US Supreme Court sceptical of tariff justification? Here’s what Donald Trump can still do to continue import duties

In what would be its first break from United States President Donald Trump, the US Supreme Court in its November 5 hearing on global tariffs, “picked apart” the current administrations reasoning for the duties, according to a CNN report.

The 6-3 conservative majority SC expressed “deep concerns” over use of federal law by the Trump administration to impose tariffs on nearly all countries across the globe, it added.

Over two hours, the judges lead by Chief Justice John Roberts (a Trump nominee to the court), questioned officials of the Donald Trump administration on their assertion that the US government has the power to impose tariffs and duties for “regulation” purposes, the report said.

Notably, in previous hearings on immigration, ICE and federal job and funding cuts, the US Supreme Court has backed all of Donald Trump’s moves, it added.

Supreme Court hearing: Key highlights

Hearing the case on November 5, Roberts was not so keen on the Trump administrations explanations, noting that the 1970s law in question, the International Emergency Economic Powers Act, or IEEPA, has “never” been used to impose tariffs.

He also noted that the US Congress has authorised presidents to raise tariffs under certain laws, but not the one being used by Trump’s government. Further, he noted that IEEPA itself only allows president to regulate imports during emergencies.

“Correct me on this if I’m not right about it, but the justification is being used for a power to impose tariffs on any product, from any country, in any amount, for any length of time,” Roberts said, adding that the claim “seemed to be misfit.”

While a final order is yet to be made, the line of questioning has indicated what route the court is likely to take in its verdict, CNN added.

For the administration, US Solicitor General D John Sauer, argued that the statement includes “the power to impose tariffs” and is hence applicable, but businesses challenging the government have balked at that reading of the law.

Another key factor under consideration was that if the tariffs are struck down, would businesses be entitled to refunds, and if so, how would these be processed. So far, the federal US government has collected close to $90 billion in revenue from the tariffs, as per September data with the United States Customs and Border Protection.

Early in November, Donald Trump told Fox Business in an interview that if the SC ruled against him, “we’d have to pay back money”, the CNN report added. Donald Trump has also claimed that the US will be left “defenseless” and “reduced to almost Third World status”, if the tariffs are gone, as per an AP report.

Neal Katyal, senior SC attorney, is representing the small and medium businesses challenging the law.

Does Donald Trump have other options?

Yes, say experts. They told AP that even if the court overturned his tariffs, Donald Trump has “plenty of options” to keep up a similar set-up.

“It’s hard to see any pathway here where tariffs end. I am pretty convinced he could rebuild the tariff landscape he has now using other authorities,” Georgetown trade law professor Kathleen Claussen told AP.

• Stratos Pahis of Brooklyn Law School also told the publication that Donald Trump “will have other tools that can cause pain”. These include Section 301 of the Trade Act of 1974 — which has been previously used by the US to battle countries it claims have “unjustifiable” or “discriminatory” trade practices. Notably, there are no limits on the size of Section 301 tariffs, and while they expire after four years, it can be extended, the report said.
• Another avenue is Section 232 of Trade Expansion Act of 1962 — which is used to impose tariffs on items deemed a threat to national security. While this is not limited by law, the US Commerce Department does investigate these tariffs, but John Veroneau, general counsel for the U.S. trade representative in the George W. Bush administration told AP this would be a case of the administration investigating itself, “so they have a lot of control over the outcome”.
• Donald Trump could also revive the Depression era Tariff Act of 1930 aka the Smoot-Hawley tariffs. Notably, these levies have been widely condemned by economists and historians for limiting world commerce and making the Great Depression worse. Section 338 of the law authorises the president to impose tariffs of up to 50 per cent on imports from countries that have discriminated against U.S. businesses. No investigation is required, and there’s no limit on how long the tariffs can stay in place.

Under Donald Trump, the average US tariff has jumped from 2.5 per cent in January 2025, to 17.9 per cent (highest since 1934), according to calculations by Yale University’s Budget Lab, the AP report added.