WASHINGTON (October 26, 2023) – Should the Supreme Court invalidate his administration’s use of emergency powers to impose broad tariffs, former President Donald Trump retains access to a range of other legal authorities to levy taxes on imports, possibly impacting global trade. These options, rooted in decades-old legislation, include provisions allowing tariffs based on national security concerns and those designed to counter unfair trade practices.
The 1962 Trade Expansion Act’s Section 232 allows the president to impose tariffs on imports deemed a threat to national security. Trump utilized this authority extensively during his first term, initiating tariffs on foreign steel and aluminum in 2018, later expanding them to include autos, auto parts, copper, and lumber. More recently, in September, Section 232 tariffs were extended to kitchen cabinets, bathroom vanities, and upholstered furniture. Legal experts note the difficulty in challenging a president’s national security determination in court, as stated by trade lawyer Veroneau, “it’s difficult to get courts to second-guess a determination by a president on a national security matter.” Section 232 tariffs require investigation by the U.S. Commerce Department, conducted by the administration itself, granting significant control over outcomes.
Another potential avenue is Section 338 of the 1930 Tariff Act, originally part of the widely criticized Smoot-Hawley tariffs. This section authorizes the president to impose tariffs of up to 50% on imports from countries found to discriminate against U.S. businesses.Unlike Section 232, Section 338 requires no investigation and has no time limit on tariff duration. While never implemented, the U.S. previously used the threat of Section 338 tariffs during trade negotiations in the 1930s. Treasury Secretary Scott Bessent indicated in September that the administration was considering Section 338 as a contingency plan should the Supreme Court rule against the use of emergency powers tariffs.
Despite its historical association with the economic downturn of the Great Depression, Veroneau suggested Trump might be drawn to Section 338, stating, “To be the first president to ever use it could have some cache.”
