U.S. Treasury Secretary Scott Bessent told reporters and advisers this week he expects the U.S. Supreme Court to uphold President Donald Trump’s use of the International Emergency Economic Powers Act (IEEPA) to impose sweeping, unilateral tariffs — and he framed that expectation around two central themes: the urgent public-safety rationale tied to the fentanyl crisis and a broader argument that chronic trade imbalances amount to an economic emergency. Bessent has instructed legal teams to prepare a pointed brief to the solicitor general that emphasizes those themes, while also quietly preparing alternative legal pathways should the high court rule against the administration.
Bessent’s public posture is one of confidence. He argues that the opioid and fentanyl epidemic — blamed for tens of thousands of U.S. deaths each year — fits squarely within the “unusual and extraordinary” emergency language of IEEPA and that the administration must be able to act swiftly when national health and economic stability are at stake. Behind that claim is a practical briefing strategy: portray tariffs as a tool to cut off supplies and revenue streams that enable illicit flows and to correct persistent deficits that, the administration says, threaten manufacturing and supply-chain resilience. That dual rationale is central to the legal brief he is assembling for the solicitor general as the administration prepares its appeal to the Supreme Court.
Bessent’s confidence also rests on political and institutional calculations. A winning argument at the high court would effectively allow the executive to marshal a broad economic response when it deems a threat to national well-being — a powerful precedent. But the prospect of an adverse ruling has prompted Bessent and others to map fallback options now, reflecting how high the stakes are for the White House’s trade agenda.
Bessent’s confidence: why he expects the Supreme Court to back IEEPA
The administration’s legal posture leans heavily on two linked assertions. First, that IEEPA — enacted in 1977 to let presidents act in times of declared national emergency — gives sufficient authority to regulate foreign economic interactions when a national emergency is at hand. Second, that the fentanyl crisis and long-running trade imbalances are precisely the sorts of threats Congress meant to empower the executive to meet. Bessent’s brief is expected to frame the case in stark, urgent terms: tens of thousands of overdose deaths annually, widening deficits that threaten industrial capacity and critical supply networks, and the need for rapid, flexible tools beyond what routine trade remedy processes permit.
Critics and legal scholars have pushed back, saying IEEPA was not designed as a vehicle for sweeping tariff programs and warning that an expansive reading would vest the presidency with quasi-taxing powers that properly belong to Congress. The recent appeals court ruling that most of the tariffs are unlawful — a 7-4 decision that nevertheless left the levies in place for a temporary period — crystallized that debate and sent the matter toward the Supreme Court for final resolution. In the meantime, Bessent’s strategy is twofold: press the emergency narrative to the justices while simultaneously rehearsing alternative legal authorities in public remarks and internal memos.
How the issue reached the Supreme Court: the legal and political path
The dispute that now sits before the country’s highest court has a straightforward procedural origin but a complex legal backbone. The administration announced a series of tariff rounds earlier in the year, invoking IEEPA as the statutory basis for broad, economy-wide duties. Multiple lawsuits followed from trading partners, industry groups and affected companies, arguing that IEEPA does not authorize general tariffs and that Congress had reserved taxing and tariffing powers to itself. A divided U.S. Court of Appeals concluded that most of the levies exceeded presidential authority. The appeals court nonetheless issued a temporary stay, allowing tariffs to remain in place while the government sought further review, setting a deadline for the Supreme Court to weigh in.
The legal fight reflects an old constitutional tug-of-war: how far can the executive reach on economic policy in the absence of explicit congressional authorization? Historically, presidents have used IEEPA and related statutes for targeted economic sanctions and responses to foreign threats. What is new is the administration’s argument for using that framework to impose wide-ranging tariffs aimed at trade deficits and domestic public-health harms. That reinterpretation has drawn sharp objections from opponents who warn of unchecked executive power, and it explains why the judicial path from district court to appeals court and now to the Supreme Court has been so closely watched by markets, allies and global trading partners.
Plan B — Section 338 and other backup tools the administration can use
While awaiting the Supreme Court’s decision, Bessent has been explicit about contingency planning. The administration has signalled Section 338 of the Smoot-Hawley Tariff Act of 1930 as a prominent fallback. Section 338 allows the president to impose temporary tariffs — in some formulations up to substantial rates for a limited period — where a foreign country is found to be discriminating against U.S. commerce. That statute, far older and narrower than IEEPA, would require a different administrative pathway: investigations, findings of discrimination or injury, and more structured procedural steps than an emergency declaration. Bessent has acknowledged these tools are “not as efficient, not as powerful” as IEEPA for swift, economy-wide action, but they do offer a legally different route that could survive closer judicial scrutiny.
Beyond Section 338, the administration could lean more heavily on established trade-remedy laws, including anti-dumping and countervailing duty procedures, or on national-security authorities such as Section 232 of the Trade Expansion Act. Each option carries trade-offs. Traditional remedy processes offer firmer legal footing but are time-consuming and typically apply sector by sector, not across an entire economy. Section 232 authorities tied to national security require findings and can invite reciprocal measures or disputes at the World Trade Organization. Officials concede that fallback measures could prove slower, politically costlier, and likely to provoke retaliation — all reasons the White House prefers an IEEPA victory if the court grants it.
Bessent has also highlighted a tactical playbook: narrow, targeted tariffs or special lists tied to specific products or countries where evidence of discrimination or links to illicit flows can be marshalled quickly. Such targeted measures aim to limit market disruption and reduce legal exposure while accomplishing some of the administration’s stated goals — for example, cutting off commercial routes that facilitate fentanyl precursors or penalising clear discriminatory barriers to U.S. firms.
Political and market implications of Plan B
Plan B’s adoption would lessen the legal spectacle but not the political heat. Even if the administration pivots to statutory authorities like Section 338, it will confront questions about retaliation, how quickly investigations can be completed, and whether the measures can achieve the scale of relief policymakers seek. Major trading partners and allies — whose cooperation the administration has been courting on some measures — may resist sudden, high-tariff moves, complicating diplomatic alignments.
The coming weeks will test the White House’s ability to thread a narrow legal needle while maintaining public resolve. If the Supreme Court sustains IEEPA as the basis for the tariffs, the administration gains a broad tool for immediate action; if it does not, Bessent’s Plan B will offer a legally safer, albeit slower and more politically fraught, path to the same objectives. Either way, the episode underscores the collision of national-security rhetoric, public-health urgency and constitutional limits that now defines one of the most consequential trade cases to reach the Supreme Court in years.
(Source:www.reuters.com)
Bessent’s public posture is one of confidence. He argues that the opioid and fentanyl epidemic — blamed for tens of thousands of U.S. deaths each year — fits squarely within the “unusual and extraordinary” emergency language of IEEPA and that the administration must be able to act swiftly when national health and economic stability are at stake. Behind that claim is a practical briefing strategy: portray tariffs as a tool to cut off supplies and revenue streams that enable illicit flows and to correct persistent deficits that, the administration says, threaten manufacturing and supply-chain resilience. That dual rationale is central to the legal brief he is assembling for the solicitor general as the administration prepares its appeal to the Supreme Court.
Bessent’s confidence also rests on political and institutional calculations. A winning argument at the high court would effectively allow the executive to marshal a broad economic response when it deems a threat to national well-being — a powerful precedent. But the prospect of an adverse ruling has prompted Bessent and others to map fallback options now, reflecting how high the stakes are for the White House’s trade agenda.
Bessent’s confidence: why he expects the Supreme Court to back IEEPA
The administration’s legal posture leans heavily on two linked assertions. First, that IEEPA — enacted in 1977 to let presidents act in times of declared national emergency — gives sufficient authority to regulate foreign economic interactions when a national emergency is at hand. Second, that the fentanyl crisis and long-running trade imbalances are precisely the sorts of threats Congress meant to empower the executive to meet. Bessent’s brief is expected to frame the case in stark, urgent terms: tens of thousands of overdose deaths annually, widening deficits that threaten industrial capacity and critical supply networks, and the need for rapid, flexible tools beyond what routine trade remedy processes permit.
Critics and legal scholars have pushed back, saying IEEPA was not designed as a vehicle for sweeping tariff programs and warning that an expansive reading would vest the presidency with quasi-taxing powers that properly belong to Congress. The recent appeals court ruling that most of the tariffs are unlawful — a 7-4 decision that nevertheless left the levies in place for a temporary period — crystallized that debate and sent the matter toward the Supreme Court for final resolution. In the meantime, Bessent’s strategy is twofold: press the emergency narrative to the justices while simultaneously rehearsing alternative legal authorities in public remarks and internal memos.
How the issue reached the Supreme Court: the legal and political path
The dispute that now sits before the country’s highest court has a straightforward procedural origin but a complex legal backbone. The administration announced a series of tariff rounds earlier in the year, invoking IEEPA as the statutory basis for broad, economy-wide duties. Multiple lawsuits followed from trading partners, industry groups and affected companies, arguing that IEEPA does not authorize general tariffs and that Congress had reserved taxing and tariffing powers to itself. A divided U.S. Court of Appeals concluded that most of the levies exceeded presidential authority. The appeals court nonetheless issued a temporary stay, allowing tariffs to remain in place while the government sought further review, setting a deadline for the Supreme Court to weigh in.
The legal fight reflects an old constitutional tug-of-war: how far can the executive reach on economic policy in the absence of explicit congressional authorization? Historically, presidents have used IEEPA and related statutes for targeted economic sanctions and responses to foreign threats. What is new is the administration’s argument for using that framework to impose wide-ranging tariffs aimed at trade deficits and domestic public-health harms. That reinterpretation has drawn sharp objections from opponents who warn of unchecked executive power, and it explains why the judicial path from district court to appeals court and now to the Supreme Court has been so closely watched by markets, allies and global trading partners.
Plan B — Section 338 and other backup tools the administration can use
While awaiting the Supreme Court’s decision, Bessent has been explicit about contingency planning. The administration has signalled Section 338 of the Smoot-Hawley Tariff Act of 1930 as a prominent fallback. Section 338 allows the president to impose temporary tariffs — in some formulations up to substantial rates for a limited period — where a foreign country is found to be discriminating against U.S. commerce. That statute, far older and narrower than IEEPA, would require a different administrative pathway: investigations, findings of discrimination or injury, and more structured procedural steps than an emergency declaration. Bessent has acknowledged these tools are “not as efficient, not as powerful” as IEEPA for swift, economy-wide action, but they do offer a legally different route that could survive closer judicial scrutiny.
Beyond Section 338, the administration could lean more heavily on established trade-remedy laws, including anti-dumping and countervailing duty procedures, or on national-security authorities such as Section 232 of the Trade Expansion Act. Each option carries trade-offs. Traditional remedy processes offer firmer legal footing but are time-consuming and typically apply sector by sector, not across an entire economy. Section 232 authorities tied to national security require findings and can invite reciprocal measures or disputes at the World Trade Organization. Officials concede that fallback measures could prove slower, politically costlier, and likely to provoke retaliation — all reasons the White House prefers an IEEPA victory if the court grants it.
Bessent has also highlighted a tactical playbook: narrow, targeted tariffs or special lists tied to specific products or countries where evidence of discrimination or links to illicit flows can be marshalled quickly. Such targeted measures aim to limit market disruption and reduce legal exposure while accomplishing some of the administration’s stated goals — for example, cutting off commercial routes that facilitate fentanyl precursors or penalising clear discriminatory barriers to U.S. firms.
Political and market implications of Plan B
Plan B’s adoption would lessen the legal spectacle but not the political heat. Even if the administration pivots to statutory authorities like Section 338, it will confront questions about retaliation, how quickly investigations can be completed, and whether the measures can achieve the scale of relief policymakers seek. Major trading partners and allies — whose cooperation the administration has been courting on some measures — may resist sudden, high-tariff moves, complicating diplomatic alignments.
The coming weeks will test the White House’s ability to thread a narrow legal needle while maintaining public resolve. If the Supreme Court sustains IEEPA as the basis for the tariffs, the administration gains a broad tool for immediate action; if it does not, Bessent’s Plan B will offer a legally safer, albeit slower and more politically fraught, path to the same objectives. Either way, the episode underscores the collision of national-security rhetoric, public-health urgency and constitutional limits that now defines one of the most consequential trade cases to reach the Supreme Court in years.
(Source:www.reuters.com)