The second Trump administration started out with a blitz of tariffs and threats of tariffs, harkening back to a much earlier time of Republican politics. In his four weeks in office, President Donald Trump has threatened tariffs against Colombia, Canada, and Mexico, as well as imposing additional tariffs against China. (Trump administration Executive Orders 14193, 14194 and 14195, Feb. 1, 2025) (E.O.s). He has additionally threatened the E.U. with a 200% tariff on alcoholic beverages, though no official action has yet been taken towards that end. Canada and the EU have threatened reciprocal tariffs. Other countries, such as India, are taking steps to placate Trump hoping to forestall tariffs against themselves. The President’s seemingly freewheeling approach to tariffs, sometimes announced via tweet and with intermittent pauses, has spooked the financial markets and generated concern among the legal and academic communities.
President Trump’s purported authority for many of these tariffs stems from the powers Congress delegated to the President under the International Emergency Economic Powers Act (IEEPA, 50 U.S.C. § 1702), with others being justified under the Trade Expansion Act of 1962 (19 U.S.C. § 1801). (Trump administration Proclamations 10895 and 10896, Feb. 10, 2025). IEEPA permits the president to “regulate… importation” during a declared “national emergency.” (50 U.S.C. §§ 1701-1702). Presumably, this language is the textual basis for President Trump’s tariff actions under the IEEPA. Congress has also enacted specific tariff authorities. The Trade Expansion Act authorizes the President, after going through a specified process, “to take action to adjust imports.” (19 U.S.C. § 1862). The Trade Act of 1974 authorizes the President, after going through a specified process, “to impose duties or other import restrictions.” (19 U.S.C. § 2411). With these tariff authorities already in place is it likely that Congress meant to provide the President essentially unfettered tariff authority through IEEPA? We do not discuss here the economic impact of the Trump administration’s tariffs or conflicts with the United States Mexico-Canada Trade Agreement (USMCA) entered into during the President’s first term in office.
Congress passed the IEEPA to enable the President to deal quickly with national emergencies, but under a framework where it could override the President’s actions by a legislative veto. That control mechanism is gone after the Supreme Court’s decision in INS v. Chadha, 462 U.S. 919 (1983), declaring the legislative veto unconstitutional. The current lack of meaningful congressional checks creates a constitutional nondelegation issue for executive actions under the IEEPA regime that we explore in a forthcoming article. Here we intend to show that the Trump administration’s threats and imposition of tariffs are inconsistent with how tariffs are normally authorized by the legislature and present a problematic invocation of the IEEPA’s broad, seemingly uncabined language.
The Normal Tariff Process
The Constitution’s Commerce Clause and Imposts Clause give Congress the power to impose tariffs. Congress has delegated to the Executive Branch the power to “take action to adjust imports” in circumstances which “threaten to impair the national security” of the United States (19 U.S.C. § 1862), and to “impose duties” or “suspend, withdraw, or prevent the application of, benefits of trade agreement concessions” in circumstances which are “unreasonable or discriminatory and burdens or restricts United States commerce.” (19 U.S.C. § 2411). Both of these delegations have procedures that must be followed for the tariffs to take effect. Section 1862 states that only “after receiving a report [from the Secretary of Commerce]” does the President get power “to adjust imports.” (19 U.S.C. § 1862(c)). Section 2411 states that “if the Trade Representative determines [under the procedures of Section 2414]… an act, policy, or practice of a foreign country is unreasonable or discriminatory and burdens or restricts United States commerce… the Trade Representative shall take action.” (19 U.S.C. § 2411(b)) (Section 2411 has a slightly different required determination for subsection (a)).
Both statutes place the procedures as a necessary antecedent to the action which can be taken. The Federal Circuit stated as much, describing the Section 1862 process as “[w]hen the investigation is completed, the Secretary of Commerce must provide the President with findings and recommendations… the President then must determine whether he concurs with the Secretary’s findings.” (Am. Inst. for Int’l Steel, Inc. v. United States, 806 Fed. App’x 982, 984 (Fed. Cir. 2020)). The situation is similar for Section 2411. The Court of International Trade stated that “the sections succeeding 19 U.S.C. § 2411 set out the steps that the [U.S. Trade Representative] must perform before action can be taken under § 2411.” (Almond Bros. Lumber Co. v. United States, 33 C.I.T. 625, 636 (C.I.T. 2009), rev’d on other grounds, Almond Bros. Lumber Co. v. United States, 651 F.3d 1343, 1353 (Fed. Cir. 2011) (finding that the U.S. Trade Representative did comply with the proper procedural order under the statute for the tariff agreement)). Both statutes provide a sequential order, with the process preceding the presidential determination.
In order for the President to exercise the powers delegated in Section 1862, the Secretary of Commerce must first “initiate an appropriate investigation to determine the effects on the national security of imports of the article which is the subject” of the proposed import control action. (19 U.S.C. § 1862(b)(1)). The investigation requires the Secretary of Commerce to “consult with the Secretary of Defense,” “seek information and advice from, and consult with, appropriate officers of the United States,” and “if it is appropriate and after reasonable notice, hold public hearings.” (19 U.S.C. § 1862(b)(2)). This investigation is required to conclude “no later than the date that is 270 days” after the investigation has begun and then the Secretary of Commerce must “submit to the President a report on the findings” of the investigation, which must include “the effect of the importation of such article in such quantities or under such circumstances upon the national security and, based on such findings, the recommendations of the Secretary for action or inaction.” (19 U.S.C. § 1862(b)(3)). After receiving the report, the President has “90 days… [to] determine whether the President concurs… [and to] determine the nature and duration of the action” needed to protect U.S. national security interests. (19 U.S.C. § 1862(c)(1)). Any action the President takes must be implemented “no later than… 15 days after” the President decides to take action. (19 U.S.C. § 1862(c)(1)). Additionally, within “30 days after the date on which the President makes [such] determinations” the President must “submit to the Congress a written statement of the reasons why the President has decided to take action.” (19 U.S.C. § 1862(c)(2)).
Section 2411 provides two ways for the President to exercise the powers delegated by the statute. First, subsection (a) covers “[m]andatory action”. This subsection applies whenever the “United States Trade Representative determines… that the rights of the United States under any trade agreement are being denied” or that “an act, policy, or practice of a foreign country” is violating a trade agreement with the U.S. or is “unjustifiable and burdens or restricts United States commerce.” (19 U.S.C. § 2411(a)(1)). Upon such a determination, the Trade Representative “shall take action.” (19 U.S.C. § 2411(a)(1)). The section also includes a list of circumstances where the “Trade Representative is not required to take action.” (19 U.S.C. § 2411(a)(2)). Second, subsection (b) provides a discretionary basis for action whenever “the Trade Representative determines… [that] an act, policy, or practice of a foreign country is unreasonable or discriminatory and burdens or restricts United States commerce, and action by the United States is appropriate.” (19 U.S.C. § 2411(b)). Both the mandatory and discretionary actions require the Trade Representative to make determinations “under section 304(a)(1) [19 U.S.C. § 2414(a)(1)].” These determinations require an “investigation initiated under section 302 [19 U.S.C. § 2412].” These investigations require “consult[ation] with appropriate committees” and if the investigation was initiated by a petition, the Trade Representative must “provide opportunity for the presentation of views concerning the issues, including a public hearing.” Finally, the investigation must determine whether “the rights to which the United States is entitled under any trade agreement are being denied” or if “any act, policy, or practice described in subsection (a)(1)(B) or (b)(1) of [19 U.S.C. § 2411] exists.” (19 U.S.C. § 2414(a)(1)).
Both Section 2411 and Section 1862 have provisions for consultation, a process which necessarily will slow down the implementation of actions under each of these statutes. During his first term, President Trump seems to have followed the above procedures when implementing his tariff plans. (Mercer & Kahn, America Trades Down: The Legal Consequences of Trump’s Tariffs, Lawfare, March 13, 2018). But this time, President Trump decided to bypass these specific tariff authorities for a process where he could act quickly and unilaterally to impose the tariffs he wanted. President Trump’s decision to use the IEEPA is certainly more expedient, but it is also a novel application of that law and an end-run around the process specifically set up by Congress to authorize presidential tariff authority.
A Brief History of IEEPA
Prior to the IEEPA, the President’s emergency economic powers were governed by the Trading with the Enemy Act (TWEA, 50 U.S.C. § 4301). Congress amended the TWEA by enacting the National Emergencies Act (NEA, 50 U.S.C. § 1601) in 1976 and IEEPA in 1977 (50 U.S.C. § 1701). The NEA provided “for orderly implementation and termination of future national emergencies.” (S. Rep. No. 94-1168, 94th Cong., 2d Sess., at 1 (Aug. 26, 1976)). The effect of IEEPA was to confine the TWEA to instances of declared war and to provide the President “somewhat narrower powers subject to congressional review in times of ‘national emergency’ short of war.” (H.R. Rep. No. 95-459, 95th Cong., 1st Sess., at 1 (June 23, 1977)). Congress considered this overhaul of presidential emergency power to be necessary because the TWEA “confer[red] enough authority [to the President] to rule the country without reference to normal constitutional processes [i.e. congressional oversight and control].” (S. Rep. No. 93-549, 93d Cong., 1st Sess., at iii (Nov. 19, 1973)). As an example, the TWEA allowed the President to “investigate, regulate, or prohibit… any transactions… between the United States and any foreign country” after the declaration of a national emergency. (TWEA, 40 Stat. 411 (1917)). IEEPA limited such powers so that they “may only be exercised to deal with an unusual and extraordinary threat with respect to which a national emergency has been declared… and may not be exercised for any other purpose.” (50 U.S.C. § 1701).
As part of returning emergency powers to “normal constitutional processes,” Congress included a legislative veto provision in the NEA. Such a veto provision was also considered for the IEEPA, but, as the author and a principal sponsor of the bill, Jonathan Bingham (D-NY), stated, it was ultimately deemed “unnecessary since the Congress already ha[d] the authority under the National Emergencies Act to overrule or veto the President’s declaration of an emergency.” (123 Cong. Rec. H38165 (Nov. 30, 1977) (statement of Rep. Jonathan Bingham)). Unfortunately, the Supreme Court’s decision in INS v. Chadha (ruling the legislative veto unconstitutional) rendered this method of legislative control inoperative. This lack of meaningful congressional checks is especially noticeable through modern uses of the IEEPA where the Executive branch does not even contend that they are using the statute for emergency purposes. When the Obama administration used IEEPA to impose sanctions on Venezuela, Obama’s Deputy National Security Advisor, Ben Rhodes, acknowledge that “the United States does not believe that Venezuela poses some threat to our national security.” (statement of Ben Rhodes 2015).
Tariffs Under the TWEA and IEEPA
President Nixon used the TWEA to impose “a supplemental duty amounting to 10 percent ad valorem” on imports in 1971. (Nixon administration Proclamation 4074, Aug. 15, 1971). The proclamation created an additional, across-the-board 10 percent tariff on imports, with some notable exceptions. Nixon stated “that if the imposition of an additional duty of 10 percent ad valorem would cause the total duty or charge payable to exceed the total duty or charge payable at the rate prescribed in column 2 of the Tariffs Schedules of the United States, then the column 2 rate shall apply.” (Proclamation 4074). In effect, this meant that the increased tariffs could not exceed the statutory rate set by Congress and instead only affected goods that had previously received trade concessions.
Nixon’s proclamation did not cite the TWEA, but instead referred to “statutes, including, but not limited to, the Tariff Act of 1930, as amended, and the Trade Expansion Act of 1962,” both of which also delegated tariff authority to the President. When challenged in court over this action, the Nixon administration invoked the TWEA as a statutory basis for the tariff. (United States v. Yoshida Int’l, Inc., 526 F.2d 560, 572 (Court of Customs and Patent Appeals, 1975)). The customs court upheld Nixon’s tariff actions reasoning that “the TWEA authorized the President, during an emergency… to ‘regulate importation,’ [(TWEA § 5(b))] by imposing an import duty surcharge.” The power to regulate importation continued from the TWEA to IEEPA, as the latter merely sought to “provid[e] [the President] somewhat narrower powers [than the TWEA] subject to congressional review.” (H.R. Rep. No. 95-459, 95th Cong., 1st Sess., at 1 (June 23, 1977)). For some commentators, this history leaves it unclear whether there is “a basis for distinguishing Yoshida to reach a different conclusion about [the IEEPA].” (Anderson & Claussen, The Legal Authority Behind Trump’s New Tariffs on Mexico, Lawfare, June 3, 2019).
Yoshida did not, however, provide a green light for all presidentially imposed tariffs under the TWEA/IEEPA. The customs court stated that “[e]ach Presidential proclamation or action under [the TWEA] must be evaluated on its own facts and circumstances.” The customs court emphasized that Nixon’s use of the TWEA was “limited to articles which had been the subject of prior tariff concessions” and did not “tear down or supplant the entire tariff scheme of Congress.” In fact, Nixon’s proclamation was designed so that it would not “disregard [the] congressional will.” The court concluded its analysis by stating “the President imposed a limited surcharge, as a temporary measure calculated to help meet a particular national emergency, which is quite different from imposing whatever tariff rates he deems desirable.” In the customs court’s view, the former is acceptable, whereas the latter is presumably not.
In contrast to the Nixon administration’s relatively narrow use of the TWEA, affecting only (according to one economic analysis) 52% of imports and which could not increase the tariffs above the statutory rates, the recent tariff actions by President Trump under the IEEPA purport to target “[a]ll articles that are products of Mexico,” “[a]ll articles that are products of Canada,” and “[a]ll articles that are products of the [People’s Republic of China (PRC)].” (E.O.s 14193, 14194, and 14195). Unlike Nixon’s tariffs, the Trump tariffs do not attempt to work within the congressional tariff scheme because they are expressly “in addition to any other duties, fees, exactions, or charges applicable to such imported articles” and there is no reference to limits set by Congress in specific tariff legislation, let alone issues under the United States-Mexico-Canada Agreement of 2020 (USMCA). The USMCA explicitly provides that “[u]nless otherwise provided in this Agreement, no Party shall increase any existing customs duty, or adopt any new customs duty, on an originating good.” (USMCA art. 2.4). On March 6, 2025, President Trump amended E.O.s 14193 and 14194 (tariffs against Canada and Mexico) to exempt goods that are “entered free of duty” under the USMCA. (Trump Administration E.O.s on March 6, 2025 [not published in Federal Register yet]). It is possible this amendment was (at least in part) in response to the potential violation of the USMCA by these tariffs, however, the Trump administration has not made any statement to such effect. Additionally, it should be noted the USMCA provides and exception for “protection of [a country’s] own essential security interests,” (USMCA art. 32.2) but none of the tariff actions by President Trump against Canada and Mexico (or their subsequent amendments) have invoked this provision of the USMCA.
Members of Congress from both sides of the aisle have spoken out against the proposed Trump tariffs. Senator Chris Coons (D-DE) stated that the tariffs will “do catastrophic damage to our relationships with our allies and raise costs for working families by hundreds of dollars a year.” Even members of President Trump’s own party expressed concern over the tariffs. Senator Susan Collins (R-ME) stated that “the proposed tariffs on Canada would be detrimental to Maine families and our local economies.” Senator Mitch McConnell (R-KY) stated that “tariffs are bad policy.”
Even with this degree of bipartisan opposition to Trump’s tariff plans, there is little that Congress can actually do. The only available means of congressional control is by passing a new law or cancelling the national emergency declared by Trump. Both approaches would require a joint resolution which would not become law without a veto-proof majority in both Houses. The lack of congressional controls is an issue that was highlighted by Congress during the debates leading up to the passage of the NEA. Representative John Conyers (D-MI) had asked “[w]hat happens if the President of the United States vetoes the congressional termination of the emergency power?” (121 Cong. Rec. H27646 (Sep. 4, 1975) (statement of Rep. John Conyers)). Representative Walter Flowers (D-AL) answered, assuring the House that “a concurrent resolution would not require Presidential signature or acceptance. It would be an impossibility that it would be vetoed.” (121 Cong. Rec. H27646 (Sep. 4, 1975) (statement of Rep. Walter Flowers)). After Chadha, the veto risk is very real.
This congressional inability to meaningfully control the President’s powers under the IEEPA is precisely the problem Congress attempted to solve back in the 1970s. The TWEA had “become essentially an unlimited grant of authority for the President to exercise, at his discretion, broad powers in both the domestic and international economic arena, without congressional review.” (H.R. Rep. No. 95-459, 95th Cong., 1st Sess., at 7 (June 23, 1977)). Without the legislative veto in the NEA, the President’s powers under IEEPA warrant the identical concern. President Trump’s use of the IEEPA to implement broad tariffs against other nations with minimal process or oversight is inconsistent with the normal path for executive tariffs. Instead, Trump is using the IEEPA as a source of “unlimited power… to act virtually at will”—the very thing IEEPA was meant to prevent. (123 Cong. Rec. H22475 (July 12, 1977) (statement of Rep. Jonathan Bingham)).
