Emergency! Trump's use of extraordinary powers for tariffs

Recent violent stock market swings have a number of causes, but high on the list are the apparent arbitrariness and unpredictability of President Donald Trump’s tariff policies — particularly on Canada, Mexico and China — which seem to shift almost daily at the whim of the president.

Since vital components and raw materials for American businesses are sourced from those countries, the uncertainty can have the effect of freezing business decision-making in place, creating a reluctance to invest and hire.

Underlying this seemingly capricious quality is President Trump’s use of extensive emergency powers given to the executive branch. These powers date back to the 1917 “Trading With the Enemy Act.” In their more recent incarnation under the National Emergencies Act (NEA) and International Emergency Economic Powers Act (IEEPA) passed in the 1970s, they give the president very broad authorities to take action around economic relations with a foreign country pursuant to the declaration of a national emergency involving that country.

If these powers were limited to what ordinary common sense might term an “emergency” — a truly pressing situation requiring immediate action to avoid catastrophic consequences — there might not be an issue. But with few limits on what can be declared an emergency and little ability for Congress to reverse such declarations, the number of “emergencies” has grown far beyond common sense.

As of February 2025 there were 48 declared national emergencies in effect under IEEPA, most of which would be totally obscure to ordinary Americans and don’t threaten catastrophic outcomes if the president simply followed ordinary legislative and rule-making procedures to address them.

Three recently declared emergencies — one involving the southern border with Mexico, a second involving the northern border with Canada, and a third on the involvement of Chinese companies with synthetic opioid supply chains — are at the heart of the executive authority Trump has recently used in setting and removing tariffs on each of these countries, seemingly on a day-by-day basis.

As in many other areas of policy, Congress has already delegated broad powers to the president for international economic action that could be used to impose tariffs when needed, completely outside of any emergency powers. Section 301 of the Trade Act of 1974 allows the executive to impose tariffs in response to unfair trading practices by foreign countries. Section 232 of the Trade Expansion Act of 1962 allows tariffs on imports if they are found to pose a threat to national security. (That is currently being used by the Trump administration to expand tariffs on steel and aluminum that have been in place since 2018.) Other tools available to remedy unfair trade practices by foreign countries include anti-dumping and countervailing duties.

But these other authorities, while very broad, require investigation and documentation of specific issues justifying the tariff, as well as in most cases public comment by American businesses potentially affected by it. It is the lack of any real procedural safeguards around the use of emergency powers that makes them particularly attractive for arbitrary executive action.

The problem with emergency powers go beyond tariffs, however. The scope of powers potentially available through IEEPA are vast. During his first term, President Trump tried to use these emergency powers to attempt to build his southern border wall and ban TikTok (prior to the more recent Congressional passage of a ban). All recent presidents have used emergency powers repeatedly to put in place extensive economic sanctions on foreign countries and to grant executive agencies like the Treasury Department the power to sanction and seize property.

Most such sanctions affect foreign individuals, but American citizens can also be penalized under IEEPA if they either violate sanctions imposed on foreign persons or are considered to be violating national security priorities laid out in the emergency declaration.

Indeed, we may only have seen the tip of the iceberg in terms of the executive powers potentially available to the president under emergency declarations. In the two months since he took office, Trump has declared multiple emergencies potentially affecting a broad scope of American life, including a “national energy emergency” and a national emergency concerning transnational gangs such as the Venezuelan Tren de Aragua, Mexican cartels, and the predominantly Salvadoran MS-13, which is connected to recent deportations.

As in the case of tariffs, there are numerous other non-emergency authorities available to the president to address these issues, but none are as broad as those available under an emergency declaration. Signing his energy emergency declaration, Trump said that such a declaration “means you can do whatever you have to do to get out of that problem" — a very expansive indication of what he might feel empowered to do.

Given the concerns raised about executive powers, especially since Trump’s first term, it is curious that Congress has not acted to limit the President’s emergency powers.

Under the original 1970s legislation, Congress could reverse a presidential emergency through a simple majority vote. But, in a 1983 decision, the Supreme Court ruled that Congressional reversal would require overriding a presidential veto — meaning a nearly impossible two-thirds vote in both houses.

Since that time, it has been clear that new legislation would be required to limit these powers. But it hasn’t yet happened. Congress in general has been reluctant to claw back powers it has granted to the president. The extensive use of IEEPA emergency powers to impose sanctions on adversary foreign nations has also led to concern that limiting the president's powers could disrupt the complex U.S. sanctions regime.

In recent years, there has been some bipartisan momentum for reform, however. Legislation like the Article One Act sponsored by Republican Senator Mike Lee, Republican Rep. Chip Roy, and a range of other Democratic and Republican legislators, would require presidentially-declared national emergencies to end within 30 days unless a Congressional majority affirmatively votes that they should continue.

However, the measure was not passed in the last Congress. Rep. Andy Biggs and Sen. Rand Paul — both Republicans — have attempted to revive the measure in the current Congress, but it’s unclear how far it will go. Given Trump’s enthusiasm for using emergency powers, it may be difficult to get bipartisan consensus. But it is precisely this enthusiasm that should make Congress even more committed to limiting presidential overreach.