What’s Trump’s plan if the court strikes down his emergency tariffs?

President Trump’s signature international economic policy tool — sweeping and sudden tariffs based on declared economic emergencies — are under fire at the Supreme Court, with a decision expected in the coming weeks. Critics of the administration’s trade policy are putting a lot of stock in this case, hoping that a rebuke from the court will force the administration to reverse course on tariffs.  

These hopes are misplaced. The day after the Supreme Court heard oral argument, the president acknowledged that his administration may “have to develop a ‘game two plan’” if the court’s ruling does not go the administration’s way.  

But what would “game two” look like? Based on my experience as a U.S. government trade attorney during both Trump administrations, I expect “game two” tariffs to arrive swiftly, rely on multiple statutory authorities, and ultimately succeed in replacing all or most of the tariffs currently under Supreme Court scrutiny.    

The case before the court relates only to tariffs implemented under the International Emergency Economic Powers Act. The act is the statutory authority for the “liberation day” reciprocal tariffs on goods from most trading partners; fentanyl-related tariffs on goods of Mexico, Canada, and China; and foreign policy-focused tariffs on goods of India and Brazil. If the Supreme Court rules against the administration, the race will be on to replace these tariffs with equivalent tariffs under different statutory authorities.

Replicating the “liberation day” reciprocal tariffs will prove most challenging. As a first step, I expect the administration to rely on Section 122 of the Trade Act of 1974, which permits the imposition of tariffs as high as 15 percent for up to 150 days in response to “fundamental international payments problems.” New Section 122 tariffs could arrive days after the Supreme Court’s ruling. The president could impose these tariffs in an executive order — a simple document that requires minimal process and can be drafted in an afternoon.    

Would this use of Section 122 be challenged in court? Almost certainly. But the administration may not care. Section 122 tariffs have a 150-day time limit, and thus would serve only as a stopgap.

The administration could use that 150-day window to launch phase two: a series of investigations that would serve as the foundation for more enduring country-specific tariffs. The basis for these investigations is likely to be Section 301 of the Trade Act of 1974. Section 301 allows the Office of the U.S. Trade Representative to implement tariffs in response to discriminatory or unreasonable trade practices.

Endeavoring to investigate all U.S. trading partners at once would pose logistical challenges for my former colleagues, the talented but small staff of the U.S. Trade Representative. However, options exist to limit the administrative burden. First, the administration could investigate only the 15 largest exporters to the U.S. This would lessen the administrative load substantially, while still capturing almost 80 percent of total U.S. imports. Precedent exists for Section 301 investigations of this volume: during the first Trump administration, I helped launch ten Section 301 investigations in a single day.  

Second, the U.S. Trade Representative could limit the scope of these investigations by framing the “unreasonable” act under investigation as the maintenance of a persistent trading surplus with the United States. This is an objective, measurable fact — either a trading partner has a surplus with the United States, or it does not. If cabined in this manner, the U.S. Trade Representative could complete these investigations quickly and in high volume.  

By concluding the Section 301 investigations before the 150-day clock on the Section 122 tariffs expires, the U.S. Trade Representative could transition seamlessly from reciprocal tariffs disallowed by the Supreme Court to reciprocal tariffs based on alternative authorities.  

Section 301 also would likely be the administration’s statute of choice to replicate the more targeted tariffs in place today on goods of Mexico, Canada, China, India, and Brazil. With respect to Brazil, the administration has already tipped its hand. In July, when Trump announced 40 percent additional tariffs on Brazilian goods, he also disclosed — in the very same Truth Social post — the initiation of a Section 301 investigation of Brazil. The signal was clear: The administration had identified Section 301 as a viable Plan B (or “game two,” to borrow the president’s phrasing) if the Supreme Court does not rule in its favor.  

None of this is meant to suggest that the tariff case before the Supreme Court is meaningless. Pivotal questions of constitutional law hang in the balance. Depending on the outcome, U.S. importers could be in line for massive tariff refunds.

But critics of the president’s trade policy should temper their expectations. A Supreme Court decision striking down the tariffs will not convince the administration to abandon its signature economic and foreign policy tool. Instead, expect the administration to double down on tariffs as we enter “game two” of the president’s trade policy agenda.

Patrick Childress is a partner in the international trade practice at Holland and Knight LLP in Washington. He formerly served as Assistant General Counsel at the Office of the U.S. Trade Representative during both Trump administrations and throughout the Biden administration.