President Donald Trump and his administration are exuding confidence about their chances in the tariff case heading into a Supreme Court hearing this week, but they have a backup plan just in case the justices rule against him – and it ultimately could force Congress to come back to work.
If the court he largely shaped finds that Trump exceeded his authority by slapping steep tariffs on countries around the world, aides have identified trade statutes that could authorize the president to keep pressure on U.S. trade partners and keep tariff revenue coming in, six current and former White House officials and other sources told Politico.
“They’re aware there are a number of different statutes they can use to recoup the tariff authority,” said Everett Eissenstat, former deputy director of the White House’s National Economic Council in Trump’s first term. “There’s a lot of tools there that they could go to to make up that tariff revenue.”
The president has cited the International Emergency Economic Powers Act passed in 1977 to justify his tariff regime, but if the court limits that power, the administration warns that could jeopardize his "America First" foreign policy.
“This is all about foreign policy. This isn’t 1789 where you can clearly delineate between trade policy, economic policy, national security policy and defense policy. These things are all completely interconnected,” said Alex Gray, who served as National Security Council chief of staff and deputy assistant to the president in the first Trump administration. “To diminish the tools he has to do that is really dangerous.”
White House allies privately concede the tariff strategy is on shakier ground than they publicly admit, and they said even a partial loss in the Supreme Court could undercut Trump's agenda.
“There’s no other legal authority that will work as quickly or give the president the flexibility he wanted,” said one supporter of the tariffs who was part of a group that filed an amicus brief in support of them. “They seem very confident that they’re going to win. I don’t see why they’re confident at all. Two different courts that have ruled extremely harshly on this.”
However, White House aides have convinced themselves the court won't strip Trump of his negotiating tool.
“Frankly, there’s a little bit of bravado, like, they’re not going to knock these down,” said one person close to the White House.
Global trading partners are expecting Trump will find some way to keep the tariffs in place if the court rules against him, but others are convinced the best way to address the topic permanently is for the president to appeal to Congress, although the House remains out of session during the government shutdown and the Senate is largely focused on confirming judicial nominees.
At least four Republicans are openly opposed to the tariffs, and it's not clear whether House leaders want a floor vote on the matter.
“At the end of the day, all this comes back to Congress,” Eissenstat said. “Maybe Congress will step up its role post hearing, post ruling. We’ll see.”
