Tariff Authority, What’s Next?
Despite recent court setbacks, President Trump’s administration is far from out of legal tools to enforce tariffs. A well-timed appeal, alternate statutes, and legislative developments all shape the next phase.
1. Legal Outlook & Contingency Strategies
A. The Current Status: IEEPA Authority Likely Overturned
A federal appeals court (en banc Federal Circuit) ruled (8/29/2025) that Trump's authority under the International Emergency Economic Powers Act (IEEPA) does not empower him to impose tariffs—because such tariffs are taxes, a power constitutionally reserved for Congress
The ruling is stayed until at least October 14, pending Supreme Court review
B. Path to Supreme Court & Alternatives
The Trump administration has petitioned the U.S. Supreme Court for expedited review, potentially setting oral arguments for early November
Regardless of the outcome, if the IEEPA-based tariffs are struck down, the administration has fallback options:
Section 301 of the Trade Act of 1974 – Authorizes tariffs in response to unfair trade practices; previously used against China and the EU
Section 232 of the Trade Expansion Act of 1962 – Allows tariffs on national security grounds (e.g., steel, autos, pharmaceuticals, semiconductors after investigations)
Section 122 of the Trade Act of 1974 – Permits short-term (150-day) tariffs during substantial trade deficits
Section 338 of the Tariff Act of 1930 – Allows up to 50 % tariffs on countries allegedly discriminating against U.S. trade—though this would be unprecedented
C. Strategic Continuation and Legislative Context
The administration continues trade negotiations, possibly to leverage other statutory authorities or renegotiate deals before court rulings take full effect
Congress may respond with new oversight measures like the Trade Review Act of 2025, which would require presidential notification and congressional approval for new tariffs beyond 60 days
2. Most Likely Scenarios
Scenario A: Supreme Court Upholds IEEPA Tariffs
IEEPA-based tariffs stay in place; significant import duties under prior executive orders remain active.
Scenario B: SCOTUS Strikes Down IEEPA Tariffs—but Section 232 or Section 301 Used to Replace Them
IEEPA authority gone, but tariffs remain via:
Section 232—targeting automobiles, steel, semiconductors, pharmaceuticals, etc.
Section 301—for retaliation against unfair practices by China, EU, etc.
Section 122—short-term relief in acute deficit scenarios.
Scenario C: IEEPA Tariffs Removed, But Secondary or Industry-Specific Tariffs Introduced
Use of “secondary tariffs” under IEEPA—or via Section 232/301—to target countries trading with U.S. adversaries (e.g., India for Russian oil)
Scenario D: Tariffs Fade, New Statutory Regime Through Congressional Change
Passage of the Trade Review Act could force tariffs through Congress, limiting executive unilateral action.
3. Industries & Product Categories Most Affected
By Statute:
Section 232:
Steel, aluminum, copper (∼50 %)
Automobiles and parts (∼25 %)
Semiconductors, pharmaceuticals, processed critical minerals, trucks, aviation components (currently under investigation)
Section 301:
Broad—electronics, machinery, consumer goods from China/EU, digital services.
Section 122 (limited window):
Could universally apply across categories but only lasts 150 days.
Section 338:
High tariffs (∼50 %) possible, but targeted at nations with trade discrimination.
Additional Note:
The IEEPA-based “Liberation Day” tariffs covered nearly all imports (10 % baseline, up to 145 % on some). If removed, many consumer and industrial goods currently affected may revert to lower rates—unless replaced.
4. Which Countries Would Be Most Affected?
China, Canada, Mexico were primary targets under IEEPA and are central to legal challenges
EU and other countries may face new tariffs under Section 301 (retaliatory basis)
India could be subject to secondary tariffs, especially related to Russian oil as of September 17, 2025
For Further Reading: