The US and the indeed the world is grappling with the impact of the new tariffs from President Trump. A tariff is a tax, or a duty levied on foreign imports. There is a serious argument that the President lacks the power to impose them. Congress has the power to “collect taxes, duties, … [and] to regulate commerce with foreign nations. Article I, Section. 8.
The President claims that a 1977 law that does not mention tariffs gives him the authority to impose these tariffs. The law, IEEPA sec. 1702 authorizes the President to address an “unusual or extraordinary threat” by regulating the importation of property. But it says nothing about imposing duties or tariffs.
There are two serious arguments that the tariffs are unlawful. The first is that the IEEPA is simply not a law that authorized the President to impose tariffs. The idea that President Trump is responding to an unusual threat is belied by his own statements that for decades Americans have been getting “ripped off” by foreign tariffs. There is nothing unusual he is responding to. Moreover, the law clearly contemplates keeping out dangerous materials — it feels very different from a law that would authorize the President to impose tariffs to regulate trade in the ordinary course of business.
Even if the President is reading the law correctly however it is doubtful that under current constitutional law, he can decide to have such a dramatic impact on the US economy with a stroke of his pen without getting a bill through Congress that specifically allows him to do that.
Conservative legal scholars have been developing a doctrine called the “major question doctrine”, that prevents the President or executive branch agencies from issuing rules that affect the economy broadly. Under that doctrine, the Supreme Court struck down, for instance, the Biden Administration’s effort to impose the taking of vaccines on employees of government contractors during COVID.
The major question doctrine addresses the longstanding concern by conservatives that Presidents and their appointees are usurping the authority of Congress by issuing rules that could never be passed by the House and the Senate for lack of broad-based political support. One area constitutional scholars expect this doctrine to be used regularly is to strike down environmental regulations that impact energy and chemical industries.
The major question doctrine is a sub part of the separation of powers doctrine. Especially when the Government issues rules that affect a large number of Americans and have broad economic ramifications, the separation of powers requires that Congress specifically put into the law exactly what the new rules should be.
As Professor Steve Vladek of Georgetown University writes this morning, on his “One First” newsletter, “even if Congress had delegated to the President the right to issue tariffs, the incredibly broad and dramatic tariffs imposed by President Trump last Friday seem to go far beyond the delegation power of Congress. That is, only Congress can choose under the major question doctrine to impose such significant tariffs as to countries all over the world”.
I expect serious legal challenges to be made by business groups, and the outcome is uncertain. But keep an eye out!