The U.S. Supreme Court is currently weighing legal challenges to the Trump Administration’s use of the International Emergency Economic Powers Act (“IEEPA”) to impose substantial tariffs on a wide range of imported goods. The primary question presented in Trump v. V.O.S. Selections, Inc. is whether IEEPA authorizes the imposition of tariffs in response to a declared national emergency. With billions of dollars in tariffs at stake, the highly anticipated decision has importers, domestic industries, and practitioners alike asking the same question: If the Court strikes down the IEEPA tariffs, will that relief for domestic producers automatically disappear and trigger massive refunds to importers for already collected IEEPA tariffs?
The answer, according to senior Trump Administration officials, is that the tariffs would not disappear but would continue under alternative authorities. Treasury Secretary Scott Bessent stated in December that, even if the IEEPA tariffs are invalidated by the Court, “We can recreate the exact tariff structure with 301s, with 232s, with … 122s.” Moreover, U.S. Trade Representative Jamieson Greer recently confirmed that, if the Supreme Court strikes down the President’s use of IEEPA, a response by the White House could be expected by “the next day.” White House National Economic Council Director Kevin Hassett has likewise indicated that President Trump has a “backup plan” to maintain current tariff levels—specifically referencing a “10% tariff, right away, to make up most of the room and then use things like the 301 authorities, the 232 authorities, to backfill the things we’ve already achieved” under IEEPA.
While IEEPA has served as the Administration’s preferred tariff authority this term, it is not the only legal mechanism available to increase tariff levels on imported goods. Section 301, Section 122, Section 338, and Section 232 are among the alternative authorities the Trump Administration has already indicated it may invoke if the IEEPA tariffs are found unlawful. The discussion below outlines what these remedies are and how they could be used to sustain current tariff levels.
Section 301 – Unfair Trade Practices
Section 301 of the Trade Act of 1974, codified at 19. U.S.C. § 2411, authorizes the Office of the U.S. Trade Representative (“USTR”) to investigate and respond to unfair foreign trade practices that burden or restrict U.S. commerce. Section 301 investigations are country-specific, permit the imposition of tariffs and import restrictions, and are preceded by a formal investigative process that includes public comment and can take months to complete.
President Trump relied on this authority in his first term to impose broad tariffs on imports from China in response to acts, policies, and practices related to technology transfer, intellectual property, and innovation determined to be unreasonable and discriminatory. These tariffs were maintained by President Biden, who also used Section 301 to investigate Vietnam’s import and use of illegal timber.
More recently, an April 2025 executive order on “Restoring American Seafood Competitiveness” directed USTR to “examine the relevant trade practices of major seafood-producing nations, including with regard to IUU fishing and the use of forced labor in the seafood supply chain, and consider appropriate responses, including pursuing solutions through negotiations or trade enforcement authorities, such as under section 301.”
This statutory authority has already been used extensively and upheld by reviewing courts. Since 2020, U.S. Customs and Border Protection has collected approximately $245.65 billion in Section 301 tariffs on Chinese products, with $5.38 billion collected in FY 2026, as of December 14, 2025. Thus, if the IEEPA tariffs are struck down, Section 301 offers a potential pathway to re-impose comparable country-specific tariffs on additional products.
Section 122 – Balance-of-Payments Authority
Section 122 of the Trade Act of 1974, codified at 19. U.S.C. § 2132, authorizes the President to immediately impose tariffs on all trading partners if he finds that there exist “large and serious” balance-of-payments deficits. The statute permits tariffs of up to 15 percent and imposes a 150-day time limit, although Congress may affirmatively vote to extend the measures. The President could also potentially revoke Section 122 tariffs at day 150 and re-impose them again.
The text of Section 122 differs from IEEPA in that it expressly authorizes the use of tariffs as a remedy, though it could invite litigation over the sufficiency of any presidential finding of a qualifying balance-of-payments deficit. Although a balance-of-payments deficit is not the same thing as a trade deficit, the Administration could attempt to justify a presidential finding of “large and serious” balance-of-payments deficits by pointing to persistent U.S. trade deficits with major trading partners.
Section 122 has never been used in this manner and remains largely untested. The statute’s 150-day time limit could raise novel legal and practical questions, particularly if the President were to revoke Section 122 tariffs and re-impose them again after 150 days. The primary limitation of Section 122 is the statutory 15 percent cap, which is below several of the current reciprocal IEEPA tariff rates. As a result, Section 122 alone would be insufficient to fully recreate the existing tariff regime, and the Administration would likely need to rely on additional statutory authorities in parallel.
Section 338 – Discriminatory Trade Practices
Section 338 of the Tariff Act of 1930, codified at 19 U.S.C. § 1338, authorizes the President to impose tariffs of up to 50 percent on imports from countries that discriminate “in fact against the commerce of the United States, directly or indirectly.” Like Section 122, Section 338 requires a presidential finding and expressly authorizes the use of tariffs as a remedy. Unlike Section 122, however, Section 338 contains no express time limitation, making it potentially attractive as a longer-term substitute for IEEPA-based tariffs.
To invoke Section 338, the President would need to find discrimination “in fact” against U.S. commerce, a standard the statute does not define. While the World Trade Organization’s most-favored-nation (“MFN”) rules generally prohibit discriminatory treatment among trading partners, the Administration could attempt to argue that persistent trade deficits with certain countries, particularly where those countries run trade surpluses with other nations, amount to discrimination in fact against U.S. commerce.
The use of Section 338 would almost certainly trigger legal challenges and political pushback. As with the IEEPA tariffs, however, any litigation would likely take time to resolve, and tariffs imposed under Section 338 may remain in place while those challenges proceed. If the IEEPA tariffs are struck down, Section 338 would offer a high-ceiling, time-unlimited statutory pathway to re-impose comparable tariffs.
Section 232 – National Security
Section 232 of the Trade Expansion Act of 1962, codified at 19 U.S.C. § 1862, authorizes the Secretary of Commerce to investigate whether imports of a given product “threaten to impair the national security” and, if so, allows the President to implement both tariff and non-tariff remedies. In evaluating national security threats, Commerce considers both defense-related factors, such as the ability of U.S. industries to meet defense needs, and economic factors, including the impact of foreign competition, unemployment, and declining investment. Because Section 232 is expressly designed to support domestic production capacity and reduce reliance on foreign suppliers, it aligns well with President Trump’s “America First Trade Policy.”
Although Section 232 was historically used sparingly, its application has expanded dramatically since President Trump’s first term. Since 2020, $21.96 billion has been collected on 232 tariffs on steel and aluminum articles alone. And since last year, approximately $37.51 billion has been collected on additional products such as automobiles, copper, and wood products. Notably, recent investigations have moved beyond traditional defense materials and into sectors such as wind turbines, pharmaceuticals, and medical equipment, highlighting the breadth of products that may be subject to tariffs under this statute.
Courts have repeatedly upheld the President’s broad discretion under Section 232. If the IEEPA tariffs are struck down, Section 232 would offer a statutory pathway to sustain elevated tariff levels, particularly for products that can be linked to supply chain resilience and national security. Because Section 232 does not delineate the types of threats to national security that can be addressed through tariffs, it is possible that the Executive could interpret the statutory language to encompass a broad range of threats.
Looking Ahead
If the Supreme Court invalidates the IEEPA tariffs, the immediate effect could be the revocation of existing tariffs and potential refunds of amounts already collected. Foreign “non-resident” importers of record, like Wui Hing Plastic Bags Printing (Hong Kong) Co., Ltd. (“a Hong Kong company”: Ct. Int’l Trade Court No. 26-00654) and Sea Foods Private Limited (“a foreign entity located and registered in India”: Ct. Int’l Trade Court No. 26-00720), are filing lawsuits at the Court of International Trade in an effort to perfect the ability to obtain refunds of their duty payments to date. For these companies, a Supreme Court ruling invalidating the IEEPA tariffs would mean large sums of money being refunded from the U.S. Treasury to the foreign exporters who paid the tariffs, plus interest.
While foreign companies are likely to benefit from any adverse Supreme Court ruling in terms of significant capital infusions, based on Administration statements and the available statutory toolkit, it is highly unlikely that President Trump would abandon the use of tariffs to address unfair and unbalanced trade. Instead, comparable tariff levels would likely be re-imposed under alternative authorities—most prominently Sections 301, 232, 122, and potentially Section 338. The Supreme Court’s IEEPA decision is being closely watched, as it is likely to have significant implications for the future structure of U.S. tariff policy and the tools available to combat unfair trade, including the lack of reciprocity in our bilateral trade relationships.