Economy

Supreme Court Challenge: How Trump Plans to Keep Tariffs in Place Despite Legal Hurdles

Trump faces tariff challenges. He plans to use other laws if SCOTUS rules against his current ones.

byEditorial Staff

November 7, 2025, 8:42 AM

President Trump with a serious expression sitting in the Oval Office to sign an order.

President Trump, looking serious, prepares to sign an order in the Oval Office. By Brian Jason / Shutterstock.com.

Executive Summary

The Supreme Court is scrutinizing President Trump’s expansive tariffs, particularly those imposed under the International Emergency Economic Powers Act, with both liberal and conservative justices raising concerns.

President Trump has stated he has a “game two plan” to implement tariffs through alternative authorities, anticipating a potential Supreme Court invalidation of current tariffs.

Economists expect the administration to use other legal frameworks like Sections 122, 232, 301, and 338 to impose substantially similar tariffs, shifting the legal basis rather than the existence of the levies.

The Story So Far

President Trump’s expansive tariffs, many of which were imposed under the International Emergency Economic Powers Act, are currently facing legal challenges at the Supreme Court, raising concerns about their legality. However, President Trump has indicated a strong commitment to maintaining a tariff-based economic agenda, preparing to utilize alternative legal authorities to implement “substantially similar tariffs” should the Supreme Court invalidate the current legal basis.

Why This Matters

Despite the Supreme Court potentially invalidating some of President Trump’s current tariffs, the administration is expected to utilize alternative legal frameworks to impose “substantially similar” duties. This means the economic impact of these tariffs, which have already generated nearly $90 billion from American importers, is likely to persist, though under a different legal basis that could introduce new procedural requirements or international trade risks.

Who Thinks What?

President Trump believes a potential Supreme Court ruling against his tariffs would be “devastating for our country” but indicates he possesses a “game two plan” to implement tariffs through alternative authorities.

Supreme Court justices, both liberal and conservative, have raised concerns about the legality of President Trump’s tariffs imposed under the International Emergency Economic Powers Act, signaling a potential invalidation of those tariffs.

Economists from Goldman Sachs anticipate that even if the Supreme Court invalidates the current basis for tariffs, the administration would likely use other legal frameworks to impose “substantially similar tariffs,” suggesting minimal change in the tariffs’ existence for large trading partners.

President Donald Trump’s most expansive tariffs are facing significant legal challenges at the Supreme Court, with both liberal and conservative justices raising concerns about their legality during a recent hearing. President Trump stated on Thursday, November 6, 2025, that a loss in the case would be “devastating for our country,” but indicated he possesses a “game two plan” to implement tariffs through alternative authorities.

The Supreme Court hearing on Wednesday, November 5, 2025, signaled a potential invalidation of tariffs imposed under the International Emergency Economic Powers Act. This law has been the basis for many of Trump’s “reciprocal” tariffs, which have seen duties as high as 50% on key trading partners like India and Brazil, and up to 145% on China. These tariffs have collectively generated nearly $90 billion in payments from American importers as of late September, according to US Customs and Border Protection data.

Alternative Tariff Authorities

Despite the potential Supreme Court ruling, economists from Goldman Sachs anticipate that the administration would likely use other legal frameworks to impose “substantially similar tariffs,” suggesting minimal change for large trading partners. The shift would primarily be in the legal basis for these levies rather than their existence.

Section 122 of the Trade Act of 1974

This provision allows a president to levy tariffs up to 15% for a maximum of 150 days to address “large and serious United States balance-of-payments deficits.” Unlike other statutes, Section 122 does not require an advanced investigation, enabling immediate imposition of new levies. However, congressional approval is necessary for these tariffs to continue beyond the 150-day period.

Section 232 of the Trade Expansion Act of 1962

Under this law, the president can impose higher tariffs on national security grounds. Its application is limited to specific sectors and mandates an investigation by the Commerce Department before tariffs can be enacted. Examples include the across-the-board tariffs President Trump imposed on steel, aluminum, copper, lumber, furniture, cars, and car parts during his second term.

Section 301 of the Trade Act of 1974

This section empowers the US Trade Representative (USTR) to investigate countries that may be violating trade agreements or engaging in practices deemed “unjustifiable” and detrimental to US business. USTR Jamieson Greer initiated an investigation last month into China’s adherence to a trade agreement brokered by Trump during his first term. Investigations under Section 301 can take weeks or months due to a lengthier process, including public comment periods, but they impose no limits on the level or duration of tariffs.

Section 338 of the Tariff Act of 1930

Though never implemented by any president, this law permits tariffs of up to 50% on imports from countries engaged in trade practices that discriminate against the United States. Utilizing Section 338, however, could risk violating World Trade Organization agreements and provoke significant retaliation from affected nations.

Outlook

While the Supreme Court may alter the legal foundation for some of President Trump’s existing tariffs, the administration is expected to continue pursuing its economic agenda through a range of alternative tariff-wielding authorities.