Trump's backup options for tariffs

Summary of Trump's backup options for tariffs

by NPR

8m•November 12, 2025
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Overview of "Trump's backup options for tariffs" (NPR — The Indicator)

This episode explains the legal fight over President Trump's use of the International Emergency Economic Powers Act (IEEPA) to impose tariffs, what the Supreme Court hearing revealed, and the alternative authorities the administration could use if the Court limits or rejects IEEPA-based tariffs. It breaks down the main statutory options, their limits and strengths, political constraints, and the likely tradeoffs for policymakers and markets.

Key takeaways

  • The Supreme Court is weighing whether IEEPA (the International Emergency Economic Powers Act) can lawfully be used to impose tariffs; several conservative justices signaled skepticism at oral argument.
  • If the Court blocks IEEPA use for tariffs, the administration has several statutory backups — each with different legal, procedural, and policy constraints.
  • Main alternatives: Section 338 of the Tariff Act (Smoot‑Hawley), Section 122 of the Trade Act of 1974, and Section 232 of the Trade Expansion Act of 1962 — plus the option of seeking legislation from Congress.
  • Tradeoffs are mostly about speed, scope (which countries or goods), duration, and maximum tariff rates. Political feasibility (getting Congress to act) is a major constraint.

How IEEPA was being used and why it's controversial

  • IEEPA allows the president to declare a national emergency to block or regulate foreign transactions; the Trump administration used it to impose so‑called "reciprocal" tariffs.
  • Critically, IEEPA does not mention tariffs explicitly. That gap, and the broad delegation of power it appears to allow, drew pointed questions from justices during oral argument.
  • Legal scholars note this is the first time in decades that a president has claimed tariff authority under IEEPA; prior presidents used other statutes that include more procedural limits and congressional oversight.

Backup tariff authorities (what "etcetera" could be)

Section 338 — Tariff Act of 1930 (Smoot‑Hawley)

  • Description: Allows tariffs when a foreign country is found to be discriminating against U.S. commerce.
  • Pros: Can authorize tariffs up to about 50%; closest in effect to the broad powers the administration sought under IEEPA.
  • Cons: Requires findings about discriminatory treatment (legal debate exists about proof and process); politically toxic name (Smoot‑Hawley) given its historical association with the Great Depression.
  • Likely role: The most plausible substantive backup if IEEPA is rejected, but slower and more legally complicated.

Section 122 — Trade Act of 1974

  • Description: Relatively untested authority that appears to let the president impose tariffs quickly without a full investigation.
  • Pros: Fast; can be used without the heavy investigative process.
  • Cons: Time‑limited — tariffs can last only 150 days unless Congress approves an extension; maximum tariff around 15%; far less scope and duration than IEEPA‑style actions (CBO models often assume multi‑year effects).
  • Likely role: The speed option for short‑term measures but too constrained for long‑term, high‑rate tariffs.

Section 232 — Trade Expansion Act of 1962

  • Description: Permits tariffs on specific goods if an investigation finds imports threaten national security.
  • Pros: No explicit caps on rate or duration; used previously for steel, aluminum, and auto-related tariffs; can target products (pharmaceuticals, semiconductors, etc.).
  • Cons: Requires a national‑security investigation and findings; legally and politically framed as product‑specific (not countrywide).
  • Likely role: A flexible tool for product-specific tariffs where the administration can plausibly claim national‑security grounds.

Going to Congress

  • Constitutional route: Congress has the power to set tariffs and regulate foreign commerce; historically Congress often approved tariff policies.
  • Pros: Provides clear statutory authority and removes many legal challenges.
  • Cons: Politically difficult — tariffs are not broadly popular and Congress may resist making temporary emergency actions permanent; slower process.

Legal and political stakes from the oral argument

  • Several conservative justices posed tough questions about delegating such sweeping power to the president without limits.
  • Justice Neil Gorsuch strongly challenged the government’s position about unreviewable executive authority — framing the debate as one about constitutional boundaries.
  • Solicitor General and government lawyers were pressed on how to prevent an abdication of Congress’s powers if IEEPA is read broadly.
  • Outcome implications: If two conservative justices side with the liberals, IEEPA‑based tariffs could be struck down; the administration would then pivot to the statutory alternatives above.

Practical implications and comparisons

  • Speed: Section 122 > Section 232 (investigation required) > Section 338 (investigation/discrimination finding).
  • Scope: IEEPA (as used) and Section 338 can be country‑wide; Section 232 is product‑specific; Section 122 is time‑limited and rate‑limited.
  • Maximum rates: Section 122 ~15%; Section 338 up to ~50%; Section 232 effectively uncapped (though politically constrained).
  • Duration: Section 122 limited to 150 days without Congress; others can be indefinite absent legal/legislative challenge.
  • Economic modeling differences: CBO often assumes tariffs persist for years, which matters a lot when comparing short statutory windows (150 days) to multiyear assumptions.

Notable quotes and moments

  • Neil Katyal (arguing against the government): “They can go and try and seek to use other authorities, whether it’s 338, Section 122, etc., etc., etc.”
  • Justice Neil Gorsuch pressed the government on whether such broad delegation is effectively an abdication of Congress’s constitutional role.

Bottom line

The Supreme Court’s ruling on IEEPA will shape which legal path the administration uses for tariffs. If the Court curtails IEEPA, administration options remain but will involve tradeoffs: slower procedures (Section 338), short duration and lower rates (Section 122), or product‑specific national security claims (Section 232). Securing congressional approval would avoid the legal gymnastics but is politically uncertain. The decision could arrive soon and will determine how durable and sweeping future tariffs can be.