Trump officials say they are confident that they will be able to reimplement tariffs through other means even if the Supreme Court rules against the administration.
Treasury Secretary Scott Bessent said Wednesday that the White House will charge ahead even if the Supreme Court rules against President Donald Trump’s use of the International Emergency Economic Powers Act to impose tariffs. The court has already heard oral arguments in the case.
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Bessent cited several sections of the 1962 Trade Act as a means of replicating the current tariff regime.
“We can recreate the exact tariff structure with [sections] 301, with 232, with 122,” Bessent said during an appearance at the New York Times DealBook Summit, citing specific provisions of the law.
Still, he said he thinks that the administration has a good chance of winning the Supreme Court case.
And the comments about reimplementing the tariffs through other means aren’t just bluster. Experts told the Washington Examiner that the Trump administration has several cards it could play if the case falls through, although these options would be more complicated and administratively burdensome than using IEEPA, a national security law enacted in 1977, which grants the president broad powers to regulate international transactions for emergency purposes. In the past, it has been used to implement financial sanctions on adversaries, but Trump’s use of the law to impose broad-based tariffs is novel.
“I think it’s roughly the case that the Trump administration could replace much of the revenue — it would just take some time, and it would be messy,” said Kyle Pomerleau, a senior fellow at the American Enterprise Institute.
Milos Ivkovic, an international trade expert and professor at the Washington University School of Law, said that the reason why the Trump administration used IEEPA right out of the gate is because of the broad powers it gives the presidency.
“This was the best piece of legislation to start with — it was the fastest to invoke, it was the fastest to move on,” Ivkovic said.
The administration likely proceeded with the IEEPA tariffs despite knowing they would be challenged and potentially overturned by the Supreme Court, experts said, because they were administratively more straightforward to implement quickly.
Ryan Young, a senior economist at the Competitive Enterprise Institute, said that the administration interprets IEEPA to allow implementation of “any tariff against any country at any level that they want at any time with no notice.”
“And the other tariff statutes in place are not nearly so flexible,” Young added.
The other tariff powers that might be invoked if the Supreme Court rules against the current tariff regime have various requirements, such as the administration conducting investigations into the relevant markets and producing reports on the findings. They also may come with expiration dates.
For instance, Young pointed out that the Section 232 tariffs require a report to be written in advance, which can take several months to complete. They also expire after four years, so they would need to be renewed.
Bill Reinsch of the Center for Strategic and International Studies said the administration could likely reinstate more than half of the tariffs through various statutes.
“There are rules about that sort of thing. In some cases, there has to be a public comment opportunity. You know, it varies by statute — so it would be more cumbersome, and he couldn’t do it right away because of these various requirements,” Reinsch said.
Also, the administration is likely already preparing for the aftermath of an unfavorable Supreme Court ruling, according to Clark Packard, a trade expert at the libertarian Cato Institute.
“They’re certainly thinking about a fallback plan,” Packard said.
Trump himself has also acknowledged that the administration might end up having to get creative with reimposing the tariffs if the high court strikes them down.
“We’re waiting for a decision. We hope it’s going to be good, but if it’s not, we’ll do — we always find ways, you know, we find ways,” Trump said last month.
Still, the administration is maintaining that the Supreme Court could rule in its favor, and the countermeasures might be avoided.
“Tariffs are going to be a part of this administration’s national security and national economic protection of the American people,” Commerce Secretary Howard Lutnick recently said on Fox Business.
“We are gonna win the case, it’s pretty clear,” he added.
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Tariff experts say that businesses should not expect that a Supreme Court ruling against the administration will bring about the end of the Trump tariff agenda.
“I’ve been telling companies for months: if you guys think this court decision is a lifeline, you’re mistaken,” Reinsch said. “He’ll just find a way to do it in a different way.”
