President Donald Trump’s sweeping tariffs may not be long for this world. An 11-judge en banc panel at the U.S. Court of Appeals for the Federal Circuit appeared deeply skeptical Thursday of the Trump administration’s argument that it can use a congressional statute, the International Emergency Economic Powers Act (IEEPA), to impose expansive tariffs.
You might be asking why we’re talking about a statute when the Constitution grants Congress, not the president, the power to regulate interstate commerce, including the imposition of tariffs. It’s because for almost a century, Congress has regularly ceded its authority to the president.
The Constitution grants Congress, not the president, the power to regulate interstate commerce, including the imposition of tariffs.
It began in 1934, in the middle of the Great Depression, when Congress passed the Reciprocal Trade Agreement Act, which gave the president the authority to unilaterally negotiate trade agreements and make certain changes to domestic tariff rates.
Over the next few decades, Congress continued to cede more of its authority to the executive branch. In 1977, Congress passed the IEEPA, which has never been used by a president to impose tariffs. In fact, the IEEPA authorizes the president to impose sanctions when there is an “unusual and extraordinary threat.”
Challengers in two separate cases, one brought by small businesses and another brought by 12 Democratic-led states, sued the Trump administration, arguing that the IEEPA doesn’t give Trump the power to unilaterally impose these tariffs.
The question of whether Congress gave the president the power to impose tariffs via the IEEPA brings up important issues related to the nondelegation doctrine and the major questions doctrine. The nondelegation doctrine dictates that Congress cannot give too much of its constitutionally granted duties to the executive branch. It’s not clear, based on the nondelegation doctrine, that Congress could have given Trump the power to impose tariffs under the IEEPA even if it wanted to. But it doesn’t appear that it wanted to. There’s a good argument to be made here that when Congress passed the IEEPA, it meant to provide the president with the power to impose sanctions, like asset freezes, to respond to national economic emergencies. This is quite different from the power to restructure domestic economic policy by imposing tariffs.
Under the major questions doctrine, the Supreme Court has said that Congress must provide crystal-clear authorization before giving an executive agency the power to decide an issue of national significance. Here, challengers have a compelling argument that when Congress passed the IEEPA, it did not give the president the specific guidance needed to unilaterally impose tariffs.
It is also rational to conclude that a structural trade imbalance does not qualify, as the Trump administration claims it does, as an “unusual and extraordinary threat.” The challengers have persuasively argued that a chronic trade deficit is not the same as a national economic emergency. For all these reasons, this may be the Trump administration’s second time losing its argument that it has the power under the IEEPA to impose these tariffs. At the end of May, the U.S. Court of International Trade held, among other things, that the IEEPA did not “delegate an unbounded tariff authority to the President.” The Trump administration appealed that decision. It is also rational to conclude that a structural trade imbalance does not qualify as an “unusual and extraordinary threat.” The 11-member en banc panel considering this case appeared particularly concerned about the government’s maximalist view of executive authority. Again, the Trump administration faces specific hurdles here. To win, it has to convince the judges that Congress properly delegated its power and gave the specific guidance necessary to allow not just this president, but any president, the power to carry out economic policy via the imposition of sweeping tariffs. This case feels destined for the Supreme Court, where a conservative supermajority that has generally been protective of executive power will decide whether that power includes the ability for any president to set economic and international trade policy without a coequal branch. This is not the moment for the courts to undermine constitutional structures. The Constitution gives Congress, not the president, the power to regulate interstate commerce. We should now allow the executive to usurp that or any other power it doesn’t have.
Jessica Levinson is a Loyola Law School professor and MSNBC columnist. 
