The Tariffs Are Illegal

The legal problem with President Donald Trump’s tariffs is that the United States has a Constitution, and the Constitution says that Congress has the power to impose tariffs and the president doesn’t. This is not some weird technicality; this is just what the Constitution says. “The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises,” and “To regulate Commerce with foreign Nations.” But Congress did not pass President Trump’s “Liberation Day” tariffs on April 2, or any of the various up-and-down permutations since then. That was all him, acting by executive order.

Congress did pass a law, in 1977, that gives the president powers to “deal with any unusual and extraordinary threat, which has its source in whole or substantial part outside the United States, to the national security, foreign policy, or economy of the United States, if the President declares a national emergency with respect to such threat.” (This law is called the International Emergency Economic Powers Act of 1977, or IEEPA.) Specifically, the president can “investigate, block during the pendency of an investigation, regulate, direct and compel, nullify, void, prevent or prohibit, any acquisition, holding, withholding, use, transfer, withdrawal, transportation, importation or exportation of, or dealing in, or exercising any right, power, or privilege with respect to, or transactions involving, any property in which any foreign country or a national thereof has any interest by any person, or with respect to any property, subject to the jurisdiction of the United States.” That long list is usually abbreviated, in this context, to “regulate … importation”: The IEEPA allows the president to regulate imports in an emergency. If he can regulate imports, can he impose tariffs on them? Eh, maybe, sounds like a regulation.