Emergency Powers or Power Grab? The Constitutional Question Surrounding Trump’s Tariffs

By Hannah Fisher '26

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President Trump’s tariffs are causing alarming economic and legal issues. The stock market has plummeted since Trump’s inauguration due to economic uncertainty. (1) Many economists are warning that Trump’s tariffs will cause high domestic prices and trigger trade wars. (2) There are also rising constitutional concerns regarding President Trump's unprecedented use of economic emergency powers to operate functionally independent of Congress. (3)

On January 20th, 2025, in Proclamation 10886, President Trump declared a national emergency at the southern border under the National Emergency Act (NEA). (4) The national emergency proclamation posited that the southern border was being flooded with criminal migrants and drugs, which constituted a threat to national security. Declaring a national emergency gives Trump grounds to invoke the International Emergency Economic Powers Act (IEEPA) to impose tariffs on China, Mexico, and Canada. (5) According to a fact sheet from the Trump administration, the flow of illegal drugs such as fentanyl into the United States is facilitated through illicit distribution networks through China, Mexico, and Canada. (6) DEA intelligence reports have corroborated the Trump administration’s claim, with China being the primary source of fentanyl substances, which are then smuggled through Mexico and Canada into the United States. (7)

Under IEEPA, Trump has the executive power to enact economic actions in response to a national emergency. The IEEPA statute, as it stands under 50 U.S.C. § 1702, states: “At the times and to the extent specified in section 1701 of this title, the President may, under such regulations as he may prescribe, by means of instructions, licenses, or otherwise- (A) investigate, regulate, or prohibit- (i) any transactions in foreign exchange.” (8) Since tariffs (taxes levied on imports from other countries) are a form of trade regulation, Trump is justified in invoking the IEEPA to enforce tariffs on foreign countries. (9) Under Article I, Section 8 of the U.S. Constitution, otherwise known as the Commerce Clause, Congress possesses the power to regulate foreign commerce. (10)  However, Congress has since ceded power through emergency executive powers, allowing the President to conduct trade policy under the conditions set by the IEEPA. President Trump is the first president to use the IEEPA to impose tariffs since its creation in 1977, which has caused concerns as to whether the statute is being abused to curb Congressional power. 

There was a similar circumstance in 1971 when  President Richard Nixon issued Proclamation 4074, which declared a national emergency and levied a 10% tariff on all imports into the US. (11)  The Trading with the Enemy Act (TWEA), the predecessor of the IEEPA, allowed Nixon to impose the tariff under a national emergency. (12) The purpose of the 1971 tariff was to prevent a global monetary crisis and cause other countries to adjust the value of their currencies, which led to the current floating exchange rate system we use today. 

Nixon and Trump are the only modern Presidents who have utilized emergency powers to impose tariffs when tackling domestic issues. While President Nixon’s use of TWEA draws similarities to President Trump’s use of the IEEPA, there are striking differences to highlight. President Nixon’s tariff was not directed at any specific country and was levied equally against all imports. On the other hand, President Trump has targeted specific countries, namely China, Mexico, and Canada. Another key difference is the motives behind their executive order(s). President Nixon was motivated by the impending monetary collapse due to an overvalued dollar. President Trump’s stated motive is national security, however, it is no secret that the Trump administration’s ulterior motive is to enact protectionist trade policies to increase domestic manufacturing and reduce the nearly $1 trillion trade deficit. During President Trump’s address to a joint session of Congress on March 4th, 2025, Trump further explained these motives, claiming his tariffs would help reduce the trade deficit,  support domestic manufacturing, balance the budget, impose “fairness,” and retaliate against other countries. (13) Thus, Trump used the IEEPA to bypass Congress to conduct his trade policy—arguably outside the intended purpose of the national emergency. This ignites possible challenges by the courts regarding whether or not Trump’s actions are crossing the boundaries of his presidential powers into the enumerated powers of Congress. 

President Nixon’s use of TWEA to enact tariffs was contested in the courts, arguably establishing the precedent that permits Trump to leverage the IEEPA in his imposition of tariffs. The United States Court of Customs and Patent Appeals held that Nixon did not violate the Constitution by using TWEA to levy tariffs. In United States v. Yoshida Intern., Inc., “Congress, by delegating to the President in § 5(b) the power to regulate imports within the national emergency powers standard, has not succeeded in abdicating its constitutional power to regulate foreign commerce. It remains the ultimate decision maker and the fundamental reservoir of power to regulate commerce. It may recall or limit the delegated emergency power at any time.” (14) This decision indicates that because Congress approved TWEA and has the power to change the law, President Nixon’s actions were permitted by law. In Alcan Sales, Div. of Alcan Aluminum Corp. v. U.S. (1981), the court also held the same: “No conclusion can be reached therefore by this court other than the decisions of our appellate court in the case of United States v. Yoshida International, supra, and in the case of Alcan Sales v. United States, supra, are, in fact, stare decisis of the issues herein.” (15)  

The TWEA was replaced by the NEA and IEEPA in 1977 because the TWEA gave the executive extensive emergency powers without accessible mechanisms for Congress to review executive actions. (16)  The IEEPA made it easier to curb executive overreach compared to the TWEA. Now, Congressional recourse under the IEEPA to stop the tariffs includes terminating the national emergency Trump issued under the NEA through a joint resolution of disapproval or amending the IEEPA to restrict the president's tariff implementation. (17) However, the Republican-controlled House of Representatives is blocking voting on resolutions to challenge Trump’s tariffs. (18) Unless some House Republicans take action against the tariffs, they will remain unchallenged by Congress. Additionally, because TWEA was decided to be constitutional by the courts, the IEEPA, which curbs executive power even more than the TWEA, will also be constitutional in its use of imposing tariffs due to precedent. This leaves the tariffs under the full executive purview without practical future challenges from the courts and Congress. 

President Trump’s actions early in his second term were unprecedented in using executive emergency powers. Trump’s America First goals are long-term in nature, as the development of domestic industries, the dismantling of the fentanyl trafficking routes, and balancing trade between nations all take time. While Congress has the power to end the tariffs, with a Republican House of Representatives, Trump’s policy will likely remain in effect. Will Trump be able to overhaul the world economy like Nixon did in the 1970s? Or will his second term be stained by economic collapse? Only time will tell. 

Endnotes

1. Joe Rennison, “Stocks Sink as Trump’s Tariff Threats Weigh on Confidence,” The New York Times, March 31, 2025, https://www.nytimes.com/2025/03/30/business/stocks-nikkei-sp500.html.

2. Cody Mello-Klein, “What Are Tariffs? Economists Explain the Reality behind Trump’s Policy – and Why They Think It Would Be ‘Catastrophic,’” Northeastern Global News, November 18, 2024, https://news.northeastern.edu/2024/11/15/what-are-tariffs-trump-policy/.

3. Gary Clyde Hufbauer, “A Better Legal Argument against Trump’s Tariffs | Piie,” Peterson Institute for International Economics, March 11, 2025, https://www.piie.com/blogs/realtime-economics/2025/better-legal-argument-against-trumps-tariffs.

4. Donald J. Trump (2nd Term), Proclamation 10886—Declaring a National Emergency at the Southern Border of the United States Online by Gerhard Peters and John T. Woolley, The American Presidency Project https://www.presidency.ucsb.edu/node/375952 

5. The White House.“Fact Sheet: President Donald J. Trump Imposes Tariffs on Imports from Canada, Mexico and China,” The White House, February 2, 2025, https://www.whitehouse.gov/fact-sheets/2025/02/fact-sheet-president-donald-j-trump-imposes-tariffs-on-imports-from-canada-mexico-and-china/. 

6. Ibid. 

7. Drug Enforcement Agency, Fentanyl Flow to the United States. DEA-DCT-DIR-008-20, January 2020. https://www.dea.gov/sites/default/files/2020-03/DEA_GOV_DIR-008-20%20Fentanyl%20Flow%20in%20the%20United%20States_0.pdf

8. 50 U.S.C. 1601 et seq. (International Emergency Powers Act). 

9. Anshu Siripurapu and Noah Berman, “What Are Tariffs?,” Council on Foreign Relations, April 1, 2025, https://www.cfr.org/backgrounder/what-are-tariffs.

10. U.S. Const. art. I, § 8.

11. Congress.gov. "The International Emergency Economic Powers Act (IEEPA), the National Emergencies Act (NEA), and Tariffs: Historical Background and Key Issues." April 3, 2025. https://www.congress.gov/crs-product/IN11129.

12. Ibid. 

13. Michelle L. Price, “How Trump Justifies His Tariffs - from Budget Balancing to Protecting ‘The Soul’ of America,” AP News, March 6, 2025, https://apnews.com/article/trump-tariff-justifications-50f0b4416234e63c7136eaa5c5f96759.

14. United States v. Yoshida International, Inc., 526 F.2d 560 (C.C.P.A. 1975). CaseText, https://casetext.com/case/united-states-v-yoshida-intern-inc 

15. Alcan Sales, Div. of Alcan Aluminum Corp. v. United States, 693 F.2d 1089 (Fed. Cir. 1982). Justia Law, https://law.justia.com/cases/federal/appellate-courts/F2/693/1089/230494/ 

16. Congress.gov. "The International Emergency Economic Powers Act: Origins, Evolution, and Use." April 3, 2025. https://www.congress.gov/crs-product/R45618.

17. Ibid. 

18. Bo Erickson, “House Republicans Block Congress’ Ability to Challenge Trump Tariffs | Reuters,” Reuters, March 11, 2025, https://www.reuters.com/world/us/house-republicans-block-congress-ability-challenge-trump-tariffs-2025-03-11/.