A List of Tariff Tools Available to Trump: From IEEPA to Various Trade Law Provisions

President Trump's aggressive move to impose tariffs on specific countries,will face review by the Supreme Court next month. At the heart of this review is Trump's broad use of the International Emergency Economic Powers Act (IEEPA) to implement large-scale tariffs. Previously, two federal courts ruled such actions unlawful, prompting the Trump administration to appeal and request the Supreme Court to hear the cases. The Supreme Court has scheduled oral arguments for November.

The Trump administrationarguesthat, given the national emergencies it declared over trade deficits and fentanyl trafficking, the president's use of IEEPA to impose tariffs is justified. More broadly, the administration contends that since Congress passed IEEPA, oversight authority should rest with Congress, not the courts.

Through this interpretation of IEEPA, the Trump administration has been able to impose tariffs on numerous U.S. trading partners without additional administrative procedures. The administration has also invoked IEEPA to raise existing tariff rates, such as imposinga combined 50% tariff。

"I think one of the attractions of IEEPA is that there's no report required," said Alexander Schaefer, a partner in the international trade practice at the law firm Crowell & Moring. "There's no formal determination required. The president declares an emergency and then says 'we're going to respond this way,' and there's no procedural red tape throughout the process."

The Trump administration has not relied solely on IEEPA to advance its tariff system. Regardless of how the Supreme Court rules, the president still has multiple tools to continue raising tariff rates. Below are some of those mechanisms and how they might be applied.

Section 232

Alongside IEEPA, the Trump administration has also heavily invoked Section 232 of the Trade Expansion Act of 1962 to impose tariffs on specific industries and launch investigations. Through Section 232, Trump has imposed50% tariffson steel and aluminum imports,25% tariffson automobiles and parts, and recently implemented a series of rates onfurniture and other wood products. These measures all stem from Section 232 investigations, which must be completed before tariffs take effect. The Trump administration is currently advancing several other Section 232 investigations involvingsemiconductors、pharmaceuticalsandcritical minerals.

"One reason the administration has launched so many Section 232 investigations is to have backup plans in place, because Section 232 was upheld by the Court of International Trade and the Federal Circuit during Trump's first term for steel and aluminum tariffs," said Greg Husisian, a partner at the law firm Foley & Lardner. According to Husisian, goods covered by current Section 232 investigations account for about 40% of U.S. trade, meaning that even if Trump's use of IEEPA is overturned, the potential impact of tariffs based on these investigations is considerable in itself.

Section 301

Another tool Trump has used in both terms to impose tariffs is Section 301 of the Trade Act of 1974. Through this mechanism, the U.S. Trade Representative's office must conduct a 12- to 18-month review to determine whether tariffs or other remedies are needed in response to unfair trade practices by specific countries. Trump imposed tariffs on Chinese imports under Section 301 during his first term. Former President Joe Biden latermaintained and expanded these tariffs, adding products such as electric vehicles, batteries, and semiconductors.

Similar to Section 232, tariffs imposed under Section 301 investigations have also received judicial support in the past. The Federal Circuit in Septemberupheld tariffs imposed under Section 301 during Trump's first term. Given the precedents of Sections 232 and 301, there is reason to believe the Trump administration will pursue these new tariff avenues more aggressively.

"I expect to see more reliance on Sections 232 and 301 initially," said Kelsey Christensen, an international trade lawyer at Clark Hill.

Section 338

Another tool the Trump administration could use is Section 338 of the Tariff Act of 1930. This provision allows the president, by proclamation, to imposetariffs of up to 50%in response to discriminatory treatment of U.S. commerce by other countries. The president also has the authority to revoke or modify tariffs already in place. However, according to Schaefer, this provision has not been used since the 1940s and could face objections from the World Trade Organization. But withthe WTO Appellate Body currently nonfunctional, the U.S. could appeal any panel ruling "into oblivion," he added.

Section 201

Unlike Section 338, which grants broader executive discretion, Section 201 of the Trade Act of 1974 is a "safeguard investigation," Christensen said. Section 201 proceedings are initiated by petitions, including government-led ones. According to Schaefer, this tool requiresthe U.S. International Trade Commission to conduct an investigation of about six monthsto determine whether a specific domestic industry is suffering "material injury."

"It's a bit like an anti-dumping case, but the difference is that you need to prove whether there is material injury in an open case," Schaefer said. According to Schaefer, President George W. Bush used this tool during his tenureto impose tariffs on steel. Similarly, aSection 201 petitionfiled by Harley-Davidson in the 1980s ultimately led to a 45% tariff on Japanese motorcycles.

Section 122

Section 122 of the Trade Act of 1974 authorizes the president to quickly impose tariffs due to trade deficits, similar to how Trump has used IEEPA. However, this provision has stricter limits. According to Schaefer, the tariff rate cannot exceed 15%, and it automatically expires after 150 days unless Congress approves an extension.

"A 15% rate is lower than the current rates some countries face on certain goods, but in reality it is the applicable rate for many countries," Schaefer said, referring to current tariffs on specific countries. "So it's conceivable that Trump would use this provision to replace some of his current actions."