It appears that the Trump administration is preparing for SCOTUS to demolish its tariff policy

President Donald Trump’s foreign trade policy has been marked by contradictions since the start of his second term. He says he’s using tariffs to help close the U.S. budget deficit while increasing that deficit by $2.4 trillion through his tax cuts and defense spending program. He presented himself as a populist by promising to reduce inflation, but made inflationary tariffs his signature economic policy. He cited national security threats to justify his emergency tariffs, but then implemented harsh taxes on Brazilian food products after the country convicted and sentenced its former president, a Trump ally, to prison for attempted self-coup.

This inside-out approach was on full display during last month’s oral arguments before the Supreme Court, when the administration’s top prosecutor assured the justices that Trump’s tariffs were regulatory and not revenue-generating, despite Trump’s claims that the tariffs made the United States “a rich nation” and his allies publicly praising the billions of dollars collected in tariff revenue. The justices were deeply skeptical, and soon after, Trump announced a series of changes to his tariffs on certain foreign imports imposed under the International Emergency Economic Powers Act (IEEPA). At the same time, the administration continued to pile on tariffs on more specific products under a different law.

Whether these pivots are more about the likely and imminent SCOTUS decision to overturn Trump’s emergency tariffs, or the issue of affordability for voters, depends on who you ask. At the same time, Trump administration officials are now openly discussing plans to circumvent an adverse SCOTUS ruling by shifting IEEPA tariffs to other laws.

In late November, Bloomberg cited unnamed administration officials to report that the Trump administration was exploring ways to replace the IEEPA tariffs with other laws, including Section 301 and Section 122 of the Trade Act, which provide unilateral presidential authority over pricing, but with more limits. Section 122 only allows a 15% rate for 150 days, for example.

Treasury Secretary Scott Bessent said Wednesday that the administration would rely more on the Section 232 tariff law already in place in the event of a losing SCOTUS decision.

“We can recreate the exact pricing structure with 301s, with 232s, with – I think – a 122,” Bessent was quoted as saying at the New York Times DealBook Summit on Wednesday.

The White House did not respond to a request for comment.

Contacted by email, a spokesperson for U.S. Customs and Border Protection, which helps regulate foreign trade, said the agency does not comment on pending litigation.

“CBP continues to implement and enforce tariffs consistent with the directives of the Executive Order and Proclamation,” the spokesperson said.

Since oral arguments on November 5, Trump has removed or modified IEEPA tariffs on myriad products imported from at least seven countries. Coffee and beef from Brazil, pharmaceuticals, aerospace equipment and key products from Malaysia, and textiles and clothing from El Salvador all enter the United States with a 0% tariff, for example.

It appears Trump is rushing to make deals in case the administration’s tariff leverage is taken off the table by the Supreme Court, Inu Manak, senior fellow for international trade at the Council on Foreign Relations, told TPM.

“We saw that the focus was on concluding negotiations that had sort of started due to the imposition of tariffs,” Manak said. “And I think part of the reason is the fear that if the tariffs go away, there will be no incentive for every country to sit down and negotiate with the United States.”

Manak noted that Trump’s trade deal frameworks have evolved during his term, from two-page documents without details to more specific policy commitments that benefit the United States. The shift reflects a “choose your own adventure” foreign trade policy strategy on the part of the administration, where, through one-on-one negotiations, officials have gradually learned what they can extract from trading partners, Manak said.

Since early November, the administration has also applied product-specific tariffs on imports, including medium- and heavy-duty trucks and buses, under Section 232. These changes were intended not so much to guard against a negative Supreme Court ruling as to negotiate deal frameworks with trading partners and address affordability issues, Alex Durante, senior economist at the right-wing Tax Foundation, told TPM.

“I think that was kind of something that he always intended to do,” Durante said of Trump, “which is to impose tariffs and then see if we can get some concessions and in return we would reduce some of the tariffs that we impose on them.”

Durante said he didn’t believe Trump would ever want a “tariff-free world” but was using the drastic levies as a negotiating tool for trading partners. In exchange for commitments to buy more American goods and invest domestically, the administration will change — but generally not eliminate — tariffs on a country’s imports. In this way, the administration’s contradictory approach to this trade mechanism persists, Durante said.

“That’s been the general theme of a lot of these deals: There’s an announcement that so-and-so is going to buy $X billion of whatever product. And I think when people look critically under the hood, they come to the conclusion that that seems unrealistic, based on what we know about these markets,” he said.

During Trump’s first term, for example, China promised billions in purchases of American goods in a so-called phase one deal, but much of that investment never materialized. Early on, experts noted that China’s engagement exceeded the country’s demand for U.S. trade.

“So this strategy is clearly not working the way the president intended,” Durante said.

The Supreme Court typically issues its rulings in June, but the tariff case is on an accelerated schedule: international trade law firms expect the court to issue a ruling on the case as soon as this month, or early next year.