“When Trump imposed tariffs during his first term, he cited authority under other laws, like the Trade Act of 1974 and the Trade Expansion Act of 1962. At one point he threatened to invoke the IEEPA to impose tariffs on Mexican goods, but he never followed through, perhaps amid concern it would have been seen as legally dubious.
That’s because the IEEPA is typically used to impose sanctions — not tariffs — on other countries.
But Trump’s decision to use the IEEPA this time, when he’s aggressively flexing his executive authority, may be no accident: Unlike other trade laws, the IEEPA has the fewest procedural requirements and safeguards.
It gives the president the power to regulate or prohibit a broad swath of economic activity in order “to deal with any unusual and extraordinary threat” that is based largely outside the United States and concerns “the national security, foreign policy, or economy of the United States.” In the executive orders that announced the tariffs on Canada, Mexico and China, Trump invoked the opioid crisis, as well as illegal immigration from Canada and Mexico.”
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“No president has ever used the IEEPA to impose tariffs before. In fact, the IEEPA was passed as part of a broader effort by Congress in the 1970s to limit the president’s ability to exercise emergency economic powers. The framework ultimately created, however, completely fails to rein in the president, according to Timothy Meyer, a law professor and expert on international trade law. And Trump is taking advantage of that failure by pushing beyond what the Constitution intended.
“This strikes me as unconstitutional,” Meyer told me. “It’s very difficult to see how the framers would’ve thought that it was constitutional for the president to simply have the power on the drop of a hat to impose an across-the-board 25 percent tariff on our major trading partners.”
The Constitution gives Congress the authority to “lay and collect Taxes, Duties, Imposts and Excises.” Between Trump’s tariffs and his unilateral effort to halt federal spending, he has now effectively claimed that he has both taxing and spending authority — a government all his own. Congress barely even needs to exist in this framework.”