TARIFFS AND THE EMERGENCY POWERS OF THE PRESIDENT—AN UNLIKELY CHALLENGE EMERGES
INTRODUCTION
On Friday, April 4th, in the Northern District of Florida, attorneys of the New Civil Liberties Alliance (NCLA) filed a challenge to President Trump’s Executive Orders imposing across-the-board tariffs on our three largest trading partners—China, Mexico, and Canada. An examination of the Executive Orders establishes that the enabling authority for these historic actions was based upon the International Emergency Economic Powers Act of 1977 (“IEEPA”). The NCLA is a non-profit public interest law firm that is seen as conservative in ideology, and it has challenged what it considers the overreach of the administrative state—the unelected “Fourth Branch” of government that combines executive and legislative functions without accountability to the people. This challenge of Executive authority is a new frontier for it. The NCLA was instrumental in challenging and successfully persuading the Supreme Court to overturn Chevron deference and ATF “bump stock” rules. This latest challenge on behalf of a Florida-based business that relies heavily on Chinese imports alleges that the President’s actions in imposing these broad tariffs implicate the “Major Questions” doctrine, intrude upon Congress’ “sole” authority to regulate foreign commerce under Article I, Section 8 of the Constitution, and, finally, is not authorized by the text of the IEEPA, which does not explicitly grant tariff imposition authority. This challenge will again test the “political question” limits on justiciability as well as Executive authority in an area with wide-ranging effects on the economy. The suit may be viewed at nclalegal.org.
CONGRESS ITSELF HAS ACKNOWLEDGED THE BROAD NATURE OF PRESIDENTIAL AUTHORITY PURSUANT TO THE IEEPA
The Executive Orders imposing the tariffs in February, March, and April specifically cite as the foundation for the exercise of Presidential authority an “emergency,” sounding in the case of China, “ the failure of the Government of the People’s Republic of China (PRC) to act to blunt the sustained influx of synthetic opioids, including fentanyl, flowing from the PRC to the United States,” constituting an “extraordinary threat, which has its source in substantial part outside the United States, to the national security, foreign policy, and economy of the United States…” This tracks the broad language of 50 U.S.C. Sections 1701 and 1702 of the IEEPA. However, the suit filed by the NCLA points out that in numerous public statements, the President and his advisors have stated that the basis of the rolling tariffs is China’s manipulations of currency and lowering the trade deficit with the PRC and raising revenue. Would any court wade into the Proclamation to divine the true intent or defer to the Executive Order as a political question? I believe Congress has acknowledged the broad nature of the IEEPA, which states in relevant part at 50 U.S.C. 1702 that the President may “regulate”… “importation or exportation of, dealing in, or exercising any right, power, or privilege with respect to, or transactions involving, any property in which any foreign country …has any interest.” The absence of specific authority regarding the traditional tariff powers of Congress to “regulate Commerce” is cited as a lack of authority in the lawsuit. In addition, the suit alleges that the only true delegation of authority to the President lies in the Trade Act of 1974 and the various “Customs Duties” Acts at Title 19 of the United States Code. At Congress.gov, the National Emergency Powers of the President in this area is examined as follows:
“Even though it does not specifically mention tariffs, the International Emergency Economic Powers Act of 1977 (IEEPA) gives the President extensive economic powers in a national emergency declared under the National Emergencies Act (NEA), including to ‘regulate’ or ‘prohibit’ imports. Presidents have invoked IEEPA on many occasions to impose sanctions such as asset freezes and prohibitions on unlicensed transactions directed to foreign countries, entities, and individuals, although no President had used IEEPA to impose tariffs until this year. In February 2025, President Trump invoked IEEPA as a basis to impose tariffs on imports from Canada, Mexico, and the PRC, although only the tariffs on PRC imports have gone into effect as of the time of this writing. In his executive orders invoking IEEPA, President Trump proclaimed national emergencies relating to, inter alia, illegal immigration and illicit drugs.
The President may use IEEPA’s authorities ‘to deal with an unusual and extraordinary threat, which has its source in whole or substantial part outside the United States, to the national security, foreign policy, or economy of the United States, if the President declares a national emergency with respect to such threat.’ The NEA authorizes the President to declare a national emergency and requires that ‘such proclamation shall immediately be transmitted to the Congress and published in the Federal Register.’
Courts typically give some deference to the President’s determination that there exists an unusual and extraordinary threat under IEEPA. One federal court, noting the government’s interest in national security, stated that courts ‘owe unique deference to the executive branch’s determination that we face ‘an unusual and extraordinary threat to the national security’ of the United States.’ Another court, faced with a challenge to an IEEPA emergency declaration regarding access of foreign parties to U.S. goods and technology, opined that the court ‘cannot question the President’s political decision to deem this threat ‘unusual and extraordinary.’ Some scholars argue that IEEPA and Section 232, by empowering the President to impose tariffs in response to purported national security threats, have eroded the distinction between Congress’s constitutional power over tariffs and foreign commerce and the President’s national security and foreign affairs powers, ceding too much control over tariffs to the President“.
RECOGNIZING THIS UNSETTLED AREA WHEREIN THE PRESIDENTS’ PROCLAMATIONS AND DETERMINATIONS MAY BE GIVEN SIGNIFICANT WEIGHT, LEGISLATION AMENDING THE IEEPA HAS BEEN INTRODUCED
If Congress determines to put a halt to what it and some segments of the public see as a major alteration of the structure of the economy, it may amend the IEEPA as has been proposed by the introduction of legislation such as the “Prevent Tariff Abuse Act” of 2025, 119 H.R. 407, which specifically removes any authority of the President to impose tariffs or duties even in an emergency. It may also resolve, as we saw in the Senate last week, to declare that an emergency as contemplated by the statutes and the events does NOT constitute an emergency in the sense originally conceived. Given the current makeup of the House, it seems unlikely that either route will see passage. In any event, we see again the tension present in the separation of powers and the current President’s determination to see Executive authority expanded to its limits to repair the damage of the previous administration in trade, border security, and national security.
DOES THE TARIFF REGIME IMPOSED BY EXECUTIVE ORDERS VIOLATE THE VESTING CLAUSE AND THE MAJOR QUESTIONS DOCTRINE?
Article I, Section 1 of the Constitution states that “ All legislative powers shall be vested in a Congress of the United States….” In addition, Article I, Section 8, states that “ The Congress shall have Power To lay and collect Taxes, Duties, Imposts, and Excises.” Courts have declared through history that Congress “may not transfer to another branch powers that are strictly and exclusively legislative,” and these limitations are essential to the system of separation of powers ordained by the Constitution. Herein is the controversy: has the President exceeded his authority in imposing tariffs, arguably outside of a true “emergency,” and are tariffs themselves authorized in an “emergency” pursuant to the IEEPA at all? This nondelegation doctrine has been the basis for the Supreme Court to strike down actions of agencies that have exercised what is purely legislative power. Regarding the issue of “Major Questions”, the Supreme Court has been skeptical of the use of obscure and rarely used statutes to regulate “a significant portion of the American economy.” We saw this when President Obama tasked the EPA with crafting a Clean Power Plan, which would alter the coal industry without clear Congressional authorization, or when Biden sought to use the Department of Education to forgive billions in student loans. Certainly, this issue of tariffs has unquestionably impacted the economy and markets in the short term; however, it is presumed that Presidential authority will have wide-ranging effects in a so-called “emergency.” The Office of the President has significant vested authority as a unitary branch and is not an “agency.” The question is significant, and the courts will have to intervene in the absence of any Congressional action to either end the emergency or to amend the enabling statute, which is vague in its direction.
CONCLUSION
The legal challenge is a serious one, and so is the issue presented. Is the contradiction between the Executive orders and the publicly stated reasons for the action enough to overcome the political question doctrine that may limit judicial review? Do courts defer to any declared emergency? This is a dangerous area. Suppose President (insert Squad Member here) declares a gun violence emergency or a climate emergency? Didn’t COVID teach us about emergency powers and their intrusions on our freedoms and choices? The President is well-intentioned in seeing to the abuses of the previous administration and the threats that prey on our commerce and economy. However, should we err on the side of clear Constitutional design and limit such declarations to true, sudden, and unexpected threats? The courts will continue to rule for the ages, and I cannot fault this President for seeking a reinvigoration of Executive power to meet modern and unprecedented challenges. We must proceed with clarity and caution.
Mike Imprevento
April 7th, 2025
