Aides have spent weeks strategizing how to reconstitute the president’s global tariff regime if the court rules that he exceeded his authority.
The White House is exuding confidence heading into Wednesday’s Supreme Court hearing that the justices will uphold President Donald Trump’s sweeping tariff powers.
But just in case, aides have a plan B.
Aides have spent weeks strategizing how to reconstitute the president’s global tariff regime if the court rules that he exceeded his authority. They’re ready to fall back on a patchwork of other trade statutes to keep pressure on U.S. trading partners and preserve billions in tariff revenue, according to six current and former White House officials and others familiar with the administration’s thinking, some of whom were granted anonymity to share details of private conversations.
“They’re aware there are a number of different statutes they can use to recoup the tariff authority,” said Everett Eissenstat, former deputy director of the White House’s National Economic Council during Trump’s first term. “There’s a lot of tools there that they could go to to make up that tariff revenue.”
The contingency planning underscores how much is at stake for Trump, who has used the International Emergency Economic Powers Act, a 1977 law designed for national emergencies, to impose tariffs on nearly every U.S. trading partner — the foundation of his second-term economic agenda. The justices will weigh whether the law gives the president broad power to impose economic restrictions — or whether Trump has stretched it beyond what Congress intended.
If the court curtails that power, it could upend not only the White House’s “America First” trade strategy but also the global negotiations Trump has leveraged it to shape.
“This is all about foreign policy. This isn’t 1789 where you can clearly delineate between trade policy, economic policy, national security policy and defense policy. These things are all completely interconnected,” said Alex Gray, who served as National Security Council chief of staff and deputy assistant to the president during the first Trump administration. “To diminish the tools he has to do that is really dangerous.”
Behind the scenes, trade and legal advisers have modeled what a partial loss might look like — where the court upholds the use of the 1977 law in some circumstances but not others — and what other legal means might be available to achieve similar ends.
However, those alternatives are slower, narrower and, in some cases, similarly vulnerable to legal challenge, leaving even White House allies to acknowledge the administration’s tariff strategy is on shakier ground than it is willing to publicly concede. Even a partial loss at the Supreme Court would make it much harder for the president to use tariffs as an all-purpose tool for extracting concessions on a number of issues, from muscling foreign companies to make investments in the U.S. to pressuring countries into reaching peace agreements.
“There’s no other legal authority that will work as quickly or give the president the flexibility he wanted,” said one supporter of Trump’s tariff policies, who was part of a group that filed an amicus brief in support of his tariffs. “They seem very confident that they’re going to win. I don’t see why they’re confident at all. Two different courts that have ruled extremely harshly on this.”
Still, White House aides are telegraphing confidence, convinced the justices won’t strip Trump of his favorite negotiating tool, and certain that even if they do, he has plenty of backup plans.
“Frankly, there’s a little bit of bravado, like, they’re not going to knock these down,” one person close to the White House said.
A White House official, granted anonymity to discuss internal deliberations, said the administration sees it as “a pretty clear case.”
“We’re using a law that Congress passed, in which they gave the executive branch the authority to use tariffs to address national emergencies,” the official said.
Aides concede that other tariff authorities are not a “one-for-one replacement” for the emergency law, though they confirmed they are pursuing them.
In fact, the White House has already laid some of the policy groundwork under those authorities, such as the 1970s-vintage Section 301, which the U.S. used against China in Trump’s first term, or the Cold War-era Section 232, which allows tariffs on national-security grounds.
The administration has launched more than a dozen 232 investigations into whether the import of goods like lumber, semiconductors, pharmaceuticals and critical minerals from other countries impairs national security. Since January, Trump has used that authority to impose new tariffs on copper, aluminum, steel and autos.
It has also opened a 301 investigation into Brazil’s trade practices, including digital services, ethanol tariffs and intellectual property protection. It’s a model officials say could be replicated against other countries if the court curtails IEEPA — and could be used to pressure countries into reaffirming the trade deals that they’ve already negotiated with the United States, or to accept the rates that Trump has unilaterally assigned them.
But those tools come with challenges: Section 301 investigations can take months to complete, slowing Trump’s ability to impose tariffs unilaterally or tie them to unrelated goals like ending the war between Russia and Ukraine or stem the flow of fentanyl across the U.S. border.
Section 232 offers broad discretion to impose tariffs on national-security grounds, but because the levies are sector-based, they are typically applied across a product category, limiting Trump’s ability to pressure individual countries.
And imposing new duties on global industries like 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 detente may have weakened the president’s resolve to go forward with the 232s. We’re worse off than we were,” a second person close to the administration said.
The U.S. has already promised to delay fees on Chinese vessels arriving at U.S. ports following the conclusion of a Section 301 investigation on China’s shipbuilding practices as a result of the Thursday meeting between Trump and Chinese leader Xi Jinping. The U.S. also agreed to delay an investigation into China’s adherence to its trade deal from Trump’s first term.
Section 122, meanwhile, allows only short-term tariffs of up to 15 percent and for no more than 150 days unless Congress acts to extend them — a narrow clause meant to address trade deficit emergencies. The authority could potentially serve as a bridge between an adverse court ruling and new duties Trump wants to put in place using other authorities.
Then there’s Section 338 — a rarely used provision that’s been on the books for nearly a century. In theory, it could let Trump swiftly impose tariffs of up to 50 percent on any country, if he can explain how they are engaging in “unreasonable” or “discriminatory” actions that hurt U.S. commerce. Section 338 does not require a formal investigation before a president can impose tariffs, but would likely face similar legal challenges.
Major trading partners are betting that Trump will find a way to reimpose tariffs, somehow. Two European diplomats, granted anonymity to discuss trade strategy, said the countries believe that the Supreme Court won’t strike down the global tariffs and, if it does, it won’t do much to shift the dynamic.
“Our working assumption is that the court rulings won’t change anything,” a European official said, adding that they are still hoping the law is overturned.
Some are convinced the only way to address the tariffs permanently is for the president to appeal to Congress, arguing that only lawmakers can decide how much unilateral power any White House should permanently wield over global commerce.
That would be an uphill battle. At least four Republicans are openly opposed to the global tariffs — bucking Trump in a series of symbolic votes last week. And it’s unclear whether there’s appetite for a vote on Trump’s tariffs in the House, which has been shielded from weighing in on the tariffs until the end of January, after Republican leadership blocked votes on Trump’s national emergencies.
“At the end of the day, all this comes back to Congress,” Eissenstat said. “Maybe Congress will step up its role post hearing, post ruling. We’ll see.”