The details of President Donald Trump’s promised tariffs have been announced, and as many Americans are mourning what the plummeting stock market is doing to their 401(k) plans and investment accounts, others are asking if his tariffs are even legal. Does Trump, or any American president, really have the power to unilaterally impose these tariffs?
Does Trump, or any American president, really have the power to unilaterally impose these tariffs?
A Florida company that sells stationery supplies believes he doesn’t, and on Thursday filed a lawsuit against Trump and other members of his administration, alleging that the president lacks the ability to impose tariffs on China. The suit’s argument, boiled down, is that while Trump claims he has the power to levy these tariffs under a federal statute called the International Emergency Economic Powers Act of 1977 (“IEEPA”), he does not have such power.
We knew that legal challenges to the Trump tariffs would come and that they’d argue that Trump had exceeded the admittedly broad authority Congress has granted presidents.
There is perhaps a more foundational question, though. Why is a president imposing tariffs at all, when the Constitution grants that power to Congress? You wouldn’t necessarily know it if you’ve been listening to the president, but the Constitution assigns the power to regulate foreign commerce and impose tariffs to Congress, not the White House.
So why does Trump believe that he has the power to do what he’s doing? The answer is that for almost a century, Congress has ceded much of its authority to regulate foreign commerce to the president. Congress’ abdication of responsibility allowed presidents to usurp that power and impose their own will on our global trading partners. And, as we see with the tumbling stock marking, putting such decisions in the hands of one person can bring potentially disastrous results. This is not what the founders intended. Those who drafted our Constitution envisioned a government of truly shared power, between three co-equal branches, two of them political. Sadly, on the issue of imposing tariffs, the legislative branch hobbled itself to the benefit of the executive branch.
In 1934, in the middle of the Great Depression, Congress delegated much of its authority when it passed the Reciprocal Trade Agreements Act, giving the president the power to negotiate trade agreements and make certain changes to U.S. tariff rates without congressional approval. Thus, Franklin D. Roosevelt, our country’s 32nd president, was the first one granted the power to unilaterally alter tariffs.
Franklin D. Roosevelt, our country’s 32nd president, was the first one granted the power to unilaterally alter tariffs
Three decades later, in 1962, Congress passed the Trade Expansion Act, which gives the president the power to change tariffs based on an investigation and determination by the Department of Commerce that some imports pose a national security threat. During his first administration, Trump used this power much more liberally than his predecessors, and he twice imposed tariffs on steel and aluminum pursuant to his power under that law’s Section 232. He is relying on the same section of that law this term to reimpose tariffs on steel and aluminum, which he alleges are necessary to maintain national security.
Twelve years after the Trade Expansion Act, Congress relinquished even more power over foreign commerce to the executive branch. Section 301 of the Trade Act of 1974 gives the U.S. trade representative, a Cabinet member, the power to impose trade sanctions on foreign countries when they break trade agreements or harm U.S. commerce by taking actions that are “unjustifiable” or “unreasonable.” Indeed, the Trump administration cited Section 301 when it imposed “reciprocal tariffs” this week. Trump has argued that China has broken one or more trade agreements, thus providing a pathway to impose sanctions (aka tariffs) on goods imported from there.
Emily Ley Paper, the Florida company that sued the Trump administration on Thursday, argued that the government is seeking to illegally “bypass” those trade statutes. The suit focuses on yet another statute, the above-mentioned IEEPA, arguing that it does not provide the president the power to impose taxes. In fact, the suit points out that no president has ever used that law to impose tariffs. The plaintiffs argue that, even if the IEEPA does provide presidents with the power to levy tariffs, that is only the case when there is a national emergency that trade sanctions can alleviate.
Trump says his tariffs are a response to the flow of fentanyl and other illegal drugs into the United States. But the plaintiffs allege that there is no real connection between the tariffs on China and the opioid crisis.
While there may be an inclination to think that the conservative U.S. Supreme Court might bless the Trump administration’s broad claim of executive authority, the type of challenge we see being made in Thursday’s lawsuit might gain new traction with the court for three reasons spelled out in that lawsuit. Under what’s called the nondelegation doctrine, Congress cannot simply throw up its hands and delegate its constitutionally mandated duties to the executive branch. First, there’s the foundational argument that Congress simply ceded too much authority to the president. The Constitution gave the power to impose tariffs to Congress. Though Congress gave that power away to another branch of government 150 years later, it may not have had the power to do that. Under what’s called the nondelegation doctrine, Congress cannot simply throw up its hands and delegate its constitutionally mandated duties to the executive branch. While it’s true that in 1976 the Supreme Court unanimously ruled that a portion of Section 232 on the Trade Expansion Act was not an unconstitutional delegation of power from Congress to the president, that Supreme Court differed greatly from the one we have now. Chief Justice John Roberts’ conservative court may be willing to revisit this case, or at least embrace a more robust view of the nondelegation doctrine. A second related argument is that Congress has violated the “major questions doctrine,” under which Congress must provide clear authorization before an executive agency can decide an issue of national significance. Although the history of our courts indicates that judges will generally defer to the president’s decisions in this area, a recent Supreme Court case provides yet a third reason to wonder if Trump’s power will be checked in this case. In June 2024, Roberts wrote the opinion overturning the doctrine of “Chevron deference” and concluded that courts should exercise independent judgment and not defer to an executive agency’s interpretation of a congressional statute when it is ambiguous. This would allow courts to perform a more searching review of actions that Trump takes under the congressional statutes authorizing him to impose tariffs in certain circumstances. A federal judge or the Supreme Court may pump the breaks on Trump’s tariffs. But the best solution to this problem that’s destroying Americans’ investment accounts is not to rely on the judiciary. It is instead for Congress to reassert its constitutional authority and claw back the power it should have never given (and may not have been constitutionally allowed to give) to the White House.
Jessica Levinson is a Loyola Law School professor and MSNBC columnist. 
