While his sweeping tariffs on imports have been struck down by the US Supreme Court, President Donald Trump still has options to keep aggressively taxing imports.
Tariffs have been a cornerstone of Trump’s foreign and economic policy in his second term, with double-digit “reciprocal” tariffs imposed on most countries, which he has justified by declaring America’s longstanding trade deficits a national emergency.
The full nine-judge Supreme Court bench didn’t buy Trump’s sweeping claims of authority to impose tariffs as he sees fit, delivering a 6-3 verdict against them. The top court said it was unlawful because the President acted alone, even though the US Constitution specifically gives Congress the power to tax and impose tariffs.
But that doesn’t mean that the Republican has no other options to base his tariff policy on. He can reuse the tariff powers he deployed in his first term and reach for others, including one that dates back to the Great Depression.
Now that his IEEPA option is gone, here are Trump’s other options:
Donald Trump’s tariff options after court verdict
- Countering unfair trade practices: The United States has long had a handy cudgel to wallop countries it accuses of engaging in “unjustifiable,” “unreasonable” or “discriminatory” trade practices. That is Section 301 of the Trade Act of 1974.
Donald Trump has previously made aggressive use of it himself – especially against China. In his first term, he cited Section 301 to impose sweeping tariffs on Chinese imports in a dispute over the sharp-elbowed tactics that Beijing was using to challenge America’s technological dominance. The US is also using 301 powers to counter what it calls unfair Chinese practices in the shipbuilding industry. There are no limits on the size of Section 301 tariffs. They expire after four years but can be extended.
But the administration’s trade representative must conduct an investigation and typically hold a public hearing before imposing 301 tariffs. Experts have said Section 301 is useful in taking on China. But it has drawbacks when dealing with the smaller countries that Trump has hammered with reciprocal tariffs.
- Targeting trade deficits: The US Congress specifically gave the White House limited authority to address the problem in another statute, Section 122 of the Trade Act of 1974. That allows the president to impose tariffs of up to 15 per cent for up to 150 days in response to an imbalance in trade. The administration doesn’t even have to conduct an investigation beforehand. But Section 122 authority has never been used to apply tariffs, and there is some uncertainty about how it would work.
- Protecting national security: Donald Trump has aggressively used his power under Section 232 of the Trade Expansion Act of 1962 to impose tariffs on imports he deems a threat to national security during both his current and previous terms. He had slapped tariffs on foreign steel and aluminium in 2018, levies he’s expanded since returning to the White House. He also imposed Section 232 tariffs on autos, auto parts, copper, and lumber. In September, the Republican President even levied Section 232 tariffs on kitchen cabinets, bathroom vanities and upholstered furniture.
Section 232 tariffs are not subject to law, but they do require an investigation by the US Commerce Department. It’s the administration itself that does the investigating – also true for Section 301 cases, so it has a lot of control over the outcome.
- Reviving Depression-era tariffs: Nearly a century ago, amid the US and global economies’ collapse, Congress passed the Tariff Act of 1930, imposing hefty tariffs on imports. Known as the Smoot-Hawley tariffs (for their congressional sponsors), these levies have been widely condemned by economists and historians for limiting global trade and worsening the Great Depression. They also got a memorable pop-culture shout-out in the 1986 movie “Ferris Bueller’s Day Off.”
Section 338 of the law authorises the president to impose tariffs of up to 50 per cent on imports from countries that have discriminated against US businesses. No investigation is required, and there’s no limit on how long the tariffs can stay in place.
Those tariffs have never been imposed — US trade negotiators traditionally have favoured Section 301 sanctions instead — though the United States used the threat of them as a bargaining chip in trade talks in the 1930s.
US Treasury Secretary Scott Bessent had told Reuters in September last year that the administration was considering Section 338 as a Plan B if the Supreme Court ruled against Trump’s use of emergency powers tariffs.
