What Happens if the Supreme Court Rules Against Trump’s Tariffs?

SUMMARY If the Supreme Court rules against Trump’s tariff authority under IEEPA, he retains multiple alternatives. These include Section 232 for national security tariffs, Section 301 for unfair trade practices, other statutory provisions and non-tariff barriers. However, these options require more process, justification and targeted application than IEEPA’s sweeping powers. While the President wouldn’t be powerless, a ruling would restore some constitutional balance between congressional and executive authority over trade policy.

The Current Case: What’s at Stake?

The Supreme Court recently heard arguments in Learning Resources v. Trump, examining President Trump’s authority to impose sweeping tariffs on nearly every country in the world. The case challenges the President’s use of IEEPA, the International Emergency Economic Powers Act, a 1977 law designed for national emergencies—to impose broad tariffs based on trade deficits.

The administration’s position is straightforward: the power to “regulate” imports includes the power to tax them through tariffs. According to reports from the hearing, justices from across the ideological spectrum weren’t buying it, expressing deep skepticism about claims of unlimited presidential tariff power.

So what happens if the Court rules against the President? Would he be powerless to pursue his trade agenda? Not remotely. Let’s take a walk through the legal landscape.

The Constitutional Question at the Heart of This Case

Legal challengers and several justices have raised a fundamental concern: Congress—not the President—holds constitutional authority over taxation and foreign commerce. As Justice Elena Kagan emphasized during arguments, Congress has “the power to impose taxes, the power to regulate foreign commerce”—powers the Constitution explicitly grants to the legislative branch, not the executive.

The stakes extend far beyond tariffs. If the administration’s interpretation of IEEPA prevails, any future president could declare a climate emergency, a public health emergency, or virtually any other crisis and unilaterally impose massive taxes on Americans through tariffs. That’s a degree of executive power that would fundamentally reshape our constitutional structure.

Option 1: Work With Congress

So what happens if the Court rules against the President?

The most straightforward path would be seeking explicit congressional authorization. The Constitution gives Congress the power to “regulate Commerce with foreign Nations” and to “lay and collect Taxes, Duties, Imposts and Excises.” If Congress passes legislation authorizing specific tariffs, that would definitively resolve any constitutional concerns.

This approach has precedent. Throughout American history, major tariff policies have typically come through congressional action. These include the Tariff Act of 1930 (Smoot-Hawley) and various trade reform measures. Congress could pass legislation granting the President new or expanded tariff authority, potentially with specific parameters and limitations.

The political challenge, of course, is that this requires convincing majorities in both the House and Senate, and this is a potentially time-consuming process that doesn’t guarantee the President gets everything he wants.

Option 2: Section 232 – National Security Tariffs

Section 232 of the Trade Expansion Act of 1962 remains one of the President’s most powerful tariff tools. This provision allows the President to impose tariffs on imports that threaten national security, following an investigation by the Commerce Department.

The Trump administration has already been actively using this authority. According to the Department of Commerce, President Trump imposed 25% tariffs on steel and 10% on aluminum under Section 232 in his first term, and has expanded these measures in his second term. The administration has initiated nine new Section 232 investigations covering products from polysilicon to pharmaceuticals.

What would make Section 232 particularly attractive as a fallback option? Several factors:

Broad definition of “national security”: The statute doesn’t define “national security,” giving the administration significant flexibility. The White House has argued that “economic security is national security,” allowing it to justify tariffs on economic grounds.
Judicial deference: Courts typically defer to the executive branch on matters of national security, making these tariffs harder to challenge legally than the IEEPA-based measures.
Executive control: The Commerce Department—part of the executive branch—conducts the investigation and makes the determination, giving the administration substantial control over the process and outcome.

As one analysis notes, “more than a third of U.S. imports, including steel, aluminum, cars, machinery and medical devices, are subject to import taxes under Section 232.”

The limitation? Section 232 requires an investigation process and must be tied to specific industries or products. You can’t simply declare all imports from all countries a national security threat; you must take a sector-by-sector approach.

Option 3: Section 301 – Unfair Trade Practices

Section 301 of the Trade Act of 1974 provides another avenue for imposing tariffs. This law authorizes the U.S. Trade Representative to investigate and respond to unfair foreign trade practices, including intellectual property theft, forced technology transfer, or discriminatory policies.

The Trump administration extensively used Section 301 during the first term, imposing tariffs ranging from 7.5% to 25% on approximately $370 billion worth of Chinese imports; tariffs that largely remain in effect today. The Biden administration maintained these measures and even expanded them in some areas.

Section 301 has advantages:

Targeted approach: Unlike IEEPA’s blanket emergency powers, Section 301 focuses on specific unfair practices, which courts may view more favorably.
Established precedent: There have been 130 Section 301 cases since 1974, providing a well-developed body of practice.
Investigatory framework: The U.S. Trade Representative conducts formal investigations, gathering evidence of unfair practices before imposing tariffs.

The challenges? Section 301 is more time-intensive than emergency declarations. As one expert noted, “undertaking dozens and dozens of 301 investigations of all of those countries is a laborious process.” Each investigation can take months, and the administration would need to document specific unfair practices for each country targeted.

Option 4: Other Statutory Authorities

The President has at least two other, less-used tariff tools:

Section 122 of the Trade Act of 1974: This provision allows the President to impose tariffs of up to 15% for up to 150 days in response to trade imbalances, without even conducting an investigation first. However, this authority has never been used to impose tariffs, so there’s uncertainty about how it would work in practice.
Section 338 of the Tariff Act of 1930 (Smoot-Hawley): This obscure provision authorizes tariffs of up to 50% on imports from countries that discriminate against U.S. businesses, with no investigation required and no time limit. It’s never been used, but it remains on the books.

Option 5: Regulatory and Non-Tariff Barriers

Even without formal tariffs, the administration has tools to make imports more difficult or expensive:

Customs enforcement: Stricter application of existing rules, more intensive inspections, and aggressive enforcement of anti-dumping and countervailing duty laws.
Product standards and regulations: New safety, environmental, or technical standards that foreign producers must meet.
Voluntary export restraints: Negotiating with other countries to “voluntarily” limit their exports to the U.S.—a tactic that functions similarly to quotas without being formal trade restrictions.

The Practical Constraints

However, there may be the real-world limitations on presidential power here. While the President has multiple tools available, each comes with constraints:

Legal vulnerability: Any tariff action can be challenged in court. Multiple courts have already ruled against the IEEPA tariffs, and aggressive use of other statutes could face similar challenges.

Political costs: Tariffs are taxes paid by American importers and often passed on to consumers. Public pressure from affected industries and consumers can constrain even legally permissible actions.

International retaliation: Other countries can impose retaliatory tariffs on U.S. exports, potentially harming American farmers, manufacturers, and workers. China imposed retaliatory tariffs in 2018 in response to Section 301 actions.

Constitutional boundaries: The Supreme Court remains the final arbiter of constitutional questions. If the Court rules that certain tariff actions exceed presidential authority, defying that ruling would trigger a constitutional crisis.

The Bottom Line

Even if the Supreme Court rules against the President’s IEEPA tariffs, he’ll retain substantial authority to pursue tariff policies through other legal channels. As Georgetown trade law professor Kathleen Claussen told reporters, “It’s hard to see any pathway here where tariffs end. I am pretty convinced he could rebuild the tariff landscape he has now using other authorities.”

The key difference is that these alternative approaches require more process, more justification and more targeted application. They don’t provide the sweeping, immediate authority that IEEPA appears to offer. Each investigation takes time. Each action faces potential legal challenge. Each tariff must fit within statutory requirements.

In other words, a Supreme Court ruling against the IEEPA tariffs wouldn’t render the President “defenseless” in his tariff policy, but it would restore at least some of the constitutional balance between congressional and presidential power that the Framers intended. The President would still have tools to address unfair trade practices and national security concerns. He’d just need to use them within the bounds that Congress has established, with the checks and balances that make our constitutional system work.