WASHINGTON — After losing in lower courts, President Donald Trump plans to take his case for the authority to unilaterally impose tariffs to the Supreme Court and the public square.
But his aides have also explored alternative methods for imposing import taxes on foreign goods, according to a senior White House official and two people familiar with the internal discussions.
The backup plans have been part of internal discussions for many months because some White House officials anticipated the possibility that courts would intervene to stop Trump's tariffs, challenging the method he used to impose them — which was pushed by senior trade counselor Peter Navarro — according to two people familiar with the dynamics.
Trump has not been able to use tariffs to force better trade terms with as many foreign nations as quickly as he would have liked, and the court battle could further delay those negotiations.
But even if the Supreme Court turns Trump down, he’ll be ready to move forward with other tariff options, these people said.
On Wednesday, Trump asked the Supreme Court to quickly review an appeals court ruling that a 1970s national security law, the International Emergency Economic Powers Act (IEEPA), does not grant the president the power to set tariffs.
In a 7-4 decision, the majority of judges on the U.S. Court of Appeals for the Federal Circuit ruled that while the law, which Trump cited in a series of executive orders setting tariffs, gives the president significant emergency powers, “none of these explicitly include the power to impose tariffs, duties, or the power to tax.”
Trump allies say they are confident that the Supreme Court, where three of the six Republican-appointed justices were picked by Trump in his first term, will provide a more favorable interpretation of the executive’s authority. One Republican operative who is close to the White House described a court that will be looking for a justification to preserve or expand the president’s power, rather than a reason to limit it.
Even if the justices end up letting the appellate court’s opinion stand, Trump has a series of options for pursuing tariffs through a series of laws in which Congress has delegated its constitutional power to levy tariffs to the president.
The one that has received the most attention is Section 232 of the Trade Expansion Act of 1962, which empowers the president to adjust duties on specific goods “so that such imports will not so threaten to impair the national security” after an administration investigation of trade practices. Many of Trump’s current and pending tariffs, on items like steel, aluminum and cars, fall under Section 232 and would not be directly affected by an adverse ruling on his use of IEEPA.
Another one, Section 301 of the Trade Act of 1974, gives the U.S. trade representative authority to probe whether U.S. rights are being denied under any trade pact and, at the direction of the president, take lawful actions to rectify that. With the president’s tariff powers in question, it is not clear how Section 301 could, or would, be used to implement tariffs.
Neither of those laws provides for the kind of expedited, wave-of-the-hand tariff authority that Trump sought through IEEPA, and each comes with its own drawbacks — legal and logistical — as Trump tries to use the force of duties to give America a stronger hand in international trade.
Still, those other avenues are a big reason that some foreign officials say they are not adjusting their strategies based on the most recent court ruling or the possibility that the Supreme Court might overturn it.
“It doesn’t change anything,” one foreign government official said. “You cannot go into a negotiation expecting that something from the outside will present a turning point.”
Regardless of the court outcome, the Trump administration will make the case to the public that Trump has a national security prerogative to continue levying tariffs, the senior White House official said. Trump has used tariffs to attempt to compel other countries, including Russia, India and Pakistan, to end or avoid wars.
But the uncertainties around various aspects of Trump’s tariff policies — including the court fight and looming Section 232 investigations at the Commerce Department — are delaying the administration’s ability to cut deals with foreign countries, according to a person close to the White House who works on trade issues.
“The whole thing is sort of interwoven together,” this person said. “It’s made it incredibly hard for the negotiators to land some of these agreements.”
