The Trade Statutes Trump Will Use to Keep Imposing Tariffs

The Supreme Court ruling is a blow, but the administration has other trade tools at its disposal.

Friday’s Supreme Court ruling eliminated President Trump’s preferred tool for imposing tariffs. But he moved quickly to utilize other tools at his disposal to keep taxing imports, including a 1974 trade provision known as Section 122, which no president has ever invoked.

Mr. Trump, speaking from the White House, referenced the dissent from Justice Brett M. Kavanaugh, who noted that “the Court’s decision is not likely to greatly restrict Presidential tariff authority going forward.”

In addition to Section 122, Mr. Trump said he would use two other trade statues — one that allows the president to impose tariffs on specific products and another that allows for tariffs on an entire country.

All of these options are far less nimble than the International Emergency Economic Powers Act, which Mr. Trump used to impose — or threaten — tariffs on a whim. And they could also be subjected to a legal challenge.

Here’s a look at the trade provisions Mr. Trump says he will invoke:

Section 122

Mr. Trump said that he would put in place a 10 percent global tariff using Section 122 of the 1974 Trade Act. The levies would go into effect in about three days, the president said.

The statute says a president can impose duties to deal with “large and serious” balance-of-payments deficits — an issue related to trade deficits, which some of the president’s IEEPA tariffs purport to address. But it also imposes a 150-day limit on the tariffs, unless Congress votes to extend them.

At least temporarily, it would not be dissimilar from the baseline 10 percent tariff that Mr. Trump had imposed globally, or the 15 percent tariff that he had clinched in deals with other countries over the past year.

Clark Packard at the conservative Cato Institute noted that Section 122 would allow Mr. Trump to act fast. But a lot remains to be seen about its actual power. “With the statute never previously invoked, there’s no judicial precedent clarifying its limits,” Mr. Packard wrote.

Section 232

One powerful option in Mr. Trump’s toolbox is Section 232 of the Trade Expansion Act, which allows the president to impose tariffs on foreign products in the interest of national security. Mr. Trump has already subjected a widening roster of goods to these duties, including autos, steel and copper, along with other goods.

The president did not indicate whether he planned additional trade actions using Section 232 but said all existing tariffs under the statute would remain in place.

Unlike the International Emergency Economic Powers Act, which the president had used until Friday to impose tariffs immediately, Section 232 requires a Commerce Department investigation into whether an import poses a national security risk. By law, the commerce secretary has 270 days to present findings from the investigation to the president. If the investigation determines that a specific import poses a national security threat, the president can impose tariffs.

So far, roughly 10 percent of U.S. imports are subjected to Section 232 tariffs.

Section 301

The president said he would use another set of powers, Section 301, to open investigations into unfair trade practices, which could yield additional tariffs.

Section 301 of the 1974 Trade Act allows Mr. Trump to impose duties after conducting an investigation and finding that a country engaged in trade practices that were unfair, unreasonable or violations of previously signed trade deals.

Mr. Trump has repeatedly invoked this power since his first term in office, primarily to impose steep tariffs on China, whose leader, President Xi Jinping, he is set to meet in the coming weeks.

Last year, Mr. Trump also opened an investigation into Brazil using Section 301, as part of a series of actions he took in response to that country’s treatment of its former president, Jair Bolsonaro, his political ally.

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