President Donald Trump’s administration is working behind the scenes on backup plans if the Supreme Court overturns one of his key tariff authorities, seeking to replace the tariffs as soon as possible.
Both the Commerce Department and the Office of the U.S. Trade Representative have studied Plan B options if the court rules against the administration, according to U.S. officials familiar with the plan. These include Sections 301 and 122 of the Trade Act, which give the president the power to unilaterally impose tariffs.
There are risks with these replacements, too — they tend to be slower or more limited than the broad powers Trump has asserted so far and could face their own legal challenges. The government is hopeful of an outright victory. Trump has repeatedly urged judges to uphold country-based tariffs he has imposed citing economic emergencies.
Still, the preparations following the court appearance are the latest sign that the government is bracing for a potentially adverse outcome. skeptical Trump raised the issue of global tariffs during oral arguments this month. They also show Trump’s commitment to imposing tariffs, including through untested means. An administration official who spoke on condition of anonymity said tariffs will remain a core part of Trump’s economic agenda regardless of the court’s ruling.
“We’re waiting for a decision. We hope it’s going to be good, but if it’s not, we’re going to do it – we’re always going to find a way, you know, we’re going to find a way,” Trump said Wednesday.
The White House declined to comment on the specifics of its preparations but acknowledged it was seeking “new ways” to maintain Trump’s trade policies.
“President Trump has lawfully exercised the emergency tariff powers Congress delegated to the executive branch, and the administration is confident in the Supreme Court’s ultimate victory on this issue. The administration has been researching new ways to address America’s historic merchandise trade deficit and relocate manufacturing that is critical to our national and economic security,” spokesman Khush Desai said.
It’s unclear when the Supreme Court will rule. The justices could uphold the tariffs, eliminate them entirely or take a more targeted approach. The decision may trigger further uncertain For businesses and foreign governments.
“My expectation is that they will move immediately to reinstate these policies,” Scott Lincicome, associate dean for general economics at the Cato Institute, said of the Trump team. “They’ll basically put everything back together again.”
The Supreme Court case hinges on Trump’s use of the International Emergency Economic Powers Act (IEEPA), under which he imposed so-called “reciprocal” tariffs on global imports and fees on fentanyl-related goods from China, Canada and Mexico, as well as taxes on Brazilian products, in an unfortunate effort to prevent the prosecution of former President and Trump ally Jair Bolsonaro.
Bloomberg Economics estimates that the total effective tariff on U.S. imported products is about 14.4%, more than half of which is IEEPA tariffs. If the Supreme Court strikes down state-based taxes, economists “expect that most tariffs will eventually be replaced entirely.”
In some cases, backup plans are already in place. For example, during his first term, Trump launched a Section 301 investigation into Brazil and imposed Section 301 tariffs on some Chinese products. This provision often requires a lengthy investigation before the duties can be carried out.
National Economic Council Director Kevin Hassett said that if the Supreme Court rules against the government, Trump may use Section 301 or Section 122 powers to reimpose import taxes.
“There are a lot of things we can do so that we can replicate the current policies with other authorities,” Hassett said in an interview with a Bloomberg News host on November 13. The Carlyle Group Co-founder and co-chairman David Rubenstein at an Economic Club of Washington event.
The authority under Section 122 would allow the president to impose tariffs of 15% – a threshold he has established in several agreements with other countries – for a maximum period of 150 days. Trump trade adviser Peter Navarro earlier this year pointed to the time limit as one reason the administration does not plan to rely heavily on the measure.
Trump also used Section 232 of the Trade Expansion Act to impose tariffs on industries such as metals and automobiles. The government announced new investigations and imposed new tariffs. In addition, the growing number of finished goods affected by these tariffs has angered some trading partners, including European countries, who say it weakens the sectoral tariff caps in the U.S.-EU trade agreement.
“I’m starting to wonder if this is part of the administration’s Plan B if IEEPA is found unconstitutional,” former U.S. trade negotiator Wendy Cutler posted on the website last month. social media. “It’s just a matter of time before the 232 covers most of our manufacturing base.”
Section 338 of the Tariff Act is another potential tool for Trump, but given that it has never been used before, it could spark a new legal fight.
“This could be subject to litigation soon,” Lincicome said. “I am cautiously optimistic that we are avoiding a return to the chaos of 2025.”
Still, given the limitations of the new measures, it won’t be easy for Trump to implement them. Officials will have to grapple with new legal questions, such as whether the government can impose Section 122 tariffs at the same time, lift them before the deadline and then reimpose them at a new time, or whether to impose them retroactively to avoid refunding money collected under the existing system.
“It’s going to be a huge mess,” Lincicome said.
According to Bloomberg Economics, an adverse court ruling could force the government to refund more than $88 billion in tariffs already collected.
White House deputy chief of staff James Blair said he believed the administration’s chances of winning the case were 50-50 or better. But if they don’t, officials will reinstate essentially all the levies that were eliminated.
“The president’s existing powers-that-be have some tools that they can use to restore the economy almost in different ways,” Blair said at a Bloomberg Government event on Nov. 18. “We’ll see what they govern.”