The U.S. Supreme Court struck down some of President Donald Trump’s tariffs on Friday, but the administration already has a roadmap to bring them back. For months, officials quietly developed contingency plans, mapping out a web of alternative trade laws that could keep the president’s tariff agenda alive.
Treasury Secretary Scott Bessent first signaled the contingency plans in September, telling reporters that the administration was preparing alternative legal authorities in case the court ruled against the president.
Why It Matters
The 6-3 ruling dismantled the legal foundation for Trump’s “Liberation Day” levies on most U.S. trade partners and the fentanyl-related duties on China, Canada and Mexico. But it did not end his ability to tax imports.
Chief Justice John Roberts wrote for the majority, joined by Justices Sonia Sotomayor, Elena Kagan, Neil Gorsuch, Amy Coney Barrett and Ketanji Brown Jackson.
What To Know
The administration has at least four statutory pathways available—each with different speed, scope and legal exposure. Some are familiar tools Trump has used before. Others are untested, potentially more powerful, and come with significant legal risk. Here is how they break down.
Section 301—Trade Act of 1974
The most familiar option and the one officials are most actively discussing. Section 301 allows the U.S. government to investigate unfair trade practices and impose tariffs accordingly. Trump used it aggressively against China in his first term. Officials have discussed targeting it specifically at countries without an existing trade deal with the U.S. The downside: It requires an investigation before duties can be imposed, making it the slowest of the available options.
Section 122—Trade Act of 1974
The fastest path forward but the most limited in scope. Section 122 allows the president to impose tariffs of up to 15 percent on all countries to address trade deficit concerns, with minimal procedural requirements. The significant constraint: The tariffs expire after 150 days unless Congress votes to extend them—a steep ask in the current political climate. It has never been invoked by a president.
Section 232—Trade Expansion Act of 1962
A tool Trump knows well. Section 232 allows tariffs on national security grounds and was used in his first term to impose duties on steel and aluminum imports. It carries more legal credibility than some of the other options given its prior use, but it requires a Commerce Department investigation before tariffs can be imposed, making it one of the slowest options.
Section 338—Tariff Act of 1930
The wildcard. Section 338, buried in the infamous Smoot-Hawley Act, authorizes the president to impose tariffs of up to 50 percent on imports from any country found to be discriminating against U.S. commerce. No investigation required. No time limit. On paper, it is the broadest tool available, but it has never been used, is entirely untested in modern courts and would face immediate legal challenges. The central unresolved question: What counts as “discrimination?” No court has ever answered that.
What People Are Saying
Maya MacGuineas, president of the Committee for a Responsible Federal Budget, in a statement: “With today’s Supreme Court ruling affirming the illegality of President Trump’s emergency tariffs, the country will now be about $2 trillion deeper in the hole. With the national debt already the size of the entire U.S. economy and interest on the debt costing more than $1 trillion this year, this is very bad news. Congress should work quickly to fill that hole.”
Mark Chenoweth, president of the New Civil Liberties Alliance: “Today the Supreme Court agreed with NCLA by holding that no president can unilaterally raise taxes on Americans. The Court recognized that American importers pay tariffs. They are not taxes somehow imposed on foreign states.”
Representative Don Bacon, a Nebraska Republican and Trump critic: “The Constitution’s checks and balances still work. Article One gives tariff authority to Congress.”
Lisa Graves, co-founder of Court Accountability, leading expert on the right-wing legal movement, in a statement: “The Roberts Court has handed Donald Trump a convenient political off-ramp from his disastrous tariff policy that is raising prices, wreaking havoc on the American economy, and cratering his economic approval ahead of the midterms. The decision confirms what should never have been in question: Trump lacks the constitutional authority to unilaterally impose sweeping tariffs, a power the Constitution explicitly delegates to Congress. This ruling is not judicial courage. This is the Roberts Court doing the bare minimum to rein in Trump’s abuse of power while conveniently providing a political lifeline to shield Republicans from electoral ruin.”
What Happens Next
The ruling does not prevent Trump from imposing tariffs under other laws.
This is a breaking news story. Updates will follow.
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