From the Fraser Institute

By Scott Lincicome

The U.S. Supreme Court will soon decide the fate of the global tariffs President Donald J. Trump has imposed under the International Emergency Powers Act (IEEPA). A court decision invalidating the tariffs is widely expected—hovering around 75 per cent on various betting markets—and would be welcome news for American importers, the United States economy and the rule of law. Even without IEEPA, however, other U.S. laws all but ensure that much higher tariffs will remain the norm. Realizing that protection will just take a little longer and, perhaps, be a little more predictable.

As my Cato Institute colleague Clark Packard and I wrote last year, the Constitution grants Congress the power to impose tariffs, but the legislative branch during the 20th century delegated much of that authority to the president under the assumption that he would be the least likely to abuse it. Thus, U.S. trade law is today littered with provisions granting the president broad powers to impose tariffs for various reasons. No IEEPA needed.

This includes laws that Trump has already invoked. Today, for example, we have “Section 301” tariffs of up to 25 per cent on around half of all Chinese imports, due to alleged “unfair trade” practices by Beijing. We also have global “Section 232” tariffs of up to 50 per cent on imports of steel and aluminum, automotive goods, heavy-duty trucks, copper and wood products—each imposed on the grounds that these goods threaten U.S. national security. The Trump administration also has created a process whereby “derivative” products made from goods subject to Section 232 tariffs will be covered by those same tariffs. Several other Section 232 investigations—on semiconductors, pharmaceuticals, critical minerals, commercial aircraft, and more—were also initiated earlier this year, setting the stage for more U.S. tariffs in the weeks ahead.

Trump administration officials admit that they’ve been studying these and other laws as fallback options if the Supreme Court invalidates the IEEPA tariffs. Their toolkit reportedly includes completing the actions above, initiating new investigations under Section 301 (targeting specific countries) and Section 232 (targeting certain products), and imposing tariffs under other laws that have not yet been invoked. Most notably, there’s strong administration interest in Section 122 of the Trade Act of 1974, which empowers the president to address “large and serious” balance-of-payments deficits via global tariffs of up to 15 per cent for no more than 150 days (after which Congress must act to continue the tariffs). The administration might also consider Section 338 of the Tariff Act of 1930—a short and ambiguous law that authorizes the president to impose tariffs of up to 50 per cent on imports from countries that have “discriminated” against U.S. commerce—but this is riskier because the law may have been superseded by Section 301.

We should expect the administration to move quickly to use these measures to reverse engineer Trump’s global tariff regime under IEEPA. The main difference would be in how he does so. IEEPA was essentially a tariff switch in the Oval Office that could be flipped on and off instantly, creating massive uncertainty for businesses, foreign governments and the U.S. economy. The alternative authorities, by contrast, all have substantive and procedural guardrails that limit their size and scope, or, at the very least, give American and foreign companies time to prepare for forthcoming tariffs (or lobby against them).

Section 301, for example, requires an investigation of a foreign country’s trade and economic policies—cases that typically take nine months and involve public hearings and formal findings. Section 232 requires an investigation into and a report on whether imports threaten national security—actions that also typically take months. Section 122 has fewer procedures, but its limited duration and 15 per cent cap make it far less dangerous than IEEPA, under which Trump has repeatedly threatened tariffs of 100 per cent or more.

Of course, “procedural guardrails” is a relative term for an administration that has already stretched Section 232’s “national security” rationale to cover bathroom vanities. The courts also have largely rubber-stamped the administration’s previous moves under Section 232 and Section 301—a big reason why we should expect the Trump administration’s tariff “Plan B” to feature them.

Thus, a court ruling against the IEEPA tariffs would be an important victory for constitutional governance and would eliminate the most destabilizing element of Trump’s tariff regime. But until the U.S. Congress reclaims some of its constitutional authority over U.S. trade policy, high and costly tariffs will remain.