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The President possesses the authority to impose tariffs under a variety of trade statutes that he can turn to if the Supreme Court rules that IEEPA does not, or constitutionally cannot, provide broad tariff-setting authority to the executive. Some of these authorities, including Section 301 of the Trade Act of 1974 and Section 232 of the Trade Expansion Act of 1962, require the executive branch to conduct investigations and prepare bespoke reports before imposing new tariffs. However, two authorities empower the President to potentially impose tariffs without any predicate agency action: (1) Section 122 of the Trade Act of 1974, which empowers the President to impose tariffs of up to 15 percent for a period of 150 days to address balance-of-payment problems; and (2) Section 338 of the Tariff Act of 1930, which permits the President to impose new or additional tariffs up to 50 percent without any durational limit to counter discrimination by foreign governments against U.S. commerce.

Neither of these authorities have been previously challenged in court. Section 122 has never been used, and Section 338 has also largely gone unused. In particular, Section 338 was invoked only a few times shortly after its enactment in 1930, but no president has directly applied it to impose tariffs. Because these authorities may allow the President to impose tariffs without preceding action from an agency or Congress, the President could notionally seek to invoke them in swiftly responding to a potential ruling from the Supreme Court holding IEEPA tariffs unlawful. There are at least two possible ways the Trump Administration—acting unilaterally—might try to use other legal bases to authorize tariffs previously collected under IEEPA. Both actions would present challenges, but the Administration has consistently pursued aggressive action in the face of uncertain legal landscapes, in the trade context and others. Alternatively, the President could attempt to work with Congress to retroactively authorize the IEEPA tariffs.