Trump’s Use of Emergency Powers to Impose Tariffs Is an Abuse of Power

In an unprecedented move, President Trump justified the imposition of tariffs on Canada. China, and Mexico under the International Emergency Economic Powers Act (IEEPA) based on an “extraordinary threat” from illegal immigration and drug trafficking. The problem for the president, however, is that IEEPA does not explicitly grant tariff authority at all—indeed, the words “duty” or “tariff” appear nowhere in the statute—and to the extent that it grants power to restrict imports, it requires that there be a direct connection between the action taken (here, broad-based tariffs) and a properly declared national emergency (here, migrants and fentanyl crossing the southern border). But there is no direct connection between tariffs on imports of all goods—no matter how innocent or far removed from fentanyl—and the declared national emergency.

The president’s initial move to impose IEEPA-based tariffs came on Feb. 1, with 10 percent tariffs announced on all goods from China and 25 percent on all goods from Mexico and all goods other than energy products (which were subject to a 10 percent duty) from Canada. The president subsequently paused their application to imports from Canada and Mexico but increased the tariffs to 20 percent on all goods from China. On March 3, he proceeded with the 25 percent tariffs on Mexico and Canada (10 percent on energy products), only to further pause those additional tariffs on Mexico and Canada for any goods meeting the United States-Mexico-Canada Agreement (USMCA) rules of origin. He has also threatened additional IEEPA tariffs on a wide range of products, including cars, semiconductors, and oil, as well as on imports from various other countries. China has responded with retaliatory measures and initiated dispute settlement proceedings at the World Trade Organization. Similarly, Canada responded with tariffs of 25 percent on $155 billion of American goods.

IEEPA has never been used to impose tariffs. Congress enacted IEEPA nearly 50 years ago to give the president the power to act promptly to protect the nation’s security. Although this delegation grants the president broad discretion, it was not meant to provide him with a blank check on trade policy. The U.S. Constitution gives Congress the sole power to regulate foreign commerce and impose tariffs. The president’s powers can thus come only from authority that Congress expressly delegated. This begs the question: Did Congress clearly intend to hand over its tariff authority to the president or to permit him to exercise it in such a sweeping and procedurally skimpy manner? The answer is no, especially without establishing a clear relationship to a particular national emergency.

The Major Questions Doctrine

The U.S. Supreme Court’s articulation of the major questions doctrine may have created insurmountable hurdles to the president’s desire to use IEEPA as the legal basis for sweeping tariffs. Congress frequently delegates authority to the executive branch to regulate particular aspects of society, but in a number of recent decisions, the Supreme Court has declared that for an agency to decide an issue of major national significance, its action must be supported by clear congressional authorization. In 2022, the Court in West Virginia v. EPA explicitly referred to this concept as the major questions doctrine, which builds on years of understanding that Congress does not delegate sweeping and consequential authority in a “cryptic” fashion.

The major questions doctrine entails that the Court “expect[s] Congress to speak clearly if it wishes to assign to an agency decisions of vast ‘economic and political significance’,” looking at the “the history and the breadth of the authority that [the Executive Branch agency] has asserted.” In Utility Air Regulatory Group v. EPA, the Court expressed skepticism when agencies claim to have discovered in a long-extant statute “an unheralded power to regulate ‘a significant portion of the American economy’.”

While the question of whether the major questions doctrine applies not only to agencies but also to the president remains unsettled, the doctrine’s aim to prevent actions that lack clear statutory authorization and carry vast economic and political significance to bypass congressional authority makes its application to presidential actions both logical and necessary. The major questions doctrine is grounded in the principle of separation of powers and a practical understanding of legislative intent, which suggests that it applies not only to the delegation of authority to executive branch agencies but also to the president himself. Several appellate court decisions strongly support this interpretation, such as from the Eleventh Circuit, which reasoned that since the major questions doctrine is an interpretive canon used throughout the administrative system, it should logically extend to the executive atop the administrative state. The imposition of broad tariffs under IEEPA not only raises concerns about executive overreach but also directly challenges the separation of powers and legislative intent, risking tariff policy becoming “nothing more than the will of the President.”

There can be no doubt that using IEEPA to impose broad tariffs is a major question. It falls squarely within the Supreme Court’s notion of a “novel” use of an “unheralded” power given that no other president has used IEEPA in its nearly 50-year history to impose tariffs. The decision to impose the new tariffs on the United States’s three largest trading partners constitutes a “transformative power expansion” and carries “vast economic and political significance” as it has significant breadth, national impact, and an effect on large segments of the economy. In 2024, imports from Canada, China, and Mexico exceeded $1.3 trillion. U.S. exports to Canada and Mexico totaled $680 billion, and trade among the three USMCA parties supports over 17 million jobs. Chinese imports of goods in 2024 were $439 billion, and additional tariffs on China will impact smartphones, computers, furniture, shoes, toys, food, and more. The Peterson Institute for International Economics estimates that these tariffs collectively are the “largest tax increase in at least a generation” and will cost the typical U.S. household more than $1,200 a year. Moreover, much of the burden of paying the tariffs will fall on lower- and middle-income households. Trade historian Douglas Irwin has noted that these IEEPA tariffs “would constitute a historic event in the annals of U.S. trade policy.”

Applying the major questions doctrine to IEEPA also shows that Congress did not “clearly authorize” the president to impose broad-based tariffs. IEEPA sets forth a wide array of actions that the president can take following the formal declaration of a national emergency, including the power to “regulate … importation or exportation” of any property in which a foreign government or foreign national has any interest. While the power to regulate importation can be read to include the imposition of tariffs, an argument can be made that this does not constitute a sufficiently explicit congressional authorization. If Congress clearly intended to delegate its tariff power, it would have used tariff terms (“tariffs,” “duties,” or “taxes”) and called for a tariff-related process to establish the factual predicate for and the appropriate level of such duties. This is not the case with IEEPA.

The words “tariff’ or “duty” appear nowhere in the statute, in contrast to other laws in which Congress has clearly delegated tariff authority (such as Section 301, specifically authorizing “duties” to respond to unjustifiable acts that burden U.S. commerce; or Section 201, permitting “duties” or “tariff-rate quotas” to respond to a surge in imports that seriously injures a U.S. industry). Indeed, the most commonly used additional tariffs (antidumping and countervailing duties) are imposed following detailed procedures focused on calculating the appropriate level of duties along with developing a formal record of the factual predicate for such duties. As Peter Harrell observes., the president has numerous tariff avenues available to him but has chosen the “minimal procedural hurdle” IEEPA instead, even though the legislative history of IEEPA does not include an explicit authorization by Congress to impose tariffs.

The Dubious Link Between Broad-Based Tariffs and a Crisis of Illegal Drugs and Immigrants

Even if the major questions doctrine is held not to apply to delegations to the president, or, as Addar Levi suggests, the courts are reluctant to apply the doctrine in the context of national security decisions, President Trump exceeded any potential IEEPA delegated powers by adopting across-the-board tariffs that bear no reasonable connection to his declared emergency.

The only court case called upon to examine the connection between emergency powers and tariff authority, United States v. Yoshida International, upheld President Nixon’s temporary surcharge under the Trading with the Enemy Act (TWEA), IEEPA’s predecessor. However, in addition to the case predating the major questions doctrine, there is a stark difference between the limited nature of Nixon’s tariffs and Trump’s broad-based tariffs. Nixon’s tariffs were narrowly tailored, temporary, imposed at levels that did not exceed the rates Congress had approved, and calculated to meet a particular national emergency that was susceptible to being addressed through tariffs—the balance-of-payments crisis arising out of the U.S. withdrawal from reliance on the gold standard to determine exchange rates. Indeed, while the lower court in Yoshida found that TWEA did not delegate tariff authority to the president, the appeals court ultimately upheld Nixon’s tariffs, finding that imposing a temporary surcharge at rates below congressionally approved ceilings in order to discourage imports bore an “eminently reasonable relationship” to the declared balance-of-payments emergency. Here, it appears that President Trump’s executive orders imposing across-the-board tariffs—10 percent on Canadian energy products and potash, 25 percent on other goods from Canada and those from Mexico (even if subject to a 30-day pause or an exemption for USMCA qualifying goods) and 20 percent on all goods from China—include neither the temporal nor other specific limitations that Nixon’s tariffs did. There is no time frame for removing the duties, the duties exceed the rates Congress approved for Canada and Mexico in the USMCA, and tariffs on all products do not bear “an eminently reasonable relationship” to fentanyl. They thus appear to fall precisely into the box that the Yoshida court suggested would not be permissible: tariffs imposed at whatever rates the president deems desirable that may render U.S. trade agreement programs (such as the USMCA) nugatory.

Not only does President Trump’s measure imply a far more significant change to U.S. tariff and trade policy than Nixon’s did, but it was also adopted under a more limited authority than TWEA. Two years after the Yoshida decision, Congress transformed TWEA into IEEPA with the stated goal of both narrowing the scope of the delegation of power and adding procedural limitations, including those in the National Emergencies Act (NEA), making it clear the president’s exercise of this authority is not absolute.

Among the changes was limiting what can constitute a national emergency to “unusual and extraordinary threats” from outside the U.S. While these terms are not defined in the statute, legislative history indicates that “emergencies are by their nature rare and brief, and are not to be equated with normal, ongoing problems.” Given how long the United States has been fighting the drug war, the fentanyl trade, and the influx of illegal migrants, it is hard to see these emergencies as “rare” or “brief.” Moreover, the national emergency declaration focused on illegal migrants and illicit narcotics at a time when illegal southern border crossings and both fentanyl deaths and overall preventable drug deaths have been down since 2023.

The need to transform TWEA into IEEPA arose largely due to concerns that TWEA had essentially become “an unlimited grant of authority” and actions were adopted that did not bear any relationship to a specifically declared emergency. To address these concerns, a procedural restriction was added—in §1703(b)—that required the president to immediately report to Congress explaining why the particular actions under IEEPA are “necessary” to specifically “deal with” the declared emergency. This provision indicates that the measures taken (here, tariffs) must be directly linked to the unusual and extraordinary threat declared (here, a public health crisis), while the cross-references in §§1701 and 1702(a)(1) reinforce the limitation that the president may exercise authority only to the extent necessary to deal with the declared threat.

No such relationship between the measure and the declared objective exists in the present case. The president has contended that illegal trafficking of fentanyl from Canada, China, and Mexico is the cause of “a public health crisis” in the U.S., justifying broad tariffs under IEEPA. However, IEEPA requires that the president demonstrate why the imposition of tariffs on all goods is necessary to resolve the crisis, which is rooted in the excessive promotion of opioid painkillers in the U.S., the lack of prevention and addiction-treatment policies, and a number of other factors not linked to imports from Canada, China, or Mexico. Nor is it clear that tariffs on unrelated goods can address the fact that the vast majority of those caught during border crossings with fentanyl are U.S. citizens. IEEPA’s authority to regulate is not meant for domestic circumstances or for non-economic aspects of international relations.

Nowhere in the executive orders does the president provide the required explanation of why tariffs on all goods—including those that have nothing to do with drugs—are the necessary or appropriate tool to deal with a public health crisis in the U.S. To the contrary, to the extent that the tariffs cause a major economic downturn in Mexico, the impact of the tariffs may be increased illegal migration and smuggling of illicit goods. Moreover, the tariffs will also be applied to legal, needed drugs and essential hospital supplies, thereby causing price increases that will negatively impact public health in the U.S. Rather than making the required link between tariffs and the declared public health crisis, the White House’s fact sheet accompanying the executive orders states that the IEEPA tariffs were being imposed as a source of leverage.

In addition, IEEPA requires that the president declare a national emergency with respect to such a threat before adopting any actions under 50 U.S.C. § 1702(a)(1)(B). The only free-standing National Emergencies Act declaration was issued on Jan. 20, proclaiming a national emergency on the southern border. The Feb. 1 executive orders simply extended this emergency to apply to both Canada and China due to their failure to counter drug and human trafficking (Canada) and chemical precursor suppliers and money laundering (China). There was no new, separately declared national emergency. It is unclear whether embedding a national emergency declaration in an executive order imposing tariffs satisfies the requirements of the NEA that emergency powers can be exercised only when the president “specifically declares a national emergency” via a proclamation that is immediately transmitted to Congress and published in the Federal Register, nor the requirement in IEEPA that the president, “in every possible instance,” consult with Congress before taking action.

To permit IEEPA—a statute that does not mention tariffs and is designed to deal with unusual and extraordinary threats to America’s national security—to be used to impose tariffs at whatever level the president decides in order to create leverage to address any national emergency, no matter how disconnected from trade or imported goods, is to suggest that there are virtually no limits on the president’s power to impose tariffs. This can subvert the rule of law, undermine the Constitution and its separation of powers, risk exacerbating tensions with our trading partners, and invite destructive retaliation.

Editor’s note: The author would like to thank Madeleine Pumberger and Kristina Iotzova for their invaluable contributions to this article.