If the Supreme Court Rejects Trump’s Tariffs, What Are His Options?

I count seven options Trump is likely to try. There are serious problems with all of them.

Trump’s Other Options

1. Section 232(b) of the Trade Expansion Act of 1962. Section 232(b) provides for the imposition of tariffs or quotas on imports that threaten to impair U.S. national security. Investigations may be self-initiated by the Department of Commerce (Commerce). They may also be initiated based on an application from an interested party or at the request of the head of another U.S. government agency. If Commerce finds that imports of a particular product or products threaten to impair U.S. national security, the president decides whether to impose tariffs or quotas on such imports.
2. Section 122 of the Trade Act of 1974. This statute authorizes the president to impose quotas and tariffs of as much as 15 percent for up to 150 days against one or more countries that have “large and serious” balance-of-payment surpluses with the United States.
3. Section 201 of the Trade Act of 1974. Section 201 permits the president to impose tariffs or quotas on imports of a particular product where there has been a surge of imports of that product. To have tariffs or quotas imposed under Section 201, the import surge must constitute a substantial cause of serious injury to the U.S. industry producing the product in question.
4. Section 301 of the Trade Act of 1974. Under Section 301, upon a finding that another country has denied the United States its rights under a trade agreement or has engaged in practices that are unjustifiable, unreasonable or discriminatory and burden or restrict U.S. commerce, the United States may impose tariffs and quotas against the foreign country’s imports. Section 301 investigations are conducted by the U.S. Trade Representative’s Office, which has the authority to impose duties and quotas and to suspend benefits granted to the United States’ trading partners under trade agreements.
5. The Trading With the Enemy Act (TWEA) and the International Emergency Economic Powers Act of 1977 (IEEPA). TWEA and IEEPA authorize the president to regulate all forms of international commerce and freeze assets in time of war (TWEA) or in response to “unusual or extraordinary” international threats to the national security, foreign policy or economy of the United States (IEEPA).
6. Anti-Dumping and Countervailing Duty Laws. Upon a finding that a U.S. industry is being “materially injured” or threatened with material injury by dumped or subsidized imports, the United States can impose anti-dumping (AD) or countervailing (CVD) duties to offset the level of dumping or subsidization that is occurring. Investigations may be initiated in response to a petition from a domestic industry or union, or may be self-initiated by Commerce. A number of industries have successfully brought investigations under these laws in recent years to address injury being caused by unfairly traded imports, and the brisk pace of cases and investigations is expected to continue as numerous industries continue to face overcapacity and other structural issues arising from subsidization and government intervention in markets.
7. Enforcement of Existing AD/CVD Orders and U.S. Customs Laws. Companies importing into the United States also should expect increased enforcement of existing AD and CVD orders as well as other requirements of the U.S. customs laws. Among other areas, U.S. Customs and Border Protection can be expected to increase enforcement actions against imports suspected of evading AD and CVD duties under the recently enacted Enforce and Protect Act of 2015 and other grants of enforcement authority

The above seven points are from a 2017 article on US Trade Policy and Enforcement

Here are some issues based on reading additional links including the Trade Act of 1974

Trade Act of 1974 – Section 122

Section 122 only allows 15 percent and only for 150 days.

President shall proclaim, for a period not exceeding 150 days (unless such period is extended by Act of Congress)—
(A) a temporary import surcharge, not to exceed 15 percent ad valorem, in the form of duties (in addition to those already imposed, if any) on articles imported into the United States;
(B) temporary limitations through the use of quotas on the importation of articles into the United States; or
(C) both a temporary import surcharge described in subparagraph (A) and temporary limitations described in subparagraph (B).

Trade Act of 1974 – Section 201

SEC. 201. ACTION TO FACILITATE POSITIVE ADJUSTMENT TO IMPORT COMPETITION. (a) PRESIDENTIAL ACTION.—If the United States International Trade Commission (ITC) (hereinafter referred to in this chapter as the ‘‘Commission’’) determines under section 202(b) that an article is being imported into the United States in such increased quantities as to be a substantial cause of serious injury, or the threat thereof, to the domestic industry producing an article like or directly competitive with the imported article, the President, in accordance with this chapter, shall take all appropriate and feasible action within his power which the President determines will facilitate efforts by the domestic industry to make a positive adjustment to import competition and provide greater economic and social benefits than costs.

Section 201 includes a 150-day review period. It requires the ITC to examine factors other than imports which may be a cause of serious injury, or threat of serious injury, to the domestic industry. It requires “clear evidence that increased imports (either actual or relative to domestic production) of the article are a substantial cause of serious injury, or the threat thereof, to the domestic industry producing an article like or directly competitive with the imported article …”

Amusingly only three of six positions of this bipartisan commission are currently filled, two of which are Democrats.

The USITC is headed by six Commissioners who are nominated by the President and confirmed by the U.S. Senate. No more than three Commissioners may be of any one political party. Currently two Democrats and one Republican serve as Commissioners.

Trade Act of 1974 – Section 301

This section has the same flaws as 201. The bipartisan commission needs to agree with Trump. And there are 150-day review periods.

Trading With the Enemy Act (TWEA)

The TWEA pertains to the ability to freeze assets in time of war, not impose tariffs.

And we are not at war in the first place.

Anti-Dumping Laws

AI Analysis: Anti-Dumping (AD) and Countervailing Duty (CVD) laws are trade remedies allowing countries (like the U.S.) to impose extra tariffs (duties) on imported goods that are “dumped” (sold below fair value) or unfairly subsidized by foreign governments, aiming to protect domestic industries from unfair competition and injury. The process involves investigations by the Commerce Department (determining dumping/subsidy) and the International Trade Commission (determining industry injury), resulting in duties equal to the dumping margin or subsidy amount to level the playing field. 

No doubt the commerce department would rule in Trump’s favor.

However, the bipartisan ITC gets to set the penalty.

Trade Expansion Act of 1962 – Section 232(b)

In practice, much if not all of the above, may prove to be useless to Trump except the Trade Expansion Act of 1962. But that’s a potential slug as well.

Section 232 Process

Under Sec. 232, the head of any department or agency, or any “interested party” may request that the Secretary of Commerce investigate the effects of a specific import on U.S. national security. The Commerce Secretary may also self-initiate an investigation. The Commerce Secretary must immediately notify the Secretary of Defense regarding any Sec. 232 investigation. If a petitioner withdraws a request, Commerce may choose to terminate an investigation.

Investigation and Report. Sec. 232 investigations are conducted by the Commerce Department’s Bureau of Industry and Security. Commerce must “immediately initiate an appropriate investigation to determine the effects [of the subject imports] on the national security”. Commerce is to consult with the Secretary of Defense, other “appropriate officers of the United States,” and allow for public input if “appropriate and after reasonable notice.” Within 270 days of initiating a Sec. 232 investigation, the Commerce Secretary must submit to the President a report on the investigation’s findings with respect to the effect of an imported good “in such quantities or under such circumstances” upon U.S. national security and recommendations for action or inaction.

2017-2021. During the first Trump Administration, Commerce completed seven Sec. 232 investigations: (1) aluminum, (2) steel, (3) automobile and automobile parts, (4) uranium, (5) titanium sponge, (6) transformers and transformer components, and (7) vanadium. In all completed investigations except for vanadium, Commerce found a threat to U.S. national security.

President Trump imposed tariffs on steel and aluminum in 2018. He later modified the steel and aluminum tariffs, granting certain product and country exemptions as well as negotiating import quotas and increasing tariff rates on specific countries and goods. For other goods, the Trump Administration entered into negotiations with trading partners. For uranium, President Trump did not concur with Commerce’s finding of a national security threat, but announced the establishment of a working group.

2021-2025. The Biden Administration conducted a Sec. 232 investigation into neodymium-iron-boron (NdFeB) permanent magnets and found a threat to U.S. national security. President Biden concurred with Commerce’s determination related to permanent magnets and announced various actions to improve supply chain resiliency.

National Security Threat

The term “national security threat,” is not defined in Sec. 232. Some groups argue that the Trump Administration’s definition, particularly related to economic factors, is overly broad, resulting in overutilization of Sec. 232. The White House asserts that “economic security is national security.” Some groups argue that Congress should play a role in defining national security threats. Others support maintaining a flexible definition of national security, arguing that it allows the United States to respond quickly to evolving threats.

No doubt Trump will claim nearly everything to be a national security issue.

However, turning items like toys, movies, coffee, mangoes, rice, T-shirts, and underwear into national security issues will quickly look ridiculous.

If things get too extreme, which I fully expect, there will be more court challenges.

Thus, there’s quite a bit at stake in the upcoming Supreme Court decision on reciprocal tariffs.

Polymarket odds are now 22 percent. That’s just a percentage point above the contract low.

Related Posts

November 16, 2025: What Are the Odds the Supreme Court Rules Against Trump on Tariffs?

The Supreme Court decision is not random. I discuss a framework.

My take then was 75-25 against Trump. I expect a 6-3 ruling. Click for an analysis justice-by-justice.

December 29, 2025: Will Tariffs Be Refunded If the Supreme Court Strikes Them Down?

Polymarket provides no guidance because that bet expired December 31.