Constitutional and statutory constraints, however, loom large. Absent a viable emergency order under IEEPA, only existing statutory tools remain, each with built-in limits. The relevant authorities include Section 122 of the Trade Act of 1974 (balance-of-payments tariffs), Section 338 of the Tariff Act of 1930 (retaliation for foreign discrimination), Section 232 of the Trade Expansion Act of 1962 (national-security tariffs), and Section 301 of the Trade Act of 1974 (retaliation for unfair trade practices). None of these was designed to authorize broad, permanent tariff walls; each requires specific findings or conditions and has proven controversial or unused in history.
Section 122 authorizes the President to impose temporary import restrictions to address “fundamental balance-of-payments problems.” It requires a finding that severe U.S. payment imbalances exist – such as large deficits or imminent currency depreciation – that special import measures can remedy. In theory, this matches the administration’s rationale that persistent trade deficits justify new tariffs. In practice, however, Section 122 has never been invoked since its enactment in 1974. Courts would likely scrutinize any sudden, broad recourse to Section 122 after rejecting IEEPA. The language of the statute is open-ended enough that a President could claim it has been met by a structural trade imbalance, and courts often defer to presidential economic judgments. But even if the statutory findings could be justified, other strict limits apply. Any tariffs under Section 122 automatically expire after 150 days unless Congress enacts an extension. Given recent congressional rejections of the Trump tariffs, it is doubtful that Congress would support an unpopular tariff. Moreover, Section 122 requires that duties be applied non-discriminatorily (most-favored-nation) and limits temporary tariffs to 15%. By contrast, the current “reciprocal” program imposes higher and country-specific tariffs. Because Section 122 would bar tailoring duties by country and cap the rate, it could sustain only a temporary, modest, and evenly applied tariff. The administration has reportedly considered using Section 122 as a stopgap until more permanent measures are devised, but courts generally frown on the government using successive statutes to evade rulings. Even more novel proposals, such as recouping tariff revenue via IEEPA-style licensing fees, would likely be struck down as exceeding the statute’s scope. In short, Section 122 offers only a narrow, temporary tool rather than a substitute for an indefinite, broad tariff wall.
Section 338 of the Tariff Act of 1930 empowers the President to impose new duties on products of any foreign country that “discriminates in fact” against U.S. commerce to disadvantage U.S. goods. Although the language is extremely broad, this provision is dormant and untested. It was enacted in the Smoot-Hawley Tariff era to counter the 20th-century problem of imperial preferences and discriminatory trading blocs (British colonial tariffs that favored imperial goods). Section 338 has never been used to levy tariffs because circumstances matching its terms are hard to find today. Global trade now operates under widespread nondiscrimination rules (WTO’s MFN norm), so there are few examples of a country affording worse treatment to U.S. products outside of special unions or agreements (which themselves are typically exempt). Absent clear evidence of direct country-based discrimination against U.S. exports, invoking Section 338 would rest on fine factual distinctions. The clearest possible cases might involve specific technical or regulatory barriers (product standards or sanitary measures) in which a trading partner’s policy on U.S. goods is demonstrably less favorable than on other goods. Even if such narrow cases existed, Section 338 could only justify targeted tariffs on particular products and countries – not blanket import surcharges on all trading partners. Section 338 is a remedial retaliation statute, not a general tariff grant. If courts disapprove of the IEEPA-based scheme on separation-of-powers or nondelegation grounds, they will likely apply a similar reading to Section 338. An attempt to revive the entire reciprocal tariff wall under Section 338 would be an obvious end run around Congress. Indeed, it would require attributing to Congress an intent to delegate near-unlimited power to the President in the name of “retaliation,” which Congress never clearly did. Accordingly, while Section 338 remains a weapon against provable discrimination, it is unlikely to underwrite comprehensive, multi-country tariffs. Judicial authorities might view any expansive use as incompatible with the provision's limitations, especially once the IEEPA path is closed.
Section 301 of the Trade Act of 1974 empowers the USTR to act against any foreign country enacting “unjustifiable” or “unreasonable” trade practices burdening U.S. commerce. It is a common tool of U.S. trade policy – from targeting Chinese intellectual-property violations to enforcing U.S. trade agreements. The process under Section 301 is again quite structured: a petition is filed, the USTR investigates, finds a breach of agreed-upon obligations or unfair practices, and may impose tailored remedies such as increased duties. Section 301 is inherently retrospective and selective. To rely on Section 301 for the broad reciprocal tariffs would require identifying specific illegal acts by each trading partner that justify subsequent export duties. This is contrary to Section 301’s design, which presumes an underlying violation of trade commitments. If the administration asserts Section 301 wholesale, it would be “killed on its face,” as one analyst notes, since it would be not for any particular grievance, but to reimpose old tariffs. Courts would likely view this as ignoring the Supreme Court’s separation-of-powers ruling. Realistically, Section 301 can support only individual cases – for example, if a country breached a free trade agreement or enacted a discriminatory policy against U.S. products. Any Section 301 action could be challenged on the basis that the investigation did not properly find an “unreasonable” foreign act, but was issuing a tariff on policy grounds. Fundamentally, Section 301 remains available to penalize specific unfair practices, but it does not authorize a broad cross-cutting tariff wall. Any attempt to use Section 301 in such a sweeping way would likely fail a court’s separation-of-powers test because Congress’s delegation is confined to remedying identifiable wrongs, not creating general tariff policy.
Under the Constitution, the power to impose duties rests squarely with Congress. Article I, Section 8 grants Congress authority to regulate foreign commerce and collect duties. The Framers understood that uniting legislative and executive functions in one branch would threaten liberty. Thus, any scheme that effectively has the President “imposing tariffs at will” on a majority of imports would undermine Article I. If the Supreme Court strikes down the IEEPA tariff order on separation-of-powers or nondelegation grounds, that principle will have further implications. The Court may treat the decision as affirming broad tariff-setting authority cannot be handed to the President by implication. All alternative statutes under consideration contain at least some Congress-imposed check on executive action: factual findings, procedural steps, time limits, or scope limits. A narrow reading, consistent with the separation of powers, would hold the President to those checks. For example, if Congress meant the President to impose tariffs to correct a proven balance-of-payments crisis, a judicial ruling could prevent the administration from stretching Section 122 beyond that scenario. Likewise, Congress never intended Section 338 to become a catchall tariff power, but meant for actual instances of discrimination. Each statute’s history suggests congressional hesitance to confer unlimited discretion. The Peterson Institute’s analysis emphasizes that Congress “extended a hand, and the president took an arm” – implying that the drafters of these laws likely assumed they would supplement, not supplant, Congress’s tariff authority. Thus, if the Court’s invalidation of IEEPA highlights a nondelegation concern, similar logic would apply to any expansive interpretation of other trade statutes. Recent Supreme Court decisions show growing scrutiny of agency authority and executive overreach. While these statutes do not have a clear judicial invalidation history, the risk is evident: if a nondelegation or separation-of-powers rationale is applied, the President’s broad swath of duties may be curtailed.
