Tariff Orders Prompt Challenges to Presidential Authority and Congressional Delegation

In February 2025, President Trump began issuing executive orders and taking other presidential actions to impose tariffs on imports, purporting to rely for authority on the International Emergency Economic Powers Act (IEEPA). That statute grants the president certain powers “to deal with an unusual and extraordinary threat with respect to” a declared national emergency.

The first round of IEEPA-based tariffs applied to imports from Mexico, Canada, and China, ostensibly to deal with declared national emergencies related to illegal immigration and illicit drugs. In April, the President declared a different national emergency regarding a “lack of reciprocity in our bilateral trade relationships,” “as indicated by large and persistent annual U.S. goods trade deficits.” He then imposed an initial across-the-board tariff on imports, and ordered additional country-specific tariff rates to follow a few days later. Other presidential actions have exempted specific products from the tariffs, which themselves have been variously paused, raised, and lowered over the past four months.

Numerous parties—including several states—have filed lawsuits challenging the tariffs. Pacific Legal Foundation filed Princess Awesome, LLC v. U.S. Customs & Border Protection in the U.S. Court of International Trade last month on behalf of eleven plaintiffs, some of whom have already paid the challenged tariffs. Like every other case brought so far, we argue that IEEPA—while granting the President many tools—does not grant the President the power to impose tariffs. IEEPA does include the power to investigate, block, prohibit, or regulate the importation of any property in which a foreign country or national has any interest to deal with a declared national emergency. But unlike the many other laws in which Congress explicitly authorizes the president to impose tariffs—typically after investigations and subject to other limits—IEEPA does not use the word “tariff,” “duty,” or any similar term. Historical executive branch practice also bolsters the point. IEEPA was enacted in 1977, but it had never been used to impose tariffs before this year. (A predecessor statute was used to uphold tariffs once in its own decades-long history, but we explained in our summary judgment brief why that precedent provides little support here.)

We also argue that the purported justifications for the tariffs do not constitute “unusual and extraordinary” threats as required by the statute. Indeed, the President’s orders themselves make that case, purporting to address a “sustained influx of synthetic opioids” and “persistent annual U.S. goods trade deficits” (emphasis added). While these may well be serious policy concerns, it strains credulity to label them unusual or extraordinary and chafes against the understanding of the IEEPA-enacting Congress, which recognized that “emergencies are by their nature rare and brief, and are not to be equated with normal ongoing problems.”

Finally, we argue that if IEEPA does authorize tariffs and the “unusual and extraordinary” nature of the threat is not justiciable, the law itself unconstitutionally transfers Congress’s legislative power to the President and is therefore invalid. Article I of the Constitution vests in Congress “all legislative Powers herein granted,” and first among those is the power to lay taxes, duties, imposts, and excises. The Supreme Court has made clear that the Constitution “permits no delegation of those [legislative] powers,” but it has grappled since shortly after the founding with how to determine when such an impermissible delegation has occurred.

The Court’s reluctance to police the limits of delegation famously led Professor Cass Sunstein to observe that the non-delegation doctrine has had “one good year,” when the Court invalidated first a section and then the entirety of the National Industrial Recovery Act in 1935. But the statute the President is relying on here—if his interpretation is correct—is without parallel in the Court’s precedents. IEEPA includes no identifiable “intelligible principle,” much less one “sufficiently definite and precise to enable Congress, the courts and the public to ascertain whether” the executive branch is acting in compliance with Congress’s will. Indeed, the government has repeatedly asserted in other litigation that a President’s discretion under IEEPA is vast and unfettered. Under the National Emergencies Act (NEA) framework, in place since 1976, a national emergency declaration is also effectively without substantive meaning, functioning only to trigger the availability of additional statutory authorities.

We would be happy to see Congress solve this issue by reclaiming its constitutional power to decide whether to impose tariffs, the amount of the tariffs, and to which products and from which countries they will apply. If Congress agrees with the President’s tariff policies, it should enact those policies into law. The legislative process allows Americans like our clients to voice their thoughts and concerns to their representatives and hold those representatives accountable for the laws they pass. Enacting trade policy through that process, as the Constitution requires, also provides predictability and stability for American businesses and consumers as well as foreign allies and trading partners abroad, since legislation takes time to enact, reflects more durable support, and cannot be unilaterally changed by a new administration.

Better yet, Congress could reform the entire NEA regime. The ability to act unilaterally and quickly may merit giving the executive branch circumscribed authorities to act for a short time during a period of actual emergency, when those actions would preserve Congress’s ability to make a legislative decision about the policies it wants to enact. But our current framework allows the President to assume broad and open-ended legislative powers upon the mere declaration of magic words. Under the government’s reading of the NEA—as yet uncontradicted by courts as far as we are aware—a President could declare a hangnail a national emergency and invoke all of IEEPA’s broad authorities to address it.

When the NEA was first enacted, Congress could terminate a national emergency (and thus the President’s use of all powers invoked in connection with it) by passing a concurrent resolution, which requires a majority of both houses of Congress but not the President’s signature. The NEA was amended in 1985, however, to require a joint resolution after the Supreme Court’s one-house veto decision in INS v. Chadha called that NEA authority into doubt. A joint resolution requires the President’s signature, so since a President will be unlikely to terminate the national emergency he declared, a joint resolution for this purpose effectively requires a veto-proof supermajority of Congress to override an emergency declaration.

The preceding paragraph may sound like procedural jargon, but the upshot of that 1985 amendment is that Congress has given away its legislative power in an “emergency” (as defined by the President alone) with fewer votes than would be required to take it back. Instead of ambition being made to counteract ambition, we now have ambition in the executive branch bolstered by abdication in the legislative branch. Over the long term, that state of affairs will fail to provide the checks and balances demanded by our Constitution’s tripartite structure. In the short term, if Congress does not act, perhaps the non-delegation doctrine will have its next good year.

Disclosure: The authors are attorneys at Pacific Legal Foundation, which, as mentioned, filed a lawsuit challenging the tariffs imposed in purported reliance on IEEPA.