The “Backup Plan”: How the Administration May Rebuild the Tariff Wall

The Supreme Court’s 2026 ruling against the use of the International Emergency Economic Powers Act (IEEPA) for broad tariffs was a significant hurdle, but it did not leave the President’s trade agenda entirely toothless. Legal experts and administration officials have already pivoted to a “Plan B,” which involves a patchwork of existing trade statutes. While these authorities are slower and more targeted, they provide the executive branch with enough leverage to maintain significant pressure on global trading partners.

The New Legal Arsenal

The administration is expected to rely on three primary pillars of trade law that were either untouched by the Supreme Court’s ruling or are being rapidly “re-activated” through new investigations.

1. Section 232: The “National Security” Vault

Under the Trade Expansion Act of 1962, the President can impose tariffs if a product is imported in quantities that “threaten to impair national security.” Unlike IEEPA, Section 232 has been tested and largely upheld by courts.

• Current Status: The administration has already launched 17 new investigations since early 2025.
• Targeted Sectors: Semiconductors, robotics, pharmaceuticals, and critical minerals are at the top of the list. By defining “national security” to include “industrial resilience,” the administration can effectively tax the most vital components of the modern economy.

2. Section 301: Punishing “Unfair” Practices

Section 301 of the Trade Act of 1974 allows the U.S. Trade Representative (USTR) to retaliate against countries that engage in “unreasonable or discriminatory” trade practices.

• The China Strategy: Most tariffs on Chinese goods fall under this category. While the 2025 global IEEPA tariffs are gone, the 301 tariffs on Chinese technology and manufacturing remain in force.
• Future Use: The USTR can initiate new 301 investigations into other countries—such as those in the EU or South America—by alleging they unfairly disadvantage U.S. exporters.

3. Section 122: The “Balance-of-Payments” Emergency

Perhaps the most potent “sleeping” power is Section 122 of the Trade Act of 1974. This allows the President to impose temporary tariffs of up to 15% for 150 days to address “large and serious” balance-of-payments deficits.

• The Loophole: While temporary, the administration could theoretically re-impose these tariffs every 150 days, creating a “rolling” tax that mimics a permanent tariff.

Comparison of Presidential Tariff Authorities

The Political and Legal Reality

The shift from IEEPA to these alternative authorities means the “overnight” global trade war has been replaced by a “war of attrition.” Every new tariff will now require a formal investigation, public hearings, and detailed evidentiary findings. This makes it harder for the administration to use tariffs as a sudden bargaining chip in diplomatic negotiations, but it creates a more durable legal foundation that is harder for courts to strike down.

Infographic: Active Section 232 Investigations (as of February 2026)

The following 17 product categories are currently under investigation by the Department of Commerce for their potential impact on U.S. national security, potentially leading to new tariffs under Section 232.