Lawrence J. Liu (Stanford Law School) has posted No More IEEPA Tariffs? The Legal Bases of an Alternative Regime on SSRN. Here is the abstract:
Since retaking office in January 2025, President Trump has accelerated and expanded his use of tariffs. Many of these actions have been taken pursuant to a novel application of the International Emergency Economic Powers Act (IEEPA). Continued reliance on IEEPA is uncertain, however, as the Supreme Court considers whether to invalidate the President’s IEEPA tariffs in Trump v. V.O.S. Selections. As interested observers await this likely landmark decision, the administration is already signaling that its tariff regime will continue even in the event of an adverse decision.
This Essay thus trains attention on the likely legal bases of that alternative regime. I focus on six tools that have or could be mobilized by the executive: (1) Section 232 national security trade actions, (2) Section 301 retaliatory trade actions, (3) Section 201 safeguards, (4) antidumping and countervailing duties, (5) Section 338 discriminatory act actions, and (6) Section 122 balance of payments actions. In addition to describing this non-IEEPA tariff toolkit, I highlight considerations that might affect future use of these statutes, including the actors typically involved in demanding and administering these laws, the nuances of their respective processes, their vulnerability to legal challenge, and the expected scope and duration of resulting trade actions. This deeper understanding of the variation within and between relevant authorities yields lessons not only for a motivated executive, but also for reformers seeking examples of how to limit presidential tariff powers.