Just as the Clean Air Act did not authorize the Environmental Protection Agency to cap carbon emissions from existing power plants, and just as the 2003 Higher Education Relief Opportunities for Students Act did not authorize the Department of Education to erase hundreds of billions of dollars in college debt, the 1977 International Emergency Economic Powers Act does not authorize the president to reshape the global economic order unilaterally. Federal courts should put a stop to President Donald Trump’s new tariff regime before it inflicts permanent economic damage.
This publication does not support political interference by federal courts, but it does want courts to restrain the executive (and legislature) when either of those two bodies acts outside what is permitted by the Constitution or statute.
When Congress passed the International Emergency Economic Powers Act, it did so in reaction to the Watergate scandal and was trying to reduce the power granted to the president by the Trading With the Enemy Act of 1917. The House report accompanying the legislation states that “emergencies are by their nature rare and brief, and are not to be equated with normal ongoing problems.”
The IEEPA only gives the president power to “investigate, regulate … prevent, or prohibit” the “importation or exportation” of “any property in which a foreign country or foreign national has an interest.”
So, while the Supreme Court held in 1981 that President Jimmy Carter properly invoked the IEEPA when he froze Iranian assets in response to the seizure of the American Embassy in Tehran, more recently, in 2020, federal courts held that Trump improperly used the IEEPA when he tried to ban TikTok. It took a separate act of Congress to accomplish that policy goal (a law that Trump is now refusing to enforce). So, courts have never viewed the IEEPA as a blanket delegation of power, and no president has ever used it to impose a tariff, as Trump is doing now.
The lack of an explicit delegation of power from Congress to the president to impose, raise, and lower tariffs in the IEEPA is particularly relevant in light of the Supreme Court’s emerging “major question” doctrine, which holds that Congress must clearly state its intent to give a president a specific authority to take particularly significant regulatory actions and that the executive branch cannot rely on ambiguous statutes as the basis for extensive policy changes.
In West Virginia v. EPA, the Supreme Court held that the Clean Air Act explicitly granted the EPA power to regulate pollutants, which include carbon emissions, and made clear that the EPA was to prescribe the “best systems of emission reduction,” not “generation-shifting” regulations designed to shut down coal and natural gas power plants. If Congress had meant to give the EPA this power, the Supreme Court reasoned, it would have said so.
Similarly, in Biden v. Nebraska, the Supreme Court held that while the Heroes Act empowered the secretary of education to “waive or modify” student loan provisions during a “national emergency,” former President Joe Biden’s broad debt cancellation, implemented without congressional approval, was far beyond the intended scope of the original law.
Under the IEEPA, Congress clearly intended to give the president power to seize assets and institute sanctions against foreign countries in response to specific incidents, such as the occupation of an American Embassy or the invasion of another country. But there is nothing in it to suggest Congress intended it to give the president unilateral power to remake the entire U.S. economy with the stroke of a pen.
By his own admission, Trump claims his new tariff regime will cause the “biggest reorganization of the global economy since World War II” and bring “hundreds of billions of dollars” in revenue to the Treasury. Unlike West Virginia v. EPA, in which the Supreme Court struck down Biden’s attempt to restructure “a significant portion of the American economy,” Trump’s tariffs are seeking to restructure the entire American economy.
SENATE REPUBLICANS GO WEAK ON SPENDING CUTS
Trump’s order announcing his tariff regime claims that over previous decades, Washington made decisions that “hollow[ed] out our manufacturing base” and “undermined critical supply chains.” But this is not a “rare and brief” circumstance of the sort that the IEEPA was designed to address. Instead, it is a “normal ongoing problem” that deserves a comprehensive legislative response, not a reflexive, almost spasmodic executive order.
Federal courts rightly summoned the courage to stop Biden’s many abuses of executive power. We hope they will do the same with Trump’s tariff overreach.
