The US Supreme Court will decide on tariffs. Trump may emerge unscathed

“They are aware that there are many different laws they can use to regain tariff authority,” says Everett Eissenstat, former deputy director of the White House National Economic Council during Trump's first term. – There are many tools they can use to offset customs revenues.

The contingency plan underscores how much Trump stands to lose. The president took advantage International Economic Powers in Emergencies Act 1977which is designed to be used in times of crises to impose tariffs on almost all U.S. trading partners — the cornerstone of his second-term economic agenda. The justices will consider whether the law provides broad authority to impose economic restrictions or whether Trump has gone beyond Congress's intentions.

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If the court limits the powers, it could upend not only the White House's trade strategy but also the global negotiations that Trump has used to shape it.

Trump's plan may collapse

— This is about foreign policy. This is not the year 1789, when trade policy, economic policy, national security policy and defense policy could be clearly distinguished. All of these issues are completely interconnected, explains Alex Gray, who served as chief of staff of the National Security Council and deputy assistant to the president during Trump's first term. —Limiting the tools at your disposal is real dangerous.

Behind the scenes, commercial and legal advisers have modeled what a partial defeat – in which a court upholds the application of the 1977 Act in some circumstances – might look like, and what other legal remedies might be available to achieve similar goals.

However, alternative solutions are slower, narrower in scope and, in some cases, equally susceptible to legal challenge. This makes even White House allies admit that The administration's tariff strategy is faltering more than it is willing to publicly admit. Even a partial defeat at the Supreme Court would make it much more difficult for the president to use tariffs as a catch-all tool to extract concessions on a range of issues, from forcing foreign companies to invest in the United States to pressuring countries to reach peace agreements.

“There is no other legal authority that would act as quickly or give the president the flexibility he wanted,” says one supporter of Trump's tariff policy. He was part of the group that submitted an opinion supporting the tariffs. — They seem very confidentthat they will win. I don't understand where this confidence comes from. Two different courts issued very strict rulings in this case. Still, White House advisers appear confident, confident that the judges will not deprive Trump of his favorite negotiating tool. Even if they do, the administration has plenty of contingency plans.

“Honestly, there's a bit of bravado about it, like they're not going to overturn it,” a White House insider says.

US President Donald Trump, Busan, South Korea, October 30, 2025.Andrew Caballero-Reynolds / AFP

Tension in the US

A White House official, who was granted anonymity, added that the administration sees it as a “pretty clear cut.” – We are using the act passed by Congress, which granted the executive branch the power to apply tariffs in emergency situations – explains the interlocutor.

Advisors admit that other customs powers are not a “clear replacement” for the Emergency Situations Act, although they confirmed they are trying to obtain them.

In fact, the White House has already laid some policy groundwork for these powers, such as 1970s-era Section 301, which the United States used against China during Trump's first term, or Cold War-era Section 232, which allows tariffs to be imposed on national security grounds.

The administration initiated a dozen investigations under Article 232 to determine whether imports of goods such as timber, semiconductors, pharmaceuticals and critical minerals from other countries threaten national security. Since January, Trump has used these powers to impose new tariffs on copper, aluminum, steel and cars.

An Article 301 investigation was also launched into Brazil's trade practices, including digital services, ethanol tariffs and intellectual property protection. According to officials, this model could be replicated in other countries if the court limits the scope of the law. It could also be used to pressure countries to reaffirm trade deals they have negotiated with the United States or accept rates that Trump has unilaterally assigned to them.

But these tools come with some challenges: Section 301 investigations can take months, slowing Trump's ability to unilaterally impose tariffs or tie them to unrelated goals, such as ending Russia's war in Ukraine or stopping the flow of fentanyl across the U.S. border.

“We are in a worse situation than before”

Article 232 gives broad powers to impose tariffs on national security grounds. However, since fees are sector-based, they typically apply to entire product categorywhich limits Trump's ability to put pressure on individual countries.

And imposing new tariffs on global industries such as semiconductors or pharmaceuticals, as Trump has threatened, could upend recent agreements the administration has reached with trading partners, especially China, which negotiated a trade truce last week.

“This easing of tensions may have weakened the president's determination to continue taking action under Article 232. We are in a worse situation than before,” says a second administration source.

The United States has already promised to delay fees for Chinese ships arriving at American ports after the conclusion of an investigation into China's shipbuilding practices under Article 301. This comes after Trump's meeting with Chinese leader Xi Jinping on Thursday. The United States also agreed to delay an investigation into China's compliance with a trade deal from Trump's first term.

Donald Trump's “Liberation Day” when the US president announced the tariff package, Washington, April 2, 2025.Saul Loeb / AFP

Article 122, however, allows for the application of only short-term duties of up to 15%. and for a period of not more than 150 days, unless Congress acts to extend it. This is a narrow clause designed to address trade deficit emergencies. The power could potentially serve as a bridge between an unfavorable court ruling and new tariffs that Trump wants to impose using other powers.

Trump will find a way

There is also Article 338, a rarely used provision that has been in place for almost a century. Theoretically, it could allow Trump to quickly impose tariffs of up to 50%. against any country if it could explain how that country is taking “unreasonable” or “discriminatory” actions that harm U.S. trade. Section 338 does not require a formal investigation before the president imposes tariffs, but it would likely face similar legal challenges.

Major trading partners assume Trump will find a way to reimpose tariffs. Two European diplomats, granted anonymity to discuss trade strategy, say the countries believe that The Supreme Court will not repeal global tariffs, and if it does, it will not make a significant difference.

“Our working assumption is that the court rulings will not change anything,” says a European official, adding that they still hope the law will be repealed.

Some believe that the only way to permanently resolve the tariff issue is for the president to invoke… Congressarguing that only lawmakers can decide how much unilateral power the White House should permanently wield over global trade.

It would be a difficult fight. At least four Republicans openly oppose global tariffs – they opposed Trump in a series of symbolic votes last week. It is unclear whether there is any willingness in the House of Representatives, which was shielded from making decisions on tariffs until late January (after Republican leadership blocked a vote on Trump's national emergency), to vote on Trump's tariffs.

“Ultimately, it all comes back to Congress,” Eissenstat says. — Perhaps Congress will strengthen its role after the hearing and ruling. We'll see.