Can Trump keep his tariffs if the Supreme Court invalidates them?

Alan Wolff ()
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Alan Wolff: Peterson Institute for International Economics

No PB26-5, Policy Briefs from Peterson Institute for International Economics

Abstract: The Trump administration's trade team has vowed to employ alternative legal strategies to keep its high tariff wall in place if the Supreme Court invalidates President Trump's sweeping "reciprocal tariffs" by striking down his use of the International Emergency Economic Powers Act (IEEPA) to impose them. Wolff reviews the four possible tariff statutes that could be invoked-- Sections 122, 338, 301, and 232--but they have major limitations. Each is either narrow, temporary, or specific, compared with IEEPA, and cannot be used to recreate Trump's across-the-board tariff wall. Key Takeaways The administration's next moves will depend on how the Supreme Court defines the president's "emergency" powers to impose tariffs. Tariffs imposed under section 122 have to be justified by a serious balance of payments problem and expire after 150 days unless Congress extends them. Section 338 has not been invoked in 100 years and requires strong proof of discrimination against American goods. Two other familiar statutes can be used only selectively but require findings of unfair foreign trade practices (section 301) or threats to national security (section 232).

Date: 2026-01
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