The president doesn’t have the power to set tariffs—Congress does
Last week, President Donald Trump announced that his administration would be slapping tariffs on an enormous share of the things Americans buy. Tariffs have a long history in the United States. But the president does not possess the constitutional authority to create tariffs unilaterally. This power is vested solely in Congress and cannot be delegated away.
The constitutional basis for tariff authority
Article I, Section 8 of the Constitution explicitly grants Congress the power “to lay and collect taxes, duties, imposts, and excises.” Tariffs, being a form of tax on imports, fall squarely within this provision. Therefore, any effort to impose or modify them must come from the legislative branch.
Despite this clear constitutional mandate, various statutes—such as the Trade Expansion Act of 1962—have been interpreted to allow presidential tariff actions under the guise of national security or economic emergency. However, these laws do not alter the fundamental constitutional structure: Congress cannot relinquish its core powers, and the executive branch cannot assume them without a constitutional amendment. Taxes and tariffs are indisputably a core power of the legislative, not the executive, branch.
The misuse of emergency powers in trade policy
In recent years, presidents have invoked emergency powers and stretched statutory language to impose tariffs without direct congressional approval.
In 2018, President Trump used Section 232 of the Trade Expansion Act to justify tariffs on steel (25%) and aluminum (10%) imports. The “national security” justification was widely disputed—many of the targeted countries, including Canada, the EU, and Japan, are U.S. allies, not security threats. Even members of Trump’s own party questioned whether Section 232 was being abused.
And lest you think presidential overreach on tariffs is a partisan problem, President Biden kept many of President Trump’s constitutionally suspect tariffs in place and even expanded some. Presidents misusing tariff power is a bipartisan tradition.
In February, President Trump declared an emergency over illegal immigration and illicit importation of fentanyl as a justification to impose tariffs on virtually all imports from Mexico (25%), Canada (25%), and China (10%). Last week—declaring America’s trade imbalances an emergency and citing (among other laws) the International Emergency Economic Powers Act (IEEPA)—the Trump administration announced sweeping tariffs ranging from 10% to 50% on countless products, parts, and components that come into the country.
These marked the first time a president has invoked IEEPA to impose or modify tariffs. But the law does not authorize the president to make tariff policy.
Indeed, IEEPA never mentions tariffs, duties, or any other synonym for tariffs. The law was designed to allow presidents to impose economic sanctions on nations that pose a threat to the U.S. Its purpose was not to impose tariffs to effect some change in their trade policy. It gives the president the power to “investigate, regulate, or prohibit any transactions in foreign exchange” in response to a national emergency. Tariffs do not fall under any of these enumerated powers.
Some suggest that the law’s delegation of the power to “regulate” international trade can be read to authorize tariffs. But that isn’t so. First, if Congress wanted to impose a tariff, it knows how to do so explicitly—as it has done in many other statutes but did not do here. Second, Article I of the Constitution distinguishes between the power to impose tariffs (found in Art. I, Section 8, clause 1) and the authority to regulate commerce (found in Art. I, Section 8, clause 3). Third, as noted above, in the nearly 50 years since its enactment, no president has relied on IEEPA to impose tariffs until now—though presidents invoked a similarly worded stature to impose tariffs in the past, IEEPA was passed to restrain the powers the president had under that law.
But even if all of this wasn’t true and Congress had intended to allow the president to impose tariffs on imports, the law would be an unconstitutional, impermissibly broad delegation of legislative power to the president. It does not provide any guidance for what constitutes a threat that is unusual or extraordinary enough to justify a tariff. For the February tariffs, for example, the president has cited immigration and fentanyl as the emergencies, but the tariffs apply to everything from avocados and coffee to pet food and nails. And the most recent round of tariffs purports to address trade deficits with other countries but is applied to imports from countries with which we have a trade surplus.
The overreach of these tariffs not only defies constitutional limits but also harms American businesses and consumers by increasing costs and provoking countermeasures from trading partners. Even temporary tariffs can cause chaos in markets and make future planning difficult for everyone.
Congress must reassert its authority
The Constitution rightly reserves to Congress the power to impose tariffs. A policy that will affect the entire nation should come from the branch of government that is most representative of the entire nation.
When Congress delegates its constitutional authority to the president—especially on critical issues like tariffs—it undermines the separation of powers and allows unchecked executive action. This not only erodes the democratic process but also creates policy instability, as each president can unilaterally impose or revoke tariffs based on political motives rather than consistent, legislatively approved trade policy.
Efforts to curtail executive overreach in trade policy have been initiated but remain insufficient. Some members of Congress have advocated for reforms, such as requiring legislative approval before “emergency” tariffs can go into effect. But until Congress acts, presidents will continue to stretch their authority beyond constitutional limits.
Have you paid unconstitutional tariffs? Let’s fight back.
These unconstitutional tariffs have real-world impacts—businesses forced to pay higher prices, consumers facing increased costs, and industries suffering from retaliatory measures by foreign governments. If you or your business have been compelled to pay these tariffs, we want to hear from you.
We’re looking individuals and businesses who want to fight back against these unconstitutional tariffs. We represent Americans who are harmed by government overreach for free. Contact us if you’re interested in taking legal action to stop this overreach and restore constitutional trade policy.
Want to learn more? Check out PLF attorney Molly Nixon on the Charles C. W. Cooke Podcast:
