Trump has other tariff options if the Supreme Court strikes down his worldwide import taxes

President Donald Trump has issued a stark warning that the United States could be rendered “defenseless” and potentially “reduced to almost Third World status” if the Supreme Court strikes down his widespread tariffs imposed earlier this year.

During oral arguments on Wednesday, Supreme Court justices expressed skepticism about Trump’s sweeping claims of tariff authority. However, trade experts suggest that regardless of the court’s decision, the president will retain numerous options to continue taxing imports aggressively.

“It’s hard to see any pathway here where tariffs end,” said Kathleen Claussen, a Georgetown trade law professor. “I am pretty convinced he could rebuild the tariff landscape he has now using other authorities.”

During the hearing, attorney Neal Katyal, who represents small businesses challenging the tariffs, argued that Trump doesn’t need the unlimited authority he’s claiming under the 1977 International Emergency Economic Powers Act (IEEPA). Katyal noted that Congress has already delegated tariff powers to the White House through several other statutes with carefully defined limitations.

Tariffs have become a cornerstone of Trump’s foreign policy in his second term. He has imposed double-digit “reciprocal” tariffs on most countries, justifying these actions by declaring America’s longstanding trade deficits a national emergency. According to Yale University’s Budget Lab, the average U.S. tariff has jumped from 2.5% when Trump returned to office in January to 17.9% currently—the highest rate since 1934.

The president acted unilaterally despite the U.S. Constitution specifically granting taxation and tariff powers to Congress. According to Stratos Pahis of Brooklyn Law School, Trump “will have other tools that can cause pain” even if the court rules against him.

One powerful option at Trump’s disposal is Section 301 of the Trade Act of 1974, which allows the U.S. to target countries engaged in “unjustifiable,” “unreasonable,” or “discriminatory” trade practices. Trump used this provision extensively in his first term, particularly against China, imposing sweeping tariffs in response to Beijing’s aggressive technological competition strategies. The U.S. is currently using these powers to counter alleged unfair Chinese practices in the shipbuilding industry.

“You’ve had Section 301 tariffs in place against China for years,” noted Ryan Majerus, a partner at King & Spalding who served as a trade official in both the Trump and Biden administrations. While Section 301 tariffs have no size limits and can be extended beyond their initial four-year term, they do require an investigation and typically a public hearing before implementation.

John Veroneau, general counsel for the U.S. trade representative under President George W. Bush, points out that while Section 301 works well against major economies like China, it becomes cumbersome when dealing with smaller nations. “Undertaking dozens and dozens of 301 investigations of all of those countries is a laborious process,” Veroneau said.

In May, the U.S. Court of International Trade struck down Trump’s reciprocal tariffs, ruling that emergency powers couldn’t be used to combat trade deficits. However, Section 122 of the Trade Act of 1974 specifically allows presidents to impose tariffs up to 15% for a maximum of 150 days to address trade imbalances—without requiring prior investigations. Though never previously utilized for tariffs, this provision represents another potential tool.

Trump has also aggressively deployed Section 232 of the Trade Expansion Act of 1962, which permits tariffs on imports deemed threats to national security. He used this authority to tax foreign steel and aluminum in 2018 and has expanded these measures since returning to office. Recently, he even imposed Section 232 tariffs on kitchen cabinets, bathroom vanities, and upholstered furniture.

Though some might question how imported furniture threatens national security, Veroneau notes that “it’s difficult for courts to second-guess a determination by a president on a national security matter.” While Section 232 tariffs require a Commerce Department investigation, the administration conducts this review itself, giving it “a lot of control over the outcome.”

A final, more dramatic option comes from the nearly century-old Tariff Act of 1930, known as Smoot-Hawley. Section 338 of this Depression-era law authorizes presidents to impose tariffs up to 50% on imports from countries discriminating against U.S. businesses, with no required investigation or time limit.

Though never implemented and widely criticized by economists for worsening the Great Depression, Treasury Secretary Scott Bessent told Reuters in September that the administration was considering Section 338 as a contingency if the Supreme Court ruled against Trump’s emergency powers tariffs.

Despite Smoot-Hawley’s negative historical reputation, Veroneau suggests Trump might find appeal in being “the first president to ever use it.”