How the President Is Misusing Emergency Powers To Impose Worldwide Tariffs
President Donald Trump declared a national emergency last week to address what he described as harmful foreign trade and economic practices. Invoking the International Emergency Economic Powers Act, he announced new, sweeping tariffs — taxes that are paid by U.S. importers and then typically passed on to customers. A baseline 10 percent tariff on goods from almost every country worldwide took effect on Saturday, and higher rates for goods from dozens of countries started on Wednesday.
Leaving aside the economic policy concerns, using an emergency declaration to impose tariffs is a clear abuse of presidential emergency powers. It’s the latest in a long list of overreach and lawlessness by the current administration.
Is this an appropriate use of emergency powers?
No. Emergency powers are designed to let a president respond swiftly to sudden, unforeseen crises that Congress cannot act quickly or flexibly enough to address. Presidents can rely on these powers to create temporary fixes until the crisis passes or Congress has time to act. Emergency powers are not meant to solve long-standing problems, no matter how serious those problems may be. Nor are they intended to give a president the ability to bypass Congress and act as an all-powerful policymaker.
Under the National Emergencies Act, a declaration of national emergency unlocks a menu of 150 statutory powers from which the president can choose. One of the most powerful is the International Emergency Economic Powers Act. That law can only be invoked, however, when the national emergency stems from an “unusual and extraordinary threat” to national security, foreign policy, or the economy. Trump’s invocation of the law in this case rests on the specious premise that our trading relationships with each and every country in the world — including those he has dismissed as nations that “nobody has ever heard of” — pose an “unusual and extraordinary threat” to the United States.
By no stretch of the imagination can long-standing trade relationships be considered an unforeseen emergency. If Trump believes that global tariffs could benefit the United States, he needs to make his case to Congress. Lawmakers can then follow the regular legislative process to decide whether to adopt his plan. That is the proper course of action here — not manufacturing an emergency to push the president’s economic and foreign policy agenda.
Does the International Emergency Economic Powers Act authorize tariffs?
Probably not. Even if there were a legitimate emergency, the president is limited to the powers Congress has conferred. The International Emergency Economic Powers Act was passed to enable the president to impose economic sanctions on hostile foreign actors. It includes a long list of actions the president may take, but the word “tariffs” appears nowhere on that list. No president has ever used this law to impose tariffs before, and there is no mention of tariffs in its legislative history. That makes it safe to assume that Congress never intended for the law to be used in this way.
How have presidents misused these emergency powers in the past?
This is not the first time a president has used emergency declarations to push policy goals despite the lack of a sudden crisis. In his first term, Trump issued an emergency declaration over migration at the U.S.–Mexico border at a time when unlawful border crossings were hovering near a 40-year low. He used the declaration to secure funds for the border wall after Congress had repeatedly refused his funding requests. President Joe Biden, during the Covid-19 pandemic, tried to use emergency powers to forgive student debt — a serious problem for many decades — in the face of congressional inaction.
The International Emergency Economic Powers Act, in particular, has long been used as a routine foreign policy tool rather than a true emergency power. It underlies dozens of sanctions regimes, some of which have been in place for decades. Trump’s imposition of tariffs, however, takes misuse of this law to a new level. Previous sanctions have been targeted at specific governments, countries, or practices (such as international terrorism or cybercrime). Trump’s action imposes penalties on every country in the world.
Could courts stop the president from using emergency powers to impose tariffs?
It’s possible. Courts typically are highly deferential to presidential emergency designations and certain executive branch decisions on foreign policy, and they often conclude that such matters present “political questions” that courts cannot answer. But this deference has its limits. The “political question” doctrine does not preclude courts from stepping in when the president makes an obvious mistake or implements measures that are manifestly unauthorized by law. Those backstops should apply here.
Even if courts are reluctant to probe whether an emergency or “unusual and extraordinary threat” exists, the separate question of whether the International Emergency Economic Powers Act authorizes tariffs is a straightforward one for which no special deference is in order. If courts find that the law does not authorize tariffs, Trump cannot rely on it for that purpose, emergency or not.
Can Congress stop the tariffs imposed by this executive order?
Unfortunately, it is very hard for Congress to block presidential abuses of emergency powers. As originally enacted, the National Emergencies Act allowed Congress to terminate emergency declarations using a “legislative veto” — a law that goes into effect without the president’s signature. In 1983, however, the Supreme Court held that legislative vetoes are unconstitutional. Today, if Congress wants to terminate an emergency declaration, it effectively requires a veto-proof supermajority in both chambers.
Last week, the Senate passed a bill that would terminate the national emergency declaration Trump had previously issued to levy tariffs on imports from Canada. But even if the House were to follow suit (which is unlikely), a simple majority of Congress no longer has the ability under the National Emergencies Act to rein in presidential abuse of emergency powers.
What can be done to stem abuses of presidential emergency powers?
The Brennan Center has proposed a number of reforms to emergency powers. One key proposal is to amend the National Emergencies Act to require emergency declarations to expire after 30 days unless approved by Congress. This would shore up Congress’s role as a check against presidential overreach. The Brennan Center has also proposed reforming the International Emergency Economic Powers Act to curb its potential for abuse — including by prohibiting its use for tariffs.
Of course, enacting these reforms under President Trump will likely be difficult for the same reason it will be difficult to terminate his emergency declarations. But efforts to reform emergency powers garnered extremely broad bipartisan support in both the first Trump administration and the Biden administration. While there are undeniable challenges, the goal is potentially achievable and well worth pursuing.
Elizabeth “Liza” Goitein is senior director of the Brennan Center’s Liberty and National Security Program.
Goitein is a nationally recognized expert on presidential emergency powers, government surveillance, and government secrecy. Her writing has been featured in major newspapers and magazines including the New York Times, the Washington Post, the Wall Street Journal, USA Today, the Los Angeles Times, the Atlantic, and the New Republic, and she has appeared frequently on MSNBC, CNN, and NPR. She has testified on several occasions before the Senate and House Judiciary Committees.
Before joining the Brennan Center, Goitein served as counsel to Sen. Russ Feingold, chair of the Constitution Subcommittee of the Senate Judiciary Committee, and as a trial attorney in the Federal Programs Branch of the Civil Division of the Department of Justice.
Goitein graduated from Yale Law School and clerked for Judge Michael Daly Hawkins of the U.S. Court of Appeals for the Ninth Circuit. In 2021–22, she was a member of the inaugural class of senior practitioner fellows at the University of Chicago’s Center for Effective Government.
Goitein is admitted to the bar in the State of Massachusetts. Her practice in Washington, DC, is limited to practice before U.S. courts as provided in DCCA Rule 49(c)(3).
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