What's Actually at Stake
The IEEPA tariff litigation explained in 60 seconds
The February 2025 and April 2025 emergency tariffs used the International Emergency Economic Powers Act (IEEPA) as their legal foundation. Courts below have already held these tariffs unlawful, and the Supreme Court heard arguments in November 2025.
Can IEEPA—a statute about economic sanctions during national emergencies—be used to impose unlimited import duties for an unlimited duration on virtually all countries? The word "tariff" appears nowhere in the statute.
If the Supreme Court narrows or rejects IEEPA-as-tariff-authority, the practical question becomes: which other statutes can do similar work—and what tradeoffs come with each?
*Hypothetical distribution based on statutory constraints. Actual implementation TBD.
SCOTUS Watch: How Are the Justices Leaning?
Learning Resources, Inc. v. Trump — Oral arguments Nov. 5, 2025
Lower courts ruled IEEPA tariffs exceed presidential authority and are unlawful. The Court of International Trade struck them down (May 2025), affirmed by the Federal Circuit (Aug. 2025). Tariffs remain in effect pending Supreme Court review.
Decision anticipated late 2025 or early 2026. If tariffs invalidated, administration has stated it can use other trade laws to "replicate" tariff revenue.
Based on oral arguments, a 5-4 or 6-3 ruling against IEEPA tariffs appears likely, with Roberts, Gorsuch, Barrett, and Sotomayor as the probable core. Alito and Kavanaugh are the swing votes. Even if IEEPA falls, the Court may give the administration time to transition to alternative authorities.
Current IEEPA Tariff Rates by Country
Click column headers to sort • Click rows for details
| Country ↕ | Region ↕ | IEEPA Rate ↕ | Eff. Date ↕ | Status |
|---|
The Tariff Authority Menu
Quick comparison with fast/slow and broad/narrow tradeoffs
Legend
| Tool | What it's for | Scope | Speed | Key Constraints / Risks |
|---|---|---|---|---|
|
🛡
Section 232
19 U.S.C. § 1862
|
National security import restrictions | 🎯 Sector/Product | ⌛ Commerce process | Requires Commerce investigation + findings; 270-day report; presidential decision windows |
|
⚖
Section 301
19 U.S.C. § 2411
|
Retaliation for unfair trade practices | 🎯 Country/Practice | ⌛ USTR process | Needs USTR investigation/record; trade-law framing; invites lobbying for exclusions |
|
🏭
Section 201
19 U.S.C. § 2251
|
Temporary relief from import competition | 🎯 Product/Industry | ⌛ ITC investigation | Must show "serious injury" + causation; temporary by design; WTO-risk often discussed |
|
📈
Section 122
19 U.S.C. § 2132
|
Short-term import surcharge for BOP issues | 🌎 Potentially Broad | ⚡ Fast (by design) | Hard cap: ≤15%, ≤150 days unless Congress extends. Never used. |
|
🔨
Section 338
19 U.S.C. § 1338
|
Counter discrimination against U.S. commerce | 🎯 Country-focused | ⚡ Fast (rare tool) | Historically unused; can be aggressive; can reach exclusion; significant litigation heat |
If SCOTUS Rules Against: Administration Playbook
Click each scenario to see the likely government response
Likelihood: HIGH. Commerce Department reportedly has 232 investigations ready to launch for semiconductors, pharmaceuticals, rare earths, and critical minerals. This is the most "court-proof" alternative.
Products in target sectors (tech hardware, pharma APIs, minerals) face highest risk. Start monitoring Commerce Federal Register notices for investigation announcements.
Likelihood: HIGH for China continuation, MEDIUM for other countries. The existing China 301 framework provides a template. USTR may expand product lists or target new countries (Vietnam, Mexico for transshipment).
Section 301 has robust exclusion processes. If your products face tariffs, you can apply for exclusions based on: no domestic substitute available, significant economic harm, or product not related to unfair practice.
Likelihood: MEDIUM. Never used before, but offers fastest deployment. The 15% cap and 150-day limit make it a "bridge" while 232/301 processes develop. Significant legal uncertainty.
First-ever use means courts will be writing on blank slate. Trading partners will likely challenge at WTO. High diplomatic blowback. But: provides immediate revenue while long-term authorities develop.
Likelihood: LOW but not zero. The "dusty statute" approach. Administration has reportedly explored using Section 338 for "reciprocal" tariffs based on theory that countries with higher tariffs than US are "discriminating" against US commerce.
No precedent for modern use. Courts may read narrowly or strike down. Diplomatic firestorm guaranteed. But: provides fastest, broadest authority if administration is willing to accept litigation risk.
Likelihood: LOW in short term. If SCOTUS rules that IEEPA doesn't authorize tariffs, the "proper" response is for Congress to pass new legislation. But: Congress moves slowly, and partisan dynamics make this uncertain.
Congressional authorization is the most legally bulletproof approach. Even if other strategies succeed, explicit legislation removes ongoing litigation uncertainty. Watch for bipartisan "fair trade" coalitions.
Tariff Impact Calculator
Estimate your exposure under different statutory frameworks
The "Potential IEEPA Refund" shows what you might recover if SCOTUS strikes down IEEPA tariffs and you've filed proper protests. The alternative authority estimates show what you'd likely pay under replacement frameworks. Net savings = IEEPA Refund minus the highest applicable alternative rate.
The Big Five, Explained
How you'd actually use each statutory authority
The administration can plausibly frame target goods/inputs as a national security supply-chain issue. Think steel/aluminum logic extended to semiconductors, pharmaceuticals, rare earths, or critical minerals.
The Statutory Process
Generates a formal record (Commerce investigation + report), which helps defend against litigation. Courts have given significant deference to executive judgment on what constitutes a security threat.
Can be broad inside a sector, hard to predict, and sticky once in place. The 2018 steel/aluminum tariffs (25% on steel, 10% on aluminum) remain in effect today.
This is the authority behind the 2018 steel and aluminum tariffs. Those tariffs survived legal challenges and remain in effect. The statutory language explicitly allows the President to "adjust imports" when national security is threatened, which courts have interpreted broadly.
The goal is to pressure another country over "acts, policies, or practices" viewed as unreasonable/discriminatory that burden U.S. commerce. Classic example: the modern China 301 waves targeting IP theft, forced technology transfer, and discriminatory licensing.
The Statutory Process
- USTR investigates alleged unfair foreign practices (can be self-initiated or petition-based)
- Public comment periods and hearings (transparency helps build record)
- USTR determination of whether practices are unfair/unreasonable
- Product list development: USTR proposes specific tariff lines, more public comment
- Presidential approval and implementation
- Annual review of effectiveness
Can be tailored to a specific country/practice and then expanded to product lists. The extensive administrative record has helped the China tariffs withstand court challenges.
Procedurally heavier than "declare emergency → tariff." The record-building process invites targeted lobbying for exclusions and product carveouts—months of work to get right.
This is the authority behind the massive China tariff regime (Lists 1-4A). The USTR identified practices like forced technology transfer, IP theft, and discriminatory licensing restrictions. Result: multiple tranches covering billions in Chinese imports, with rates from 7.5% to 25%.
The domestic industry wants breathing room from import competition (serious injury / threat). This is a quasi-remedial, time-limited protection tool—not an all-purpose geopolitical lever.
The Statutory Process
- Petition filed by domestic industry, workers, or trade rep
- ITC investigation (U.S. International Trade Commission conducts fact-finding)
- Key findings required:
- Imports have increased
- Domestic industry is seriously injured or threatened
- Imports are a "substantial cause" (important, but not necessarily most important)
- ITC recommendation to President (tariffs, quotas, or other relief)
- Presidential decision within 60 days
Well-established process with clear judicial review standards. ITC is seen as relatively neutral/technocratic. Good for specific industries under competitive pressure.
Relief is explicitly temporary (4 years max, with possible 4-year extension). Must show progressive liberalization (duties declining over time). WTO rules require compensation to affected trading partners or they can retaliate.
Section 201 was used for washing machines (2018: 20-50% declining over 3 years), solar panels (2018: 30% declining to 15% over 4 years), and historically for steel (2002, though that was controversial and partially withdrawn early). These are defensive, temporary measures—not strategic trade war weapons.
You want something broad and fast while building a longer record elsewhere. The statute is explicit: temporary import surcharge not to exceed 15% and a period not exceeding 150 days unless Congress extends.
The Statutory Trigger
- President determines U.S. has a "large and serious" balance-of-payments deficit
- OR: U.S. dollar is under "severe pressure" in foreign exchange markets
- Meant as emergency BOP (balance-of-payments) medicine
What You Can Do
- Impose import surcharge up to 15%
- OR impose quotas/other restrictions
- Apply broadly across products/countries
- Must be nondiscriminatory (can't single out one country)
Can be deployed much faster than 232 or 301. No lengthy investigation required—just presidential finding + consultation with Congress.
A substitute for 30-50% worldwide duties. The 15% cap is hard-wired, and 150 days is short (though Congress could extend). Nondiscrimination requirement means no targeting specific countries.
Section 122 has never been used. Enacted in 1974 during dollar weakness and inflation concerns, but no president has pulled this trigger. That makes it both intriguing (no limiting precedent) and risky (courts would be writing on a blank slate; trading partners would view it as aggressive and potentially WTO-illegal).
You want a quick lever aimed at countries alleged to discriminate against U.S. commerce. Some have floated it for "reciprocal" tariff concepts (if Country X has Y% average tariff and we have Z%, that's "discrimination").
The Statutory Language (Paraphrased)
- When the President finds any country maintains duties/restrictions that unduly burden/discriminate against U.S. commerce
- He may direct that imports from that country be excluded
- OR may impose duties/restrictions on a similar basis
It can move fast and references discrimination-style triggers. Reuters reported internal administration discussions about using it for "reciprocal tariff" mechanisms.
Rarely used, politically explosive, and would invite aggressive litigation and diplomatic blowback. The statutory language about "exclusion" is extraordinarily broad—potentially authorizing a complete import ban.
Section 338 dates to the Tariff Act of 1930 and hasn't seen real-world use in modern trade practice. When statutes sit unused for 90+ years, that creates interpretive problems: What counts as "unduly burden"? What does "similar basis" mean? Courts might read it narrowly (to avoid constitutional problems with delegation) or broadly. Using it would be the legal equivalent of detonating a bomb with an unknown yield.
🎯 Match Your Objective to Your Tool
The IEEPA Litigation Timeline
Key milestones and what comes next
The government has publicly signaled it can recreate significant revenue using alternative tools if IEEPA falls. During oral arguments, Solicitor General John Sauer acknowledged that alternative authorities exist. Justice Alito specifically noted it's a "realistic possibility" the administration would need to pursue a new approach. Don't expect tariffs to simply disappear if IEEPA is struck down. Expect them to be restructured, reframed, and reimposed under different legal theories.
Importer Reality Check: Refunds Are Procedural, Not Automatic
What you need to do NOW to preserve refund claims
If IEEPA tariffs are invalidated, importers still face timing/CBP mechanics (liquidation, protests, and other administrative pathways). Your refund claim can die if you miss deadlines.
A recent Court of International Trade ruling (Dec. 2025) held that liquidation will not bar judicial refunds for plaintiffs in pending cases challenging IEEPA tariffs. The court found the government "estopped" from arguing finalized liquidations prevent refunds.
Important caveat: This protection currently applies only to importers who brought court actions. If you haven't filed suit, you could still be unable to recoup duties if your entries liquidate unprotested.
The Liquidation Clock
Customs and Border Protection (CBP) "liquidates" entries (finalizes duty assessments) on a rolling basis—typically ~314 days after entry. Once liquidated, you have 180 days to file a protest. If you miss that window, your refund claim is dead. Simply filing administrative protests may not guarantee recovery if tariffs are overturned—court action may be required.
The Refund Won't Be Instantaneous
Even if the Supreme Court strikes down the tariffs:
- CBP will need to issue implementing instructions (weeks/months)
- Some refunds may be automatic if entries aren't liquidated yet
- Liquidated entries require formal protest → denial → Court of International Trade (potentially years)
- Interest accrues at Treasury rates—currently 7% per annum for non-corporate importers and 6% for corporations (per 19 U.S.C. §1505)
As of August 29, 2025, the de minimis exemption (formerly allowing duty-free imports under $800) has been suspended for all countries. This affects e-commerce shipments and direct-to-consumer imports.
The Replacement Tariff Wrinkle
What if the administration immediately imposes new tariffs under Section 232 or 301 on the same products? Your "refund" might be offset by new obligations:
What's Your Next Move?
Action items based on your exposure level
The Supreme Court case isn't really about whether tariffs go away—it's about which legal framework governs them. Each alternative statutory authority comes with different procedural requirements, substantive limitations, political dynamics, and litigation vulnerabilities.
If You've Paid Significant IEEPA Tariffs:
Work with customs counsel NOW on protective protests and documentation. The clock is ticking on liquidation deadlines. Even if you think you have time, CBP processing backlogs can catch you off guard.
If You're Facing Ongoing Tariff Exposure:
Model scenarios under each alternative statutory framework. Which products/countries are most vulnerable under Section 232 (national security) vs. Section 301 (unfair practices)? The targeting patterns will differ significantly.
If You're Planning Supply Chain Changes:
Don't assume tariffs disappear, but do assume they'll be more targeted and transparent. That creates planning opportunities for diversification and exclusion requests. The procedural transparency of 232/301 is actually good news for strategic planning.
If You're Watching for Industry Impact:
The public comment periods under 232/301 are your chance to influence outcomes. Start preparing data-driven submissions about economic harm, supply chain realities, and lack of domestic alternatives. Coalition building matters here.
Section 232 and 301 require public processes where you can submit comments, request exclusions, and make your case. IEEPA had none of that. The shift to traditional trade tools means more advance notice, more targeted application, and more opportunity to participate.
A Supreme Court win for challengers doesn't mean trade peace. It means a different kind of trade war with different rules. The transition period between IEEPA invalidation and new-authority implementation could be chaotic (sudden refunds, temporary relief, then new duties).
Need Strategic Guidance on Tariff Exposure?
Whether you're dealing with IEEPA refund claims, preparing for Section 232/301 proceedings, or restructuring supply chains for the post-SCOTUS landscape, I can help you navigate the complexity.