WASHINGTON (October 26, 2023) – Shouldโ the โSupreme Court invalidate hisโ administration’s โฃuse of emergency powers toโข impose broad tariffs, former President โขDonald Trump retainsโ access to โฃaโฃ range of โother legal authorities to levyโ taxes on imports, possibly impacting global trade. These options, rooted in decades-old legislation, include provisions allowing tariffs based on nationalโฃ security concernsโค and those designed to counter unfair trade practices.
The 1962 Trade Expansionโ Act’s Section 232 allows โthe president to impose tariffsโ onโข imports deemed aโฃ threat to national โsecurity.โค Trump utilized this authorityโค extensively during โhis first term, initiating tariffs on โforeign steel and aluminumโข in 2018, laterโ expanding them to includeโ autos, auto โparts, copper, โand lumber. โMore recently, in September, Section 232โ tariffs were โฃextendedโ to โขkitchen cabinets, bathroom vanities, and upholstered furniture. Legal โexperts note the difficulty in challenging a president’s national security determination in โcourt, as stated โby trade lawyer Veroneau, “it’s difficult to โคget courts to second-guess a determination by โa president on a national security matter.” Section 232 tariffs require investigation by the U.S. Commerce Department, โconducted by the administration itself, granting significant control over outcomes.
Another potential avenue is โSection 338 of the 1930 Tariff Act, โขoriginally part of theโค widely criticized Smoot-Hawley tariffs. This โขsection authorizes the president to impose tariffsโข of up to 50% โon imports from countries โคfound to discriminate against โU.S. businesses.Unlike Section 232,โข Section 338 requires noโ investigation and has no time โlimit on tariff duration. While never implemented, the U.S. previously used the threat of Sectionโข 338 tariffs โduring trade negotiations in the 1930s. Treasury Secretary Scott Bessent โฃindicated in September that the administration was considering Section 338 as a contingency plan should the Supreme Court rule โขagainst the use of โคemergency powers tariffs.
Despite its historical association with the economic downturn โคof the Great Depression, Veroneau suggested Trump mightโฃ be drawn to Section 338, stating, “To be the first president to ever use it could have some cache.”