US President Donald Trump’s own words are sufficient evidence that his latest tariffs are unlawful, since they are not responses to his declared “emergency” at the southern border. But US courts are unlikely to do anything about it, further underscoring how weak America’s constitutional order has become.
CHICAGO – US President Donald Trump’s sweeping tariffs on Mexican, Canadian, and Chinese imports rest on shaky legal ground. But they are unlikely to be struck down in court. By exploiting a gap between the law and brute power, the Trump administration is laying bare the weakness of America’s constitutional order.
The US Constitution assigns authority over foreign trade and taxation to Congress alone. While Trump has made an extravagant show of ignoring Congress’s duly enacted laws in recent weeks, his tariff orders themselves invoke federal law: the 1977 International Emergency Economic Powers Act (IEEPA). And yet, the IEEPA does not support Trump’s current tariffs.
The law’s language makes this clear. A president may declare a “national emergency” to address an “unusual or extraordinary” foreign threat to America’s “national security, foreign policy, or economy.” Once that is done, the IEEPA grants vast emergency-specific powers, including the authority to “regulate” the “importation” of “any property.” But these additional powers apply only to the emergency at hand; they may not be used for “any other purpose.”
Thus, in January, Trump declared an emergency “at the southern border,” citing the threat posed by cartels, migration, and narcotics. Let us take this declaration at face value and assume that there is a crisis at the border. Even then, the tariffs imposed this month cannot plausibly be understood as a response to it.
This is most obvious with respect to Canada, a country that plays almost no role in supplying the American fentanyl market. The discontinuity between the vast tariffs being imposed on Canada and the notional emergency at the “southern border” is so glaring that the tariffs should be viewed as illegal on their face. The off-and-on nature of these tariffs underscores their lack of rational connection to any particular policy.
China is a more complex case, but the result is the same. While China is a source of precursor chemicals for opioid production, former President Joe Biden’s administration already secured an agreement with the Chinese to limit these exports. Blunderbuss tariffs against China, disconnected from any evidence that the previous agreement has gaps, cannot credibly be framed as a response to the crisis at the southern border. As with Canada, Trump’s tariffs are obviously a response to some other issue.
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Even with respect to Mexico, it is fair to ask whether the tariffs are truly aimed at changing the Mexican administration’s policies on opioids. As Mexican President Claudia Sheinbaum noted when she announced countermeasures this month, fentanyl seizures at the border had already dropped by 50% from October to January. Moreover, from 2019 to 2024, four out of five people detained at border crossings for carrying fentanyl were US citizens.
If there was any doubt that the latest tariffs are not really about the southern border “emergency,” Trump himself gave the game away in February, when he said that the purpose is to force manufacturers to move their plants to the United States. Similarly, in justifying the tariffs against Canada, he has not only complained about (non-existent) barriers for US banks seeking to enter the Canadian retail market; he has also explicitly linked the policy to his illegal ambition of forcing Canada to join the US against its will.
The president’s own words are sufficient evidence that the March tariffs are unlawful. Since they are not responses to the declared “emergency” on the southern border, the IEEPA expressly and clearly forbids their use.
To be sure, the White House would probably argue that the tariffs provide leverage over governments that could do something about the fentanyl problem. But permitting presidents to do whatever they want to create leverage with respect to a narrowly defined emergency would invalidate Congress’s decision to specify the focus and scope of emergency powers in the language of the IEEPA. The exception would become the rule.
Lawyers often use hypotheticals to support such arguments. But no hypothetical is needed here. In putatively responding to the opioid epidemic, Trump would effectively impose a new $1,000 tax on every American household – tantamount to adding a percentage point to Americans’ marginal tax rate. No reasonable interpretation of the IEEPA’s targeted authority allows for the president to trigger such sweeping changes.
Yet despite the obvious illegality of the policy, Trump’s authority is unlikely to be seriously tested before the courts. Since the 1980s, federal courts have flatly refused to second-guess factual claims behind an IEEPA emergency declaration, and judges have bent over backward to grant the president broad powers in these contexts. Even where a president expresses an unlawful purpose, the Supreme Court has been willing to turn a blind eye. In the case of the first Trump administration’s Muslim ban, the Court spun a fine web of casuistry to suppress and ignore the president’s many xenophobic and bigoted justifications.
Worse, in a challenge to Trump’s 2018 steel tariffs, one circuit court speculated vaguely about the president’s “independent” constitutional power over foreign trade. In effect, it conjured out of thin air a complete new presidential power that erased Congress’s clear and exclusive authority over foreign trade and taxation.
According to this reasoning, even the minimal limits imposed on presidential power to reorder foreign trade – at a steep price to American taxpayers – would fall by the wayside. Yet in the past decade, courts have been increasingly willing to ignore the constitutional text in pursuit of an ahistorical theory of the presidency as the sole and exclusive anchor of American democracy and liberties.
Foreign governments and citizens confronted by erratic and unjustified US tariffs can take little comfort in knowing that these measures are likely illegal. The refusal by US courts to call Trump’s bluff is a signal of how weak America’s constitutional order has become, and how unwilling federal judges are to confront its nemesis.
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US President Donald Trump’s import tariffs have triggered a wave of retaliatory measures, setting off a trade war with key partners and raising fears of a global downturn. But while Trump’s protectionism and erratic policy shifts could have far-reaching implications, the greatest victim is likely to be the United States itself.
warns that the new administration’s protectionism resembles the strategy many developing countries once tried.
It took a pandemic and the threat of war to get Germany to dispense with the two taboos – against debt and monetary financing of budgets – that have strangled its governments for decades. Now, it must join the rest of Europe in offering a positive vision of self-sufficiency and an “anti-fascist economic policy.”
welcomes the apparent departure from two policy taboos that have strangled the country's investment.
CHICAGO – US President Donald Trump’s sweeping tariffs on Mexican, Canadian, and Chinese imports rest on shaky legal ground. But they are unlikely to be struck down in court. By exploiting a gap between the law and brute power, the Trump administration is laying bare the weakness of America’s constitutional order.
The US Constitution assigns authority over foreign trade and taxation to Congress alone. While Trump has made an extravagant show of ignoring Congress’s duly enacted laws in recent weeks, his tariff orders themselves invoke federal law: the 1977 International Emergency Economic Powers Act (IEEPA). And yet, the IEEPA does not support Trump’s current tariffs.
The law’s language makes this clear. A president may declare a “national emergency” to address an “unusual or extraordinary” foreign threat to America’s “national security, foreign policy, or economy.” Once that is done, the IEEPA grants vast emergency-specific powers, including the authority to “regulate” the “importation” of “any property.” But these additional powers apply only to the emergency at hand; they may not be used for “any other purpose.”
Thus, in January, Trump declared an emergency “at the southern border,” citing the threat posed by cartels, migration, and narcotics. Let us take this declaration at face value and assume that there is a crisis at the border. Even then, the tariffs imposed this month cannot plausibly be understood as a response to it.
This is most obvious with respect to Canada, a country that plays almost no role in supplying the American fentanyl market. The discontinuity between the vast tariffs being imposed on Canada and the notional emergency at the “southern border” is so glaring that the tariffs should be viewed as illegal on their face. The off-and-on nature of these tariffs underscores their lack of rational connection to any particular policy.
China is a more complex case, but the result is the same. While China is a source of precursor chemicals for opioid production, former President Joe Biden’s administration already secured an agreement with the Chinese to limit these exports. Blunderbuss tariffs against China, disconnected from any evidence that the previous agreement has gaps, cannot credibly be framed as a response to the crisis at the southern border. As with Canada, Trump’s tariffs are obviously a response to some other issue.
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At a time of escalating global turmoil, there is an urgent need for incisive, informed analysis of the issues and questions driving the news – just what PS has always provided.
Subscribe to Digital or Digital Plus now to secure your discount.
Subscribe Now
Even with respect to Mexico, it is fair to ask whether the tariffs are truly aimed at changing the Mexican administration’s policies on opioids. As Mexican President Claudia Sheinbaum noted when she announced countermeasures this month, fentanyl seizures at the border had already dropped by 50% from October to January. Moreover, from 2019 to 2024, four out of five people detained at border crossings for carrying fentanyl were US citizens.
If there was any doubt that the latest tariffs are not really about the southern border “emergency,” Trump himself gave the game away in February, when he said that the purpose is to force manufacturers to move their plants to the United States. Similarly, in justifying the tariffs against Canada, he has not only complained about (non-existent) barriers for US banks seeking to enter the Canadian retail market; he has also explicitly linked the policy to his illegal ambition of forcing Canada to join the US against its will.
The president’s own words are sufficient evidence that the March tariffs are unlawful. Since they are not responses to the declared “emergency” on the southern border, the IEEPA expressly and clearly forbids their use.
To be sure, the White House would probably argue that the tariffs provide leverage over governments that could do something about the fentanyl problem. But permitting presidents to do whatever they want to create leverage with respect to a narrowly defined emergency would invalidate Congress’s decision to specify the focus and scope of emergency powers in the language of the IEEPA. The exception would become the rule.
Lawyers often use hypotheticals to support such arguments. But no hypothetical is needed here. In putatively responding to the opioid epidemic, Trump would effectively impose a new $1,000 tax on every American household – tantamount to adding a percentage point to Americans’ marginal tax rate. No reasonable interpretation of the IEEPA’s targeted authority allows for the president to trigger such sweeping changes.
Yet despite the obvious illegality of the policy, Trump’s authority is unlikely to be seriously tested before the courts. Since the 1980s, federal courts have flatly refused to second-guess factual claims behind an IEEPA emergency declaration, and judges have bent over backward to grant the president broad powers in these contexts. Even where a president expresses an unlawful purpose, the Supreme Court has been willing to turn a blind eye. In the case of the first Trump administration’s Muslim ban, the Court spun a fine web of casuistry to suppress and ignore the president’s many xenophobic and bigoted justifications.
Worse, in a challenge to Trump’s 2018 steel tariffs, one circuit court speculated vaguely about the president’s “independent” constitutional power over foreign trade. In effect, it conjured out of thin air a complete new presidential power that erased Congress’s clear and exclusive authority over foreign trade and taxation.
According to this reasoning, even the minimal limits imposed on presidential power to reorder foreign trade – at a steep price to American taxpayers – would fall by the wayside. Yet in the past decade, courts have been increasingly willing to ignore the constitutional text in pursuit of an ahistorical theory of the presidency as the sole and exclusive anchor of American democracy and liberties.
Foreign governments and citizens confronted by erratic and unjustified US tariffs can take little comfort in knowing that these measures are likely illegal. The refusal by US courts to call Trump’s bluff is a signal of how weak America’s constitutional order has become, and how unwilling federal judges are to confront its nemesis.