Trump Faces New Court Challenge Over Tariff Authority

The US Court of International Trade will hear challenges next month to Trump's Section 122 tariffs after the Supreme Court invalidated emergency tariff authority in February 2026, forcing reliance on a 150-day statute that prohibits country-specific rates and requires congressional approval for extensions. The administration is expediting Section 301 investigations covering 60 trading partners to establish longer-term tariff authority before the Section 122 deadline, though standard procedures require six to eight months. 

The US Court of International Trade has scheduled hearings next month for two lawsuits challenging the Trump administration's reimposed 10% tariffs on trading partners, marking the latest legal battle over presidential trade enforcement authority.

The administration invoked Section 122 of the Trade Act of 1974 to reimpose import duties after the Supreme Court invalidated emergency tariff authority on Feb. 20, 2026. The court ruled the International Emergency Economic Powers Act does not authorize tariffs, determining trade duties require explicit congressional authorization. The ruling nullified extensive tariff structures established under emergency measures. 

Section 122 authorizes the executive to establish tariffs reaching 15% for a 150-day period when addressing serious balance-of-payments deficits. This framework provides less flexibility than emergency powers previously employed, both in maximum tariff rates and implementation duration.

Legal counsel representing plaintiffs argue President Donald Trump "has once again exercised tariff authority that he does not have, involving a statute that does not authorise the tariffs he has imposed, to upend the constitutional order and bring chaos to the global economy."

Trade law experts suggest courts may grant the administration considerable discretion when tariffs are justified on economic security grounds. Kathleen Claussen, Law Professor, Georgetown University, noted courts have "historically, in the last 10 years . . . deferred always to the president on these economic security issues."

This could provide legal cover for maintaining current tariff structures in the near term. However, reliance on fragmented legal authorities is likely to decelerate trade enforcement actions while limiting options for establishing duty percentages and implementation schedules.

Operational restrictions inherent in Section 122 have emerged. After the Supreme Court decision, Trump initially signaled intention to impose 15% tariffs, but this proposal triggered opposition from European allies who had negotiated preferential lower rates through bilateral agreements last year.

The United Kingdom secured a blanket 10% tariff arrangement, and the European Union would face substantially worse trade conditions under a universal 15% duty applied on top of existing tariffs compared to previously negotiated terms.

Trade attorneys indicate Section 122 may legally prohibit establishing different tariff rates for individual countries. "The statute is quite clear that it should be applied on a non-discriminatory basis, one rate across all countries, with some exceptions for particular products," said Peter Harrell, former senior economic official under the Biden administration.

"I think that if he moves the rate around, and certainly if he has differential rates ... the court would then probably rule against these tariffs. They are inviting lots of additional legal problems," Harrell said.

This non-discriminatory requirement constrains the administration's ability to use tariffs as negotiating tools with specific countries, a tactic central to Trump's previous trade strategy.

The president is depending on US Trade Representative Jamieson Greer to expedite investigations into trading partners' practices to secure authorization for higher tariffs through Section 301 of the Trade Act of 1974. This alternative pathway could provide greater flexibility and longer-term authority to maintain elevated tariff levels.

This month, the USTR initiated examinations covering 60 trading partners regarding forced labor allegations and separate reviews assessing whether foreign economies maintain "excess capacity and production in manufacturing sectors." Greer said his goal is completing these investigations and delivering enforcement options before current Section 122 tariffs reach their 150-day expiration deadline.

Everett Eissenstat, former Trump Trade Official, indicated Section 301 investigations typically require six to eight months to complete. "This would be fast," Eissenstat said, while acknowledging the USTR could potentially make Trump's trade arrangements with foreign governments "pretty durable" by relying on this investigative process to establish legal foundations for longer-term tariff structures.

The administration may attempt to extend existing tariffs beyond the 150-day Section 122 limit to provide additional time for completing Section 301 investigations, though such action would almost certainly invite additional legal challenges. Section 122 language explicitly states tariffs cannot continue beyond 150 days without congressional approval.

However, Claussen suggested Trump might exploit ambiguity in the statute regarding intervals required between successive uses of Section 122 authority. "It cannot be that once the president uses this once, that it can never occur again. So what is the space ... you have to wait between this one and the next one?" Claussen said.

This strategy would involve allowing Section 122 tariffs to expire briefly before immediately reimposing them under the same authority, effectively circumventing the 150-day limitation through repeated short-term implementations. Such an approach would likely face legal challenges but could provide additional time to complete alternative legal frameworks for maintaining tariff structures.