In a recent report, the Congressional Research Service examines the president’s use of statutory tariff authorities and what constraints there may be on such authorities. The report comes amid growing concerns in some quarters about President Trump’s use of these authorities and what steps Congress could take to limit them.
The U.S. Constitution grants Congress the power to regulate foreign commerce, impose tariffs, and collect revenue. However, Congress has long enacted laws delegating to the president authority to adjust tariff rates in certain circumstances. Among such laws currently in effect are Section 232 of the Trade Expansion Act of 1962; Sections 122, 201, and 301 of the Trade Act of 1974; Section 338 of the Tariff Act of 1930; and the International Emergency Economic Powers Act of 1977.
Federal courts have generally upheld these laws against constitutional challenges claiming that they impermissibly delegated Congress’s power over tariffs, the report states. Supreme Court decisions on this issue “have become landmarks in the development of a broader ‘nondelegation doctrine’ concerning the extent to which Congress may lawfully delegate authority to the executive branch.” For example, a 1928 ruling “set a key precedent” that Congress may delegate tariff and other authorities as long as it sets forth an “intelligible principle” to govern the resulting actions of the executive branch, and the Court has not struck down laws on any subject as violating that decision in 90 years.
The courts have also long applied a deferential standard of review to questions regarding the scope of the president’s statutory tariff authorities, the report states. For example, a 1985 decision held that for a court to interpose in “international trade controversies” there has to be “a clear misconstruction of the governing statute, a significant procedural violation, or action outside the delegated authority.” In recent years the Court of Appeals for the Federal Circuit has applied this standard in upholding the president’s imposition of Section 201 and Section 232 tariffs.
However, some are now questioning whether the courts must revisit this standard in light of recent Supreme Court decisions (e.g., Loper Bright Enterprises v. Raimondo) that give less deference to the executive branch to interpret its own statutory authorities. For example, the report states, five current justices have indicated that they would be willing to reconsider the Court’s approach to the nondelegation doctrine, and in November 2024 the Court agreed to hear a case (Consumers’ Research v. Federal Communications Commission) that may provide an opportunity for such a reappraisal. In addition, ongoing litigation challenging the Office of the U.S. Trade Representative’s authority to impose Section 301 tariffs on goods imported from China beyond an initial action may give the courts occasion to reevaluate the deferential standard established in the 1985 decision. “If the Court were to adopt a stricter view of permissible delegations,” the report notes, “some of the president’s current tariff authorities might be subjected to new constitutional challenges.”
At the same time, the report states, the courts may be less willing to question deference to presidential actions under IEEPA, which allows the president to regulate or prohibit imports and employ other economic powers in response to a declared national emergency. This was the authority cited by President Trump for 25 percent tariffs on imports from Canada and Mexico and 20 percent tariffs on imports from China. While IEEPA had not previously been used to impose tariffs, the report states that courts have typically been loath to question a president’s determination of what constitutes a national emergency, and “the possible lack of judicially enforceable standards” on this issue “may give the president practically unlimited authority to impose tariffs.”
In the end, the report concludes, “Congress is ultimately responsible for determining what tariff authorities the president should have and what limitations they place on presidential discretion.” Legislation explicitly imposing such conditions (e.g., by amending IEEPA to prohibit the imposition of tariffs or requiring congressional approval of executive branch tariff actions) has been introduced in recent years but has yet to generate much forward momentum.
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