Losing the emergency powers route did not end tariff policy. It changed the plumbing. The replacement authorities are older, narrower and slower, and each one imposes procedural requirements that the emergency statute did not — which is the actual constraint, more than any legal ceiling.
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What the February ruling removed
Short answer: On February 20, 2026 the Supreme Court held 6-3 that the International Emergency Economic Powers Act does not authorise the President to impose tariffs of indefinite scope. What was struck down was the mechanism — a fast, broad, largely unreviewable route to imposing duties. Trade policy has since run through statutes that require investigations, findings and defined timelines, which changes the speed and the breadth of what can be done rather than the objective.
| Authority | Requires | Speed | Scope |
|---|---|---|---|
| Section 232 | Commerce investigation and national security finding | Months | Product-specific, no rate ceiling |
| Section 301 | USTR investigation into unfair practices | Months to a year | Country and sector specific |
| Section 122 | Balance-of-payments finding | Fast | 15% ceiling, 150-day limit |
| Section 338 | Discrimination finding | Rarely used | Broad on paper, untested |
Section 232: national security
Section 232 of the Trade Expansion Act of 1962 permits tariffs on imports found to threaten national security. The Commerce Department must conduct an investigation and issue a finding, after which the President decides on action.
Its advantages are that it has no statutory rate ceiling, no fixed expiry, and a broad definition of national security that has in practice extended well beyond defence materials. Its constraint is the investigation itself, which takes months and creates a public record that can be challenged.
This is the most durable of the replacement routes and the one most likely to carry the bulk of sectoral tariff policy, precisely because it survives judicial scrutiny better than emergency powers did.
Section 301: unfair practices
Section 301 of the Trade Act of 1974 addresses acts, policies or practices of a foreign country that are unjustifiable and burden US commerce. The US Trade Representative investigates, typically holds public hearings, and can impose duties if the finding supports it.
It is slower than Section 232 and more procedurally demanding, requiring a documented case against specific foreign conduct. That same requirement is what makes it sturdier — the resulting action rests on findings that were tested through a public process.
Section 301 is country-directed rather than product-directed, which makes it well suited to bilateral disputes and poorly suited to broad multilateral tariff regimes.
Section 122: the 15% ceiling and the 150-day clock
Section 122 of the Trade Act of 1974 permits temporary import surcharges to address large and serious balance-of-payments deficits. It is the fastest route, requiring no lengthy investigation.
It is also the most limited. The surcharge cannot exceed 15%, and it expires after 150 days unless extended by Congress. That combination makes it a bridging tool rather than a policy foundation — useful for maintaining pressure while a Section 232 or 301 investigation runs, not for a durable tariff regime.
Its legal footing has also been tested: the Court of International Trade struck down Section 122 tariffs in May 2026, though the practical impact of that ruling was limited and its ultimate fate remained uncertain.
Section 338 and the rarely used tools
Section 338 of the Tariff Act of 1930 permits duties of up to 50%, or exclusion of goods entirely, from countries found to discriminate against US commerce. It has essentially never been used in the modern era.
That absence of use is itself the main fact about it. There is no body of case law establishing how courts would interpret it, no administrative practice governing how a finding would be made, and no precedent for what evidence would suffice. Relying on it would invite litigation on questions that have never been answered.
What each pathway means for the effective tariff rate
The effective tariff rate — total duties collected divided by total import value — is the number that matters for inflation, margins and trade flows, and it is the right lens for all of this.
The replacement authorities are narrower in scope than IEEPA was, which mechanically limits how high the aggregate rate can go through any single action. But narrower and slower is not the same as lower: a series of product-specific Section 232 actions accumulating over time can reach a similar aggregate rate by a different route, arriving in increments rather than at once.
For anyone modelling the inflation impact, the incremental arrival pattern matters as much as the level. Duties phased in over quarters produce a very different price path from the same duties imposed simultaneously.
Risks, uncertainty, and limits
This is a general description of statutory authorities, not legal advice, and the litigation landscape has been unusually active. Several of the questions described here were unresolved as of mid-2026 and outcomes may have changed.
Importers with exposure should work from current CBP guidance and counsel. The statutes themselves are public, and the Federal Register carries the operative notices for every action taken under them.