Liberation Day 2.0: Rebuilding the Tariff Agenda Without IEEPA

Background

On February 20th, 2026, the Supreme Court of the United States invalidated tariffs issued under the International Emergency Economic Powers Act (IEEPA) by President Trump, in the landmark case, Learning Resources, Inc. v. Trump (2026) (hereinafter Learning Resources). In a 6-3 decision written by Chief Justice Roberts, the court held that IEEPA did not authorize the tariffs in question, dismissing the Trump Administration’s argument that the language to “regulate importation” encompassed tariffs. A subset of the majority invoked the “major questions doctrine,” a legal principle requiring federal agencies to possess clear congressional authorization on “questions of economic and political significance,” and decided the text of IEEPA did not meet this standard to confer upon the President sweeping tariff authority (FDA v. Brown & Williamson Tobacco Corp., 2000).

President Trump imposed sweeping tariffs at historically high rates under IEEPA, primarily addressing two critical issues posing grave threats to U.S. economic and national security: (1) the erosion of American industry and production at the expense of foreign countries, reflected in trillion-dollar annual trade deficits, and (2) mass inflows of fentanyl causing record opioid deaths (Exec. Order No. 14257, 2025). The bulk of the tariffs was imposed on April 2nd, 2025, to address the former issue, which is commonly referred to as “Liberation Day.”

As outlined in AFPI’s commentary before the Learning Resources decision, titled “Preserving Liberation Day Successes” (Schlagenhauf et al., 2026), the Trump Administration used tariffs as a tool to induce changes in other countries’ policies, primarily on tariff and non-tariff barriers against American goods, and lax enforcement on fentanyl trafficking. By limiting or threatening to limit access to the U.S. economy and fluidly adjusting tariff rates based on how foreign countries reacted to U.S. demands, the Trump Administration sought to obtain sufficient leverage over foreign countries to incentivize them to change such policies. The language in IEEPA that granted the President the right to use economic tools against an “unusual and extraordinary threat, which has its source in whole or substantial part outside the United States, to the national security, foreign policy, or economy of the United States” enabled this flexible approach, as the Trump Administration interpreted the provision to allow tariffs as a means to solve such emergencies (International Emergency Economic Powers Act, 1977, 50 U.S.C. § 1701(a)).

The result of broad tariffs under IEEPA was a historic success: the Trump Administration secured new trade agreements with around 20 countries, which contained pledges to eliminate trade barriers and invest trillions in the U.S., while also prompting actions by other countries to rigorously combat drug trafficking (Schlagenhauf et al., 2026). Quantifiable metrics evince the immense success of this approach: decades-low monthly trade deficits and a year-over-year decrease of over 50%, manufacturing productivity increasing, fentanyl trafficking at the southern border down 50%, and hundreds of billions in new government revenue (Schlagenhauf et al., 2026; Bureau of Economic Analysis, 2026).

Additionally, despite an endless chorus of economists prognosticating economic disaster and massive price increases, inflation was down in 2025, and growth increased after Liberation Day (Macias, 2026; Bureau of Labor Statistics, 2026). To sum, the Trump Administration achieved or made significant progress on many of its stated objectives, while the warnings of the policy’s harshest critics did not come to fruition—a complete vindication of Liberation Day and an America First trade policy.

Consequences of a Return to the Pre-IEEPA Status Quo

Learning Resources immediately jeopardized Liberation Day’s policy successes. After the decision, the tariff rate would have plummeted by 43% without the administration stepping in with immediate policy changes (The Budget Lab at Yale, 2026). Foreign countries, facing significantly lower barriers or construing presidential tariff authority to be far more limited in scope, could suddenly be far less incentivized to change their practices on trade and drug trafficking. Countries that signed new trade agreements since Liberation Day reneging on their commitments is the greatest concern, since most of the deals announced to date are non-binding or are yet to be codified by the respective governments.

A particularly salient challenge that Learning Resources has created for the Trump Administration is the negotiation with the People’s Republic of China (PRC), geopolitical rival and “foreign adversary” (Determination of foreign adversaries, 2024, 15 C.F.R. § 791.4) that is the third largest trading partner of the U.S. The PRC—by means of its export-oriented economy, exploitation of labor, and unfair trade practices—racked up massive trade surpluses and job gains at the expense of millions of American jobs (Lighthizer, 2023). Using economic leverage to fully address such practices is of paramount importance to the U.S. economy and national security, and an objective that President Trump has sought assiduously—the first Trump Administration imposed tariffs on hundreds of billions of dollars’ worth of PRC goods in his first term and up to 125% tariffs under IEEPA in the second term (Bown, 2025).

The Supreme Court’s invalidation of the IEEPA tariffs is a significant loss in bargaining power against the PRC and all other nations that engage in practices that inflict harm upon the U.S., which in turn can lead to the recrudescence of the two major emergencies: high trade deficits, and mass fentanyl inflows. If the Trump Administration desires to avoid this situation, it would need to seek alternative ways to both replicate the tariffs that existed before the Learning Resources decision and seek legal tariff authority that is sufficiently broad to match what the Trump Administration claimed under IEEPA for future policy victories.

Immediate Actions by the Trump Administration

Mere hours after the Learning Resources decision, President Trump announced he would continue exercising his tariff authority by replicating the IEEPA tariffs through several mechanisms, including Sections 122 (Trade Act of 1974, 19 U.S.C. § 2132) and 301 of the Trade Act of 1974 (19 U.S.C. § 2411, 1974), and Section 232 of the Trade Expansion Act of 1962 (19 U.S.C. § 1862, 1962). Later that night, the President issued Proclamation 11012 titled “Imposing a Temporary Import Surcharge To Address Fundamental International Payments Problems” (2026), in which he outlined his strategy to ensure economic policy continuity despite the IEEPA ruling.

President Trump immediately implemented Section 122 tariffs, which authorize the President to impose temporary import surcharges of up to 15% for 150 days to address “large and serious balance-of-payments deficits” (19 U.S.C. § 2132, 1974). In addition, the President clarified through Executive Order 14389 titled “Ending Certain Actions” that existing Section 232 tariffs, which pertain to goods deemed to have national security implications, and Section 301 tariffs, which counter discriminatory practices by foreign governments that burden U.S. commerce, were unaffected by the court decision and will remain in place (Exec. Order 14389, 2026). Currently, Section 232 and Section 301 cover 30% of existing U.S. imports (USTR, 2026a). In March, United States Trade Representative Ambassador Greer initiated 301 investigations against over a dozen countries for their policies related to “structural excess capacity and production in the manufacturing sector,” which signals that the Trump Administration sees the provision as an integral part of its strategy to replicate the IEEPA authority (USTR, 2026b).

Section 122 of the Trade Act of 1974

As AFPI has previously recommended, Section 122's “balance-of-payments” language provided a strong statutory foundation for replicating the IEEPA tariffs in both breadth and depth in the short-term (Schlagenhauf et al., 2026). However, as the piece highlighted, because of its duration and rate limits, the statute best serves as a backstop for other tariff authorities rather than a permanent solution.

History

Although Section 122 had never been invoked before President Trump authorized its use, the statute's text and legislative history are straightforward. Congress enacted the provision in response to President Nixon’s 1971 proclamation of a temporary 10% tariff when he took the U.S. off the gold standard and sought to protect the strength of the dollar (Zirpoli, 2025). While the tariffs were initially upheld by an appeals court, they were eventually ruled unlawful, prompting Congress to question whether the President needed additional trade authority. This deliberation resulted in the Trade Act of 1974, in which Section 122 was included as a provision for addressing the “situations of fundamental international payments problems,” and for “deal[ing] with large and serious United States balance-of-payments deficits” (19 U.S.C. § 2132, 1974). Critically, the section had never been invoked until President Trump’s proclamation in February 2026.

Practical Benefits & Drawbacks of Provision

Practically, the main handicaps of Section 122 are the temporary status of 150 days, which can only be extended by an act of Congress, and a maximum tariff rate of 15% (19 U.S.C. § 2132, 1974). For these reasons, Section 122 does not replicate IEEPA to the extent that the administration desires. With Section 122 tariffs set at a rate of 10%, the overall effective tariff rate across all imports is 12.20% for the duration of the authority (The Budget Lab at Yale, 2026). For context, IEEPA tariffs before Learning Resources imposed an overall effective rate of 16% before any substitution effects (The Budget Lab at Yale, 2026). This is a significant difference compared to the 9.10% rate that would have automatically applied had the administration not invoked Section 122. Estimates indicate that this alternative scenario would have resulted in a $1.35 trillion reduction in conventional revenue collected between 2026 and 2035 (The Budget Lab at Yale, 2026).

Nevertheless, the four-point difference between the IEEPA and Section 122 tariffs sustained over the 2026–2035 window translates to roughly $680 billion less in conventional revenue, even assuming the Section 122 rates were extended beyond their statutory limit (The Budget Lab at Yale, 2026). More importantly, once the 150 days expire, congressional approval is needed for the continued imposition of the tariffs (19 U.S.C. § 2132, 1974). As a result, Section 122 necessitates greater reliance on other statutes in the meantime to supplement the ceiling rate of 15%.

As discussed below, while these tariffs can be applied broadly, they “shall be applied consistently with the principle of nondiscriminatory treatment” (19 U.S.C. § 2132, 1974). Although the President “may exempt all other countries” [those without large or persistent balance-of-payments surpluses], it must be a full exemption (19 U.S.C. § 2132, 1974). This is understood to mean that the President has the authority to implement the 10% tariff he proclaimed on all countries, but cannot choose to impose 10% for some, and then 15% for others; the nondiscriminatory clause is a notable handicap because it creates a tariff regime that is agnostic to the severity of a given country's trading arrangement with the United States, including agreements under IEEPA.

For example, previous deals made by the administration include negotiated baseline rates of 10%, as in the case of the U.K., but if the President wanted to apply a 15% rate to other trading partners who originally did not sign an agreement, the nondiscriminatory treatment subsection would require a tariff to be raised to 15% across the board, which would unnecessarily penalize countries that had the insight to come to the negotiating table (USTR, 2025). While Section 122 is effective in the short-term in keeping pressure on other countries without dramatically reducing effective rates, it does not afford the precision or flexibility that IEEPA did.

Legal Challenges

Beyond the practical limitations, the applicability of Section 122 to the administration’s goals may rest on a tenuous legal foundation due to its lack of precedent. On May 7, 2026, the Court of International Trade held in State of Oregon v. United States and Burlap and Barrel, Inc. v. United States (2026) that the administration’s interpretation of Section 122 exceeded its statutory authority. The CIT enjoined the tariffs for the plaintiffs, although it notably did not issue a nationwide injunction, meaning the Section 122 tariffs for all other importers remain in effect. The court, in a 2-1 decision, ruled that the administration did not demonstrate in Proclamation 11012 that the U.S. faced “balance-of-payments deficits” as understood at the time the Trade Act of 1974 was enacted.

Proclamation 11012 declared that the U.S. faced a “balance-of-payments” deficit by citing not only the trade deficit but also three additional indicators: the annual balance on primary income, which turned negative for the first time since at least 1960,[1] the deterioration of the U.S. net international investment position,[2] and the persistent deficits in secondary income dating back to the 1960s. The Trump Administration argued that these indicators show the balance-of-payments deficit extends beyond trade alone and is “large and serious” within the meaning of the statute (The White House, 2026a). The CIT rejected this approach, reasoning that letting the President pick among sub-accounts, rather than full balance-of- payments, would give the statute no real limiting principle and would raise nondelegation concerns.

The administration is expected to appeal this decision to the Federal Circuit, but the determination by the CIT raises doubts about the durability of the provision. Combined, the practical and legal limitations illustrate why Section 122 functions best as a temporary measure rather than a standalone replacement for IEEPA tariff authority. AFPI’s previous piece outlined this strategy, saying the administration could use the provision as a “temporary backstop until the agency investigations required by methods like Section 301 conclude or if other tariffing methods face additional legal obstacles” (Schlagenhauf et al., 2026). The notable alternatives that have already been discussed by the administration are Section 232 of the Trade Expansion Act of 1962 and Section 301 of the Trade Act of 1974. Furthermore, President Trump and lawmakers have opined on direct congressional action to codify the tariffs.

Section 232, Section 301, and Congressional Action

Section 232

Section 232 of the Trade Expansion Act of 1962 has been utilized numerous times, both in the first and second Trump Administrations, covering steel, aluminum, autos, copper, semiconductors, among other products (The White House, 2026b). Section 232 grants the President the authority to impose duties on goods that “threaten to impair the national security” of the United States, provided the requisite procedural steps have been followed (19 U.S.C. § 1862, 1962). This includes an investigation into the product in question at the request of any department or agency head, which the Secretary of Commerce leads (19 U.S.C. § 1862, 1962). These investigations can legally take up to 270 days, but recent investigations have moved faster, with the most recent copper investigation concluding in 121 days (Bureau of Industry and Security, n.d.).

While Section 232 is an incredibly important tariff tool, it also remains a supplementary authority for the purposes the Trump Administration wants to achieve. One advantage is the absence of rate ceilings, and as a result, there were often exemptions for these tariffed products with different rates applied versus the IEEPA baseline that the administration typically imposed (19 U.S.C. § 1862, 1962). The challenges accompanying the section center around (a) the time of each investigation and (b) the requirement that the good impairs national security. The latter challenge is a particularly important distinction from IEEPA, as the language of the section precludes broad-based tariffs that the Trump Administration imposed under the emergency statute. Following Learning Resources, Ambassador Greer has stated that Section 232 actions will continue to play a role in the new tariff regime and will “maintain tariffs currently imposed under Section 232 of the Trade Expansion Act of 1962, and conclude ongoing investigations” (USTR, 2026a). The durability of Section 232 is critical for the continued protection of national security interests, at a time when national security and economic security often overlap.

Section 301

While Section 232 focuses on national security, Section 301 of the Trade Act of 1974 authorizes the President to impose duties against foreign governments via the USTR if it finds that a country has violated “the rights of the United States” under trade agreements or engaged in practices that are “unjustifiable and burdens or restricts United States commerce” (Schlagenhauf et al., 2026). Unlike other statutes, there is no rate cap, and it has a statutory limit of four years, which can be extended at the request of the USTR (19 U.S. Code § 2411, 1974).

In his first administration, President Trump used Section 301 to tariff hundreds of billions of dollars’ worth of goods from China, and in his second administration, the USTR initiated new investigations into China and Brazil (USTR, n.d.). The statutory authority can cover some of the Liberation Day tariffs, as several trading partners have maintained unequal barriers that restrict American exporters from accessing foreign markets, thereby negatively impacting U.S. productive capacity and burdening American commerce (Schlagenhauf et al., 2026). As with Section 232, the investigation requirements will prevent the administration from immediately recreating the IEEPA tariffs, but it remains a necessary and durable tool in the President's tariff authority portfolio.

In the same press release as his announcement that the administration intends to maintain Section 232 tariffs, Ambassador Greer announced that he will continue the ongoing Section 301 investigations, including those on China and Brazil, as well as initiate new ones that are expected “to cover most major trading partners” on a variety of areas including industrial excess capacity, forced labor, pharmaceutical pricing practices, discrimination against U.S. technology companies and more—all of which will be done on an “accelerated timeline” (USTR, 2026a). Less than a month later, the administration followed through on this promise. On March 11, 2026, the USTR announced new 301 investigations against major trading partners related to their policies on “structural excess capacity and production in certain manufacturing sectors.” In its notice to the Federal Register, the USTR cited the large and persistent goods trade surpluses by these countries as evidence of excess capacity, signaling this policy would lead to broad-based tariffs against the countries in a way that resembles the IEEPA tariffs (USTR, 2026b). The USTR held public hearings on these investigations starting May 5 to gather input from U.S. industry leaders on foreign practices.

Congressional Authority

While Sections 232 and 301 are strong policy prescriptions that help bolster the tariff regime, congressional codification would be the most immediate way to reinstate the tariffs that existed before Learning Resources. Notably, President Trump has expressed his belief that he does not need congressional authority to reimpose the tariffs, saying that he would not “have to go back to Congress to get approval of Tariffs (sic)” as “it has already been gotten, in many forms, a long time ago!” (Trump, 2026). However, some lawmakers have advocated for this approach: Senator Bernie Moreno (R-OH) noted, “Republicans must get to work immediately on a reconciliation bill to codify the tariffs that had made our country the hottest country on earth” (Weaver, 2026). Regardless of whether the Trump Administration can reinstate the tariffs solely from executive authority, congressional action would be the most straightforward way to return to a pre-Learning Resources status quo, given Congress’s power to impose duties for any purpose and at any rate. Congress could also decide to extend the existing Section 122 tariffs beyond the statutory limit of 150 days, which would obviate the duration limits of the provision.

However, it is unlikely Congress will have an appetite for this, despite the IEEPA successes and despite members expressing worries about the uncertainty from Learning Resources, which codification would resolve. Moreover, even in the unlikely scenario that Congress codifies the IEEPA tariff regime, the resulting statute would not likely replicate the flexibility that IEEPA afforded to the President to act proactively against harmful foreign practices, requiring congressional deliberation for every new action. Regardless, both are options for the administration to consider when deciding how to replicate the IEEPA tariff regime.

The Trump Administration promptly took action to salvage the invalidated tariffs after Learning Resources, imposing tariffs under Section 122 of the Trade Act of 1974 and then initiating broad investigations under Section 301 of the Trade Act of 1974. Additionally, the administration pledged to maintain existing tariffs and continue ongoing investigations under Section 232 of the Trade Expansion Act of 1962, while others have also discussed the use of congressional authority. Section 122 tariffs managed to mitigate some of the negative effects of the decision, and the tariffs under Section 301 may replicate the broad-based nature of the IEEPA tariffs. However, the constraints across these alternatives—particularly the duration limit for Section 122, but also the investigation requirements of Section 301 and Section 232, the narrow scope of Section 232, and the political feasibility of involving Congress—may leave the administration short of fully recreating the authority President Trump exercised under IEEPA. A durable and more flexible tariff regime would need to involve alternatives beyond those already invoked or discussed.

New Strategies Moving Forward

The Trump Administration could further advance the goal of replicating the original IEEPA authority, a measure that may be necessary to cover the shortfalls in the methods already implemented. AFPI, in the prelude piece to Learning Resources (Schlagenhauf et al., 2026), outlined some of these avenues; this section reassesses those previously cited methods in light of Learning Resources and introduces other statutes and broader strategies the administration could pursue. By using a combination of methods, the administration could mimic the IEEPA tariffs in terms of rates, countries, and goods affected, while also replicating the broader IEEPA tariff authority, which enabled President Trump to accrue leverage against foreign countries.

Policy Recommendations:

1. Enact broad-based tariffs under Section 338 of the Tariff Act of 1930

Section 338 of the Tariff Act of 1930 (19 U.S.C. § 1338, 1930) grants the President the right to implement “new or additional duties” when he finds that a foreign country either (1) has an “unreasonable charge, exaction, regulation, or limitation” on U.S. products “which is not equally enforced upon the like articles of every foreign country;” or (2) “discriminates in fact against” U.S. commerce “by law or administrative regulation or practice, by or in respect to any customs, tonnage, or port duty, fee, charge, exaction, classification, regulation, condition, restriction, or prohibition” so as to disadvantage U.S. commerce “compared with the commerce of any foreign country.” Out of all tariff authorities, Section 338 affords the President the most flexibility to enact broad-based tariffs, given that there is no specified duration limit or requisite agency investigation, and that the tariffs can be imposed up to 50%. Furthermore, the statutory language specifying which practices of a country justify tariffs under Section 338 aligns with most of the policies that the Trump Administration sought to combat under IEEPA: barriers by foreign countries that discriminate or burden U.S. commerce.

AFPI recognized Section 338’s utility in its amicus brief to Learning Resources, arguing that the provision could uphold virtually all the tariffs issued under IEEPA (Homan, 2025). The court’s decision only reinforces this case: Justice Kavanaugh mentioned Section 338 six separate times in his principal dissent and cited the section as an example of a statute (among others) that “authorize[s] the President to impose tariffs and might justify most (if not all) of the tariffs at issue in this case” (Learning Resources, Inc. v. Trump, 2026, Kavanaugh, J., dissenting). While legal challenges may arise due to the unprecedented application of Section 338, it remains the best statutory vehicle to accomplish the goals of the original IEEPA tariffs.

2. Impose tariffs under Section 201 of the Trade Act of 1974

Section 201 of the Trade Act of 1974 (19 U.S.C. § 2251, 1974) authorizes the President to impose tariffs up to 50% for four years—eight if extended—if the International Trade Commission (ITC) finds that a surge in imports of a particular good is causing “serious injury to the domestic industry producing an article like or directly competitive with the imported article.” Aside from the rate, duration limits, and procedural requirements, the section is inherently limited in scope, given that the tariff remedy can only be directed to assist the affected industry. Additionally, any measure extending beyond one year would need to be phased down, barring another fact-finding proceeding. However, the provision is still a valuable tariffing tool in the preserve of the Executive Branch and another mechanism acknowledged by the dissenting opinion in Learning Resources (Learning Resources, Inc. v. Trump, 2026, Kavanaugh, J., dissenting, p. 6).

Section 201 is the most effective tariffing authority for the President to provide relief to domestic industries when damaged by foreign practices that flood U.S. markets with imports. The most recent use of the section was when the first Trump Administration imposed tariffs of 30% on solar cells and 50% on washing machines. The tariffs were extended by the Biden Administration in 2021 (USTR, 2026c). In this situation, the Trump Administration could use Section 201 as a supplemental measure on Section 301 and 338 tariffs to cover any shortfall compared to the IEEPA average rates or rely on the provision to target industries where the U.S. has the most urgent concerns about a rise in imports.

3. Impose tariffs under Section 406 of the Trade Act of 1974 on “Communist Countries”

Section 406 of the Trade Act of 1974 (19 U.S.C. § 2436, 1974) is a country-specific variant of Section 201, conferring tariff authority to the President when the ITC finds that imports that are “the product of a Communist country” are causing "market disruption" to the corresponding domestic industry. There are just two instances of a president invoking Section 406 against the USSR and the PRC, both in the 1980s. The section could be valuable to the Trump Administration, mainly to accrue greater leverage in trade negotiations with the PRC, a one-party state controlled by the Chinese Communist Party (CCP). Other nominally Communist countries (such as Vietnam and Laos) that have run major trade surpluses against the U.S. relative to the size of their economies could be incentivized to sign trade agreements or adhere to the agreements signed in 2025 by the mere threat of applying the provision.

Section 406 carries the same limits as Section 201 on the requirement of administrative proceedings and limits coverage to a specific industry, but also grants greater flexibility—and by extension greater bargaining power against foreign countries—by having no phasedown requirements. The duration limit for an action under the provision is five years, which may be extended for another three years. While some may dismiss the section as an anachronistic tool of the Cold War era, historical evidence reveals that Congress drafted the tool out of concern that non-market economies could engage in top-down export practices that harm U.S. industry—a dynamic that unquestionably exists today within countries such as the PRC (Calabrese, 1980).

4. Increase rates of existing 201, 232, and 301 tariffs

In addition to conducting new investigations to impose tariffs under Section 232 of the Trade Expansion Act of 1962 or Sections 201 and 301 of the Trade Act of 1974, the Trump Administration could raise the rates for existing tariffs already imposed under each section. Currently, tariffs exist on hundreds of billions of dollars’ worth of goods under Section 232 and 301, including on some of the most traded commodities around the world, such as automobiles, semiconductors, copper, steel, and more (Lowell et al., 2026). Some of these existing rates have already been increased previously, such as the Biden Administration raising electric vehicle tariffs on China from 25% to 100% (which were first established under the first Trump Administration) (USTR, 2024).

Presidential authority to adjust existing rates under each of these provisions has repeatedly been affirmed by the courts. As recently as September 2025 in HMTX Industries et al. v. United States (2025), the United States Court of Appeals for the Federal Circuit upheld President Trump’s Section 301 tariffs on China in 2018, including the decision to increase tariffs on $200 billion worth of goods from 10% to 25%. While the plaintiffs argued this action exceeded the president’s tariff authority, the court rejected these arguments pursuant to language in Section 307 of the Trade Act of 1974, which says the president may direct the trade representative to “modify or terminate any action” taken under Section 301 (19 U.S.C. § 2417, 1974). The court reasoned the term “modify” encompassed raising rates, arguing the term is “indifferent to degrees of change and contains no inherent limitation” (HMTX Industries LLC v. United States, 2025, p. 19).

Courts have come to the same conclusion based on similar statutory language which authorizes Section 201 (i.e., “reduced, modified, or terminated by the President”) and Section 232 duties (i.e., “he shall take such action, and for such time, as he deems necessary to adjust the imports”) (19 U.S.C. § 2254; 19 U.S.C. § 1862, 1962; Transpacific Steel LLC v. United States, 2021; Solar Energy Industries Association v. United States, 2021). By possessing the clear authority to increase tariff rates that the president imposed under a past investigation, the Trump Administration can both target industries highly valuable to the economy of a foreign country and use the strategy as a stopgap measure until the new investigations for other industries under each section conclude.

5. Enact quotas under IEEPA

While Learning Resources found that IEEPA did not authorize tariffs, the president could still invoke the legislation to erect different trade barriers. AFPI’s first piece outlined the option of enacting import licenses and/or quotas under the statute as a potential alternative, drawing from the language in the section which permitted actions “by means of instructions, licenses, or otherwise” to “regulate… importation” (50 U.S.C. § 1701 et seq, 1977). The majority opinion in Learning Resources has likely precluded the administration from exercising the license option under this statute. On actions IEEPA authorizes, the majority opinion wrote that “None of IEEPA’s authorities includes the distinct and extraordinary power to raise revenue,” which suggests import licenses could not be used to raise revenue as an end-run around the law’s prohibition on tariffs (Learning Resources, Inc. v. Trump, 2026, p.16).

The court opinion, however, does not seem to extend to quotas, which can be considered as a regulatory power; and the concurring opinion by Justice Kagan explicitly affirmed the power to impose quotas under IEEPA (Learning Resources, Inc. v. Trump, 2026, Kagan, J., concurring, p. 5). The administration could use quotas to limit the imports of a good if they become unsustainably high enough to harm domestic markets or further exacerbate the trade deficit, and leverage access to the American economy in the same way the Trump Administration achieved with the IEEPA tariffs. Given the bureaucratic complexity of quotas and their inefficiency relative to tariffs, the quotas should only be invoked after all other methods outlined above are exhausted and do not manage to replicate the IEEPA tariff authority. This option, or the threat of invoking such an option, could be useful to mimic the effects of tariffs that were threatened under IEEPA, with justifications that may not fit the language of other methods, such as the tariffs on fentanyl trafficking or those on countries that imported Russian oil.

Conclusion

In 2025, the Trump Administration took decisive action to address two national emergencies: erosion of American industry and production at the expense of other countries, reflected in high and persistent trade deficits, and the flow of deadly fentanyl across the border. The mechanism by which they sought to address these pressing issues was imposing broad-based tariffs under IEEPA on foreign countries commensurate with the degree to which their policies contributed to these two emergencies. By restricting or threatening to restrict access to the American economy, the Trump Administration obtained sufficient leverage over countries to induce action to change policies contributing to the issues.

In just a year, the Trump Administration achieved remarkable policy successes in large part from this approach, from 50%+ decreases in the trade deficit, trillions of dollars of foreign investment in American industry, and significant declines in overdose deaths (Schlagenhauf et al., 2026). However, the Supreme Court struck down the tariffs in Learning Resources, Inc. v. Trump, which created the major risk of nullifying these achievements, as well as dissipating significant leverage to make further progress on outstanding issues, most notably the trade negotiations with the People’s Republic of China.

The consequences of returning to the situation before the Trump Administration intervened make replicating the IEEPA tariffs and their broader authority an economic and national security imperative. Rather than relying on a single vehicle to accomplish this, the administration could look to a miscellany of trading statutes and strategies that confer on the president tariffing authority. Applying these statutes could both reinstate the tariffs that existed pre-Learning Resources and create a combined tariff authority sufficiently broad to mimic what the administration asserted under IEEPA. The Trump Administration took immediate action following the Learning Resources decision, implementing tariffs under Section 122 of the Trade Act of 1974 and initiating investigations pursuant to Section 301 of the Trade Act of 1974. The limitations inherent in each of these avenues pursued and discussed may necessitate involving other methods that can apply to a diverse set of circumstances and afford the president greater flexibility. By combining these approaches, the Trump Administration can create a tariff authority portfolio that can ensure policy continuity from the IEEPA tariffs, potentially assembling an even more durable tariff regime that will continue delivering results on critical issues for years to come.

[1] The current account deficit reached 4.0 percent of GDP in 2024, nearly double the approximately 2.0 percent that prevailed from 2013 to 2019 and the largest since 2008

[2] The net international investment position fell to negative 90 percent of GDP by the end of 2024, a sharp deterioration from the negative 41 percent average between 2010 and 2020