If the Supreme Court limits the President’s use of IEEPA in the Learning Resources case, the administration will certainly pivot to other legislative tools, as Bessent references here. But if those tools were as good as the IEEPA, they would have used them already. While IEEPA offers the broadest authority, the executive branch has several other levers to pull, though they come with more red tape and procedural delays.
Section 232 of the Trade Expansion Act of 1962
You likely remember this from the steel and aluminum tariffs in 2018 and then again when Trump returned. It allows the President to adjust imports if the Department of Commerce determines they threaten national security. The main constraint here is time. The Secretary of Commerce has to conduct an investigation that can take up to 270 days. To use this effectively as a replacement for IEEPA, the administration would need to aggressively speed up these investigations or broaden the definition of “national security” to cover general consumer goods, which opens them up to further legal challenges.
Section 301 of the Trade Act of 1974
This is the primary tool used during the trade war with China. It is designed to address unfair trade practices, such as intellectual property theft or non-tariff barriers. Unlike the blanket authority of IEEPA, Section 301 is more surgical and requires the U.S. Trade Representative to establish a factual basis for the tariffs. While it is generally more targeted, the administration has shown they can cast a very wide net with this statute if they frame the “unfair practice” broadly enough. My guess is this one is most likely to survive court challenges but it will take awhile to implement.
Section 338 of the Tariff Act of 1930
This is the “sleeper” option that gets very little attention. It allows the President to impose new duties of up to 50% if a country is found to discriminate against U.S. commerce. The administration could theoretically argue that foreign Value Added Tax (VAT) systems—which rebate exports while taxing imports—constitute discrimination. Dusting off this statute would be a massive escalation and would likely be viewed as a direct challenge to the World Trade Organization system. This is an antiquated one but the administration might argue that VAT taxes qualify as discrimination and courts might challenge this on “Major Questions” so text around that in the upcoming decision will be telling.
Section 122 of the Trade Act of 1974
This section is specifically designed to handle balance-of-payments deficits. It allows for a temporary import surcharge of up to 15% to protect the dollar or reduce a serious trade deficit. The catch is that it is a temporary fix. The surcharge is capped at 150 days unless Congress steps in to extend it, making it less useful for a long-term trade strategy. The US might try to bridge other investigative timelines by using this first but it limits tariffs to 15%.
All these different statutes will make the reasoning of any Supreme Court decision as important as the decision itself
