In a recent hearing, trade experts discussed the likelihood that high tariffs imposed on America's trading partners will remain in effect, even if the Supreme Court determines that former President Donald Trump improperly invoked federal emergency powers to enact these tariffs. The justices expressed skepticism regarding Trump's use of the 1977 International Emergency Economic Powers Act (IEEPA) during the session on Wednesday, raising questions about the legality of the sweeping tariffs affecting nearly every country.
Officials from the Trump administration have argued that these tariffs are essential for reducing the nation’s trade deficit and revitalizing domestic manufacturing. Ted Murphy, co-leader of the global arbitration, trade, and advocacy practice at Sidley Austin, remarked that even if the Supreme Court were to strike down the IEEPA tariffs, it is improbable that Trump would abandon these tariffs altogether. Murphy stated, "Our view is that even if the Supreme Court were to strike down the IEEPA tariffs going forward, the result won't be any different. The U.S. will be living in a higher tariff rate environment going forward—it just might be under different tariff authorities."
In the event that the Supreme Court rules against Trump, he may still utilize other legal frameworks to impose tariffs. For instance, the Section 232 of the Trade Expansion Act of 1962 allows the president to impose duties on imports to safeguard national security. Additionally, Trump could leverage Section 301 of the Trade Act of 1974, which mandates that the Department of Commerce investigate whether foreign trade partners engage in unfair trade practices. However, Murphy cautioned that the processes for implementing tariffs under Sections 232 and 301 are more complex and time-consuming than the broad authority granted under IEEPA.
Patrick Childress, an international trade attorney at Holland & Knight, echoed these sentiments, stating, “Section 232 and 301 are the most obvious directions for the administration to turn, but they'd likely take months to conclude, rather than weeks.”
An unfavorable ruling for Trump could impose significant financial burdens on the U.S. government, potentially necessitating billions of dollars in refunds to businesses. As of August, importers had paid nearly $89 billion in tariffs under IEEPA, according to data from U.S. Customs and Border Protection. Rick Woldenberg, CEO of the toy company Learning Resources and a plaintiff in the IEEPA case, voiced his concerns by stating, “I definitely want my money back,” emphasizing that the government has imposed what he considers a “massive tax.”
The average tariff rate in the U.S. currently stands at 18%, marking the highest level of taxation on foreign goods since 1934, according to the Yale Budget Lab. While a Supreme Court ruling against Trump's invocation of IEEPA could lead to financial refunds for businesses, it may also introduce further uncertainty into the trade policy landscape. Grace Zwemmer, an associate economist at Oxford Economics, noted that any changes in tariff policy would likely not significantly alter existing forecasts but could lead to increased uncertainty, potentially impacting hiring and business investments.
The White House has not commented on the possibility of Trump utilizing other legal avenues for tariff imposition should the Supreme Court rule against him regarding IEEPA. U.S. Secretary of the Treasury Scott Bessent expressed optimism about the court's forthcoming decision, stating, “I’m confident that the President's emergency powers…we did have emergencies, the President has dealt with them. He’s continuing to deal with them.” Experts anticipate a ruling on this pivotal case early next year, which could have far-reaching implications for U.S. trade policy.