Tariffs Are Here to Stay, Even if the Supreme Court Rules Against Trump

The Supreme Court, which will hear arguments on Wednesday about whether many of President Trump’s tariffs are lawful, could strike down a substantial portion of the president’s trade agenda. At issue is whether Mr. Trump properly used an emergency powers law to hit nearly all trading partners with tariffs.

A loss at the court would be a severe setback for Mr. Trump, who has used the emergency powers law to punish countries globally with double-digit tariffs in an effort to convince them to sign trade deals and move factories back to the United States. Yet the president has plenty of other ways to tax imports.

Multiple trade authorities exist that would allow the president to impose tariffs that are not subject to the International Emergency Economic Powers Act, or IEEPA, the law at issue in the Supreme Court case.

Trade lawyers and government officials say the administration could look to other legal provisions to cobble together a system of tariffs that could be less flexible but just as consequential as the emergency powers levies.

Some of those provisions are in use today, while others are more obscure. Together, they could be employed to impose tariffs on foreign countries or products, or even the entire globe. They could also be used to reinforce the trade deals that Mr. Trump has negotiated globally, which are based on tariffs issued under the IEEPA authority.

In a briefing Tuesday, Karoline Leavitt, a spokeswoman, said that the White House was “always preparing for plan b,” saying it would be “imprudent of the president’s advisers not to prepare for such a situation.”

“With that said, we are 100 percent confident in the president and his team’s legal arguments in the merits of the law in this case, and we remain optimistic that the Supreme Court is going to do the right thing,” she added.

Ryan Majerus, a White House adviser and Commerce Department official in the Biden administration, said that the Trump administration had used IEEPA very flexibly to adjust tariffs, and that the court decision could curtail that ability.

But the administration could use Section 122 of the 1974 Trade Act to put in place a 15 percent global tariff for 150 days, he suggested. That law says a president can impose tariffs to deal with “large and serious” balance-of-payments deficits — an issue related to trade deficits, which some of the president’s IEEPA tariffs purport to address.

In the meantime, the administration could start multiple trade investigations under a legal provision known as Section 301, said Mr. Majerus, now a partner at King & Spalding, a Washington law firm. Section 301 allows the president to issue broad tariffs in response to unfair trading practices, after first conducting an investigation.

The Trump administration used that authority in its first term to wage a trade war against China, and last month it initiated a new investigation related to China’s compliance with Mr. Trump’s first-term trade deal. Section 301 tariffs have been “battle-tested in the courts” and could be used to impose tariffs on other countries that were part of trade deals the Trump administration negotiated earlier this year, Mr. Majerus added.

“I think they’ll find a way to keep tariffs in place, even if it requires more process,” he said.

Another alternative is Section 232 of the Trade Expansion Act of 1962, which allows the president to impose tariffs on national security grounds. Those levies typically require investigations that can take several months to carry out, a period that would prevent the president from arbitrarily raising and lowering tariffs, as he has done with IEEPA.

But any resulting system of tariffs could be sweeping and more resilient to court challenges, given the court’s past deference to the president’s use of national security-related tariffs. Mr. Trump has already relied on the Section 232 authority to issue or propose tariffs on more than a third of U.S. imports, including cars, medical devices, lumber and metals, according to calculations by the Progressive Policy Institute, a Washington think tank.

Section 338 of the Tariff Act of 1930, another long-unused statute, allows the president to impose tariffs of up to 50 percent on countries that have taken discriminatory trade measures against the United States.

One legal channel has been notably absent from the list of alternatives that trade lawyers and officials typically mention: the more traditional route of conducting trade policy through Congress. Levying tariffs and taxes is officially the domain of Congress, and previous administrations mostly adjusted tariff policy by negotiating comprehensive trade deals that they then took to Congress for approval.

The Trump administration has bypassed Congress entirely by using executive authorities to issue tariffs and seal trade pacts. The issue has rankled Democrats and some Republicans, though few in Mr. Trump’s own party have been willing to clash with him in public.

But some hope that the Supreme Court case will shine a spotlight on the lack of action from Congress. Aaron Lehman, a fifth-generation farmer who grows corn, soybeans, oats and hay in central Iowa and serves as the president of the Iowa Farmers’ Union, said he was hopeful that the Supreme Court case could highlight the need for Congress to be an independent check on the president.

At a news conference on Tuesday featuring small businesses and farmers, Mr. Lehman said he was concerned about the president finding other ways to impose his tariffs. But he added that he believed the Supreme Court decision would highlight the need for Congress and elected leaders to reassert their authority, “so that we can return to a more pragmatic trade approach.”

Tony Romm contributed reporting.