如果最高法院宣布关税无效，特朗普能否保留关税？（英）

Alan Wm. WolffFebruary 2026 The Trump administration’s trade team has announced1that it will employalternative legal stratagems to keep its high tariff walls in place if the SupremeCourt invalidates the sweeping “reciprocal” tariffs that President Donald J.Trump imposed in 2025,2as many legal experts expect the court to do. At issueis whether the high court will conclude that the administration’s invocation ofits authority under the International Emergency Economic Powers Act of 1977(IEEPA) permits such tariffs. Yet as US Trade Representative (USTR) JamiesonGreer said in January, if the Supreme Court outlaws its current approach, theadministration would “start the next day” to reestablish tariffs under other legalauthorities “to respond to the problems the president has identified.”3 Alan Wm. Wolffis seniorfellow at the PetersonInstitute for InternationalEconomics. Before joiningthe Institute in 2021, hewas deputy director-general of the World TradeOrganization. How successful the president is in maintaining his role as the source of tariffson everything from everywhere depends in part on whether the court in thecurrent tariff case states unequivocally that Congress is the branch of governmentto which the Constitution grants the commerce and tariff powers. Will the courtreject the legally unfounded proposition that the president has authority toimpose tariffs at will covering a majority of US imports under any authority? The problem for the president is that absent full use of IEEPA, he has no clearlegal path to maintain his tariff wall through use of alternative statutory authorities,although he will still have other potent, but more selective, tariff authorities. Assuming the president loses this case, much of the rest of his term’s tradepolicy could depend on how the court frames its decision on why IEEPA does notsupport his broad “reciprocal” tariffs. If it is a technical decision, e.g., that the word“tariff” does not appear in IEEPA, it will not cast much of a shadow over his use of alternative authorities. Or will the court demonstrate that it appreciates therisk of the president replicating the IEEPA-based tariffs with an equally expansiveinterpretation of other delegated authorities? If it does, the administration isless likely to give so broad a reading to each of his other trade authorities thatthe president proceeds to attempt once again to usurp the role of Congress. Itwould be clear that the court would not accept the use of trade laws that clearlypermit the application of tariffs, but where Congress never contemplated a use assweeping as the president assumed for himself declaring the “reciprocal” tariffs. At least twice in recent history, the court has chosen to make broad decisionsclearly affecting future cases as opposed to narrower rulings that are directlyapplicable to the case before the justices. It made far-reaching decisions inLoperBrightEnterprises v. Raimondo4ending broad deference to federal agencies’interpretations of their own statutory authority (the Chevron doctrine) and inTrump v. United Statesfamously immunized the president from criminal chargesstemming from his official acts.5Will the Supreme Court in the current IEEPAtariff case close the door on the Trump administration’s attempts to use othertrade authorities to usurp the power of Congress under the Constitution to setAmerica’s tariffs? To prevent or slow reconstruction of the Trump tariff wall, the court shouldrule clearly that the separation of powers provided for in the Constitution placesthe tariff power squarely with Congress. The court should declare that this powercannot be and was not delegated to the president despite the pervasive powerhe has exercised and now seeks to extend to set the nation’s tariffs. JamesMadison understood fully that “when the legislative and executive powers areunited in the same person. . .there can be no liberty.”6 The question posed and answered here: If the president loses his currenttariff case, can he proceed to use other delegations from Congress to maintainthe same tariffs? This Policy Brief reviews potential alternative authoritiesthat the Trump administration might evoke, each of which comes withlimitations on its use. TRUMP’S POTENTIAL ALTERNATIVES Largely through use of an emergency he declared under IEEPA, the averageUS tariff is now between 14.8 and 16.9 percent, compared with the 2.4 percentaverage tariff that existed previously.7In April 2025, President Trump imposed abaseline across-the-board tariff of 10 percent as well as higher tariffs by countryand in a number of instances by specific product. This resulted in US tariffsaveraging between three and five times the tariff rates Congress enacted inimplementing various previous trade agreements. This is the highest tariff levelsince 1932 and bears no resemblance to the tariffs put in place by Congressbefore Trump’s second term. Only four possible tariff authorities have been delegated to the presidentby Congres