If IEEPA Falls: The Real Limits of the Administration’s Backup Tariff Options

[Disclaimer: This article reflects my own personal views and analysis. It does not represent the views of any client, organization, or entity, and it is not intended as legal advice. Readers should consult their own legal counsel and legal professionals before taking any action based on the issues discussed here.]

A Supreme Court ruling is imminent on the question of whether the International Emergency Economic Powers Act (IEEPA) can lawfully serve as the basis for the broad, peacetime tariffs imposed during the Trump administration. These tariffs reshaped supply chains, increased import costs, and forced companies to grapple with whether and how to preserve refund rights or whether to adapt to this new reality by internalizing these costs or passing them on to distributors and, ultimately, consumers. Entire industries and governments have been waiting for clarity and closely watching each new development.

Yet as the legal community focuses on the fate of IEEPA, another equally important development is unfolding: Treasury Secretary Scott Bessent has already begun signaling that the White House has “backup” options if the Court shuts down IEEPA as a tariff tool.[1] 

These alternatives are drawing attention in policy circles and the press, and much of the public discussion concerns a central question: whether they can truly replicate the broad, sweeping authority with which the Administration used IEEPA (and which is being challenged in the Courts).

A review of the backup options quickly illustrates their legal boundaries and why they will likely not support the kind of tariff program that was pursued by the administration through IEEPA.

Backup Option #1 — Section 301 of the Trade Act of 1974

Section 301 authorizes the U.S. Trade Representative (USTR) to investigate and respond to unfair trade practices by foreign countries. If the investigation finds that a country violates trade agreements or engages in discriminatory conduct, the President may impose tariffs, quotas, or other restrictions (19 U.S.C. § 2411(b)). 

If such a violation is found, the President may impose additional duties or other restrictive actions on the offending country’s goods.

Why It Might Be Used as a Backup

Supporters of Section 301 argue that it could justify broad tariffs on countries like China or others viewed as engaging in harmful practices. It has been used aggressively in the past — notably for the 2018 China tariffs.

Key Limitations

Section 301 has built-in limitations[2]:

• It requires an investigation, which takes time, public comment (consultation with private and public stakeholders), and administrative findings.

• Must be a finding of unfair trade practice or violation of trade rules, not simply a trade deficit or “unfair” imbalance.

• It does not authorize across-the-board tariffs on all imports; the measures must be tied to the specific practices investigated.

When used aggressively, as in the 2018 China tariffs, it can support substantial import duties. However, Section 301 is not an all-purpose tariff statute. It requires formal investigations, public comment, findings of unfair conduct, and a direct connection between the conduct identified and the tariff imposed. It cannot be used to impose immediate, across-the-board tariffs on all imports simply because the administration wants leverage. The scope must be tied to the conduct identified, the products affected must relate to the underlying violations, and the process itself can take months or longer.

Section 301 can justify tariffs, but not instantly and not globally. It does not give the President a blank check.

Backup Option #2 — Section 232 of the Trade Expansion Act of 1962

Section 232 allows the President to impose tariffs when imports threaten national security.

The statute was used to impose steel and aluminum tariffs during the previous administration, and it is still on the books.  In short the Statute:

• Allows the Secretary of Commerce to investigate whether imports “threaten to impair the national security” of the United States.

• If the Secretary makes a finding, the President can “increase or impose duties or other import restrictions.” (19 U.S.C. § 1862)

Why It Might Be Used

Unlike IEEPA, Section 232 uses the word “duties” (which equates to tariffs) and “import restrictions.” The administration could order the Department of Commerce to initiate repeated or expanded national-security investigations across multiple industries, thereby building a new scaffolding for tariffs.

Why It Cannot be Used in the Manner the Administration Used IEEPA

Again, significant limits apply[3]:

• It requires a formal investigation and findings by the Secretary of Commerce, a process lasting months.

• Must be a national security investigation covering specific goods or categories of goods, not broad sweeping tariffs on all imports.

• Must follow the procedural timeline: typically 270 days for investigation + 90 days for remedy[4].

• The justification must tie the action to national security (not simply trade deficits or economic imbalances).

This authority has been used in the past for steel and aluminum, and there is no question the statute remains viable. But Section 232 has constraints IEEPA never had. It requires a formal investigation by the Department of Commerce. It demands specific national-security findings. It links the remedy to the sectors or materials that allegedly threaten security. And it moves slowly. Even a fast-tracked 232 investigation would take months, not days, and the statute does not allow for a global, all-imports tariff program. It is a tool for sector-specific action, not a mechanism for reshaping the entire import landscape overnight.

It cannot justify universal tariffs imposed overnight.

Backup Option #3 — Section 122 of the Trade Act of 1974

This is often referred to as the “President’s temporary surcharge authority,” and is a more obscure statute allowing temporary tariffs in a balance-of-payments crisis. 

This Statute authorizes the President to impose a temporary duty surcharge (up to 15 %) for up to 150 days when there is a “large and serious” balance-of-payments deficit or when foreign trade restrictions exist. (19 U.S.C. § 2132). 

Why It Might Be Considered

Section 122 is unusual because it authorizes faster action than 301 or 232. The President can impose a temporary surcharge of up to 15 percent for up to 150 days in response to a large and serious balance-of-payments deficit. Because it does not require the elaborate investigations associated with other trade statutes, Section 122 is sometimes described as a “quick-strike” tariff authority.

Section 122 permits:

• A surcharge of up to 15%,

• For up to 150 days,

• Without Congressional approval.

It is one of the few statutes that allows rapid, unilateral action (with one prominent exception[5]).

Why It Is Not IEEPA

Its limitations are even more restrictive:

• The tariff amount is capped (15%).

• The duration is short (150 days).

• The justification must be tied to balance-of-payments emergencies, not general trade objectives.

• Renewing the tariff requires Congressional involvement.

The tariffs are capped at 15 percent. The duration is limited to 150 days. And any extension requires congressional involvement. This is not a foundation for a long-term tariff regime. It is, at best, a short-term pressure tactic.

It is worth noting that commentators and an amicus brief filed by Georgetown Law’s Appellate Litigation Clinic have emphasized that Section 122 of the Trade Act of 1974 is the proper authority for any trade-deficit tariffs, and that IEEPA is especially ill-suited for this purpose because Congress enacted IEEPA to limit, not expand, executive emergency powers.[6]

In short, this statute is a scalpel, not a sledgehammer. It cannot replace a multi-year, multi-category tariff program that the current administration envisioned with the IEEPA tariffs regime.

Dusting off the Depression-Era Trade Law

Some have pointed to Section 338 of the Tariff Act of 1930 as a potential supplemental tool, but its usefulness is extremely limited. Section 338 is a retaliation statute from a pre-WTO era that requires a showing of discriminatory treatment by a specific country, and it was never designed to support broad, systemic tariff programs. Even if invoked, it could only justify narrow, country-specific retaliation, not a global tariff regime. In practical terms,

Section 338 cannot come close to replacing what the administration tried to achieve through IEEPA.

Here is the comparison:

Factor	IEEPA	Section 301	Section 232	Section 122
Speed	Immediate	Slow	Slow	Fast, but temporary
Scope	Global	Targeted	Targeted	Temporary & capped
Flexibility	Extremely broad	Tied to unfair practices	Tied to national security	Tied to balance-of-payments emergency
Procedural Limits	May Not Allow Imposition of Tariffs	Requires Finding of unfair trade practice or violation of trade rules and measures must be tied to practices investigated	Requires 270-day formal investigation and finding of a national security investigation covering specific goods or categories of goods	Balance of payment emergencies, capped at 15 percent with 150 days duration & Congressional involvement

Put simply, the administration cannot use a patchwork of narrower statutes to recreate what it hoped to achieve under IEEPA.

Conclusion

During the oral argument, several Justices asked the government why it did not rely on those alternative statutes instead of IEEPA, since all of them explicitly include “duties”/“tariffs” or import restrictions. The government’s strategy appears to have preferred IEEPA because it provided the broadest, fastest route with minimal procedural hurdles, but that also triggered the major-questions doctrine and non-delegation concerns.

The justices emphasized that when Congress wants to give tariff power, it does so clearly (as in Section 232, Section 301, Section 122). IEEPA does not mention “tariffs” or “duties.”

The fallback options exist. They can support tariffs. But they are slower, narrower, and burdened with statutory limits that prevent them from becoming anything like the global, instantaneous tariff engine that IEEPA provided, which caused serious disruptions to businesses with the constant shifting of the “Liberation Day”/IEEPA/"reciprocal" in addition to their direct financial impact.

If the Supreme Court invalidates the use of IEEPA for tariffs, the legal framework of U.S. trade policy will revert to what Congress actually enacted: a series of targeted authorities with built-in limitations. That shift would mark the end of the most expansive unilateral tariff power the executive branch has ever asserted.

Yet that might not mean a stable, tariff-free future for importers when Scott Bessent says, “We can recreate the exact tariff structure with [sections] 301, with 232, with 122,” during an onstage interview at The New York Times DealBook Summit.

IEEPA was never designed to serve as a tariff statute, but the way the administration attempted to use it—imposing broad import duties immediately upon declaring a national emergency, without product-specific findings or the procedural safeguards built into trade laws effectively turned it into a policy blank check. By contrast, Article I, Section 8 places the taxing power with Congress, and the fallback statutes simply do not provide anything close to that level of unilateral authority.

The backup options are not blank checks. 

And although some commentators believe the White House might attempt to creatively[7] stitch these authorities together into something resembling a replacement, the reality is that any such effort will be fragmented, unpredictable, and vulnerable to legal challenge.

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[1] MarketWatch, “The Supreme Court’s ruling on Trump’s tariffs is looming. His Treasury chief says this is the backup plan to keep them going.” (Dec. 3, 2025), https://www.marketwatch.com/story/the-supreme-courts-ruling-on-trumps-tariffs-is-looming-his-treasury-chief-says-this-is-the-backup-plan-to-keep-them-going-1d987711  

Business Insider, “Trump can still impose sweeping tariffs if the Supreme Court rules against him. Here's how.” (Dec. 1, 2025),  https://www.businessinsider.com/trump-tariff-law-options-supreme-court-decision-2025-11

[2] Congressional Research Service. Section 301 of the Trade Act of 1974 – IF11346. Congress.gov. https://www.congress.gov/crs-product/IF11346

[3] Congressional Research Service. Section 232 of the Trade Expansion Act of 1962. Congress.gov.  https://www.congress.gov/crs-product/IF13006

[4] Presidential Action. If Commerce determines that there is no threat to U.S. national security, no further action is taken. If Commerce determines that there is such a threat, the President has up to 90 days to decide (1) whether to concur with Commerce's determination; and (2) if concurring, whether to act. If the President opts to act, then the nature and duration of the action shall be specified, and the President has 15 days to implement that action. Within 30 days after deciding whether or not to take action, the President must submit a written statement to Congress providing the reasons for that decision.

[5] In the Crude Oil Windfall Profit Tax Act of 1980, however, Congress amended Section 232 by creating a joint disapproval resolution provision under which Congress could override presidential actions in the case of adjustments to petroleum or petroleum product imports.

[6] Amicus Brief, Brief of Trade Scholars in Economics, Politics, and Law as Amici Curiae in Support of Respondent V.O.S. Selections, Donald J. Trump, President of the United States, et al., v. V.O.S. Selections, Inc., et al., Case No. 25-250, https://www.supremecourt.gov/DocketPDF/24/24-1287/381040/20251029162000869_25-250%20Amici%20Brief.pdf   

[7] Business Insider, “Trump can still impose sweeping tariffs if the Supreme Court rules against him. Here's how.” (Dec. 1, 2025),  https://www.businessinsider.com/trump-tariff-law-options-supreme-court-decision-2025-11