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Noah Feldman is a Bloomberg Opinion columnist, professor of law at Harvard University, and an author.
President-elect Donald Trump reportedly is considering declaring a national economic emergency to give him legal cover to impose tariffs. Wait, you say. There is no national economic emergency. Surely, Trump would be breaking the law if he declared a nonexistent emergency to give himself more power.
If only it were so simple. Under the International Economic Emergency Powers Act (IEEPA), the president not only has the power to take certain actions when a national economic emergency exists but also the authority to declare such an emergency. Yes, you read that right. The person who decides when the president may deploy the IEEPA’s emergency powers is the president.
If you want to blame someone for this preposterous situation, blame Congress, which enacted the law in 1977.
Since the law was passed, presidents have declared at least 67 emergencies. As of 2022, the last time the nonpartisan Congressional Research Service reported on the subject, 37 of those emergencies were still legally in force, and many have lasted as long as a decade. The first emergency declared under the law, which followed the taking of American hostages by Iranian revolutionaries in 1979, is still in effect.
So, Congress knows that presidents have enormous leeway in declaring an emergency. However, lawmakers have taken no steps to rein in that power, even after Trump, in his first presidency, threatened to use the law to impose significant tariffs on Mexico to pressure it to reduce illegal immigration across the border.
Under the IEEPA, there is only one express way to reverse a presidential declaration of national emergency: Congress can enact a concurrent resolution contradicting the presidential determination of the emergency. Congress has never done so.
This history of congressional authorization and subsequent inaction matters because it would be front and center in any court-based challenge to Trump’s invocation of the law. To win such a challenge, a plaintiff would almost certainly have to convince a federal court — and ultimately, the Supreme Court — that Trump had exceeded the authority delegated to him by Congress under the law.
It’s a sure bet that courts would be loath to second-guess the president. But that’s not all. Courts would look to the past implementation of the IEEPA and see that Trump’s actions aren’t so wildly outside precedent as to make them seem blatantly unlawful.
Indeed, no court has ever reversed a presidential determination of national emergency under the IEEPA. The only court case even slightly on point, US v. Yoshida International, involved a predecessor law, the Trading with the Enemy Act. In 1971, President Richard Nixon invoked that law to impose a surcharge duty against zippers imported from Japan. The U.S. Court of Customs and Patent Appeals (which no longer exists, having been folded into the U.S. Court of Appeals for the Federal Circuit) upheld the surcharge as within the president’s authority. The declared emergency was a “serious balance of payments deficit.”
There is one outside-the-box argument that a challenger could make to Trump’s IEEPA invocation. Hoping to take advantage of the conservative Supreme Court’s interest in limiting Congress’ power to delegate authority to the executive branch, someone could argue that the IEEPA violates the Constitution because Congress, not the president, has the fundamental authority to impose tariffs. Under existing constitutional rules, Congress almost certainly has the power to delegate this authority subject to some principle of limitation. The idea would be to get the hardcore conservatives to reinvigorate what is called the non-delegation doctrine, which identifies core powers of Congress and says that they cannot be delegated to the executive.
The Supreme Court is currently considering a pair of cases involving non-delegation doctrine. If the court’s conservatives issue a revolutionary decision in that case, it could conceivably put some wind in the sails of a non-delegation argument against the IEEPA. However, even that seems like a bit of a reach since the court’s concern appears to be primarily about congressional delegation to administrative agencies, whereas the IEEPA delegates powers directly to the president.
The upshot is that Trump can probably impose tariffs under the IEEPA and get away with it. For that, we have ourselves to blame. Congress is, after all, representative of the people.
In practice, a legal challenge to Trump’s authority would require judges, and ultimately the Supreme Court, to make new law to limit presidential power under the act. That outcome is extremely unlikely.
