Will Congress rise if IEEPA falls?
The Supreme Court may throw the tariff question back to Congress
By Everett H. Eissenstat
Over the past year, President Donald Trump has aggressively used congressionally delegated trade authorities to unilaterally impose tariffs. These actions have upended global trading patterns and rewritten the rules of international trade. Early next year, the U.S. Supreme Court is expected to rule in Learning Resources v. Trump and Trump v. V.O.S. Selections on whether the use of the International Emergency Economic Powers Act (IEEPA) to impose tariffs is lawful.
IEEPA grants the president wide-ranging authority to declare national emergencies and respond through economic means. The Supreme Court will determine whether this authority extends to import tariffs. Billions of dollars of tariff revenue are at stake and much of the President’s domestic, economic, and foreign affairs policies rest on his continued ability to wield tariff authority. Thus, the impact of the Supreme Court’s ruling will be profound, potentially redefining the boundaries of presidential power over international trade for decades to come. A key question is whether and how the U.S. Congress might react to this ruling.
While President Trump has aggressively used tariff authority over the past year, it’s important to remember that Article 1, Section 8 of the U.S. Constitution grants Congress, not the president, the power to regulate foreign commerce, impose import tariffs, and raise revenue. Over time, Congress has specifically delegated to the president its authority to modify tariffs under certain limited circumstances.
For example, Section 201 of the Trade Act of 1974 allows the president to impose temporary duties and other trade measures if the U.S. International Trade Commission determines after an investigation that a surge in imports is a substantial cause or threat of serious injury to a U.S. industry. Section 232 of the Trade Expansion Act of 1962 authorizes the imposition of sectoral tariffs if the president determines that imports of these products threaten U.S. national security. Section 301 of the Trade Act of 1974 authorizes the U.S. trade representative to take a broad array of actions to respond to unfair foreign trade practices. Section 338 of the Tariff Act of 1930 permits the president to implement “new or additional duties” against imports originating from or imported on a vessel of any country that he finds either (1) imposes “any unreasonable charge, exaction, regulation, or limitation” on U.S. goods that are not equally applied to like articles from other countries, or (2) otherwise discriminates against the commerce of the United States. And Section 122 of the Trade Act of 1974 permits the president to impose import measures to address a balance of payments deficit between the U.S. and other countries. With the exception of Section 338, presidential authority to use these statutes to impose tariffs under certain conditions is widely accepted.
However, Trump’s use of IEEPA authority to impose tariffs is unprecedented. Since taking office, Trump has used IEEPA to impose country-specific tariffs on Brazil, China, Canada, India, and Mexico, and to implement global “reciprocal tariffs” on other countries ranging from 10 to more than 40 percent. These actions have resulted in the highest overall U.S. tariff rate since the 1930s. In addition, the president used the leverage gained by these high tariffs to negotiate more than a dozen bilateral trade framework agreements. These tariff rates and framework agreements have been put into place and negotiated by the president with little to no input from Congress, a significant departure from precedent. In the past, Congress, consistent with its constitutional authorities, has taken a leading role in setting tariff rates and authorizing the parameters of trade negotiations.
For example, the last time the average tariff rate was this high was in 1930, when Congress passed and President Herbert Hoover signed into law the Tariff Act of 1930, commonly known as the Smoot-Hawley Tariff Act. Implementation of the rigid 1930 Smoot-Hawley tariffs led to unanticipated retaliatory action from trading partners and economic historians attribute it to even further escalating the Great Depression. To ease the effects of the financial crisis, Congress enacted the Reciprocal Trade Agreements Act of 1934 (RTAA). The RTAA authorized the president to reduce tariffs within predefined levels through entry into reciprocal trade agreements, marking the first time Congress yielded a portion of its trade authority to the president. Over the following decades, Congress continued to delegate its tariff authority to the president, often limiting its use and the purposes for its employment.
These delegations of tariff negotiating authority include the Trade Expansion Act of 1962, which gave the president broad authority to cut tariffs; the Trade Act of 1974, which delegated authority to the president to negotiate trade agreements; the Trade and Tariff Act of 1984 and Omnibus Trade and Competitiveness Act of 1988, which modified procedures for negotiating and implementing trade agreements; the Trade Act of 2002, which reauthorized Trade Promotion Authority and ushered in a series of negotiations leading to new U.S. bilateral and plurilateral trade agreements; and the Bipartisan Congressional Trade Priorities and Accountability Act of 2015 (BCTPA), which authorized additional trade negotiations that were then used by Trump and the 116th Congress to gain approval and implementation of the US-Mexico-Canada Agreement.
The tariff and negotiating authority granted by the BCTPA expired on July 1, 2021, and has not been renewed. The reality is that Congress has not passed any major trade legislation authorizing trade negotiations since 2015. There is no question the world has changed since then. Today, we are at the precipice of a generational shift. Current statutory tools are being used more aggressively than they ever have been before. Simultaneously, bilateral trade frameworks are being negotiated at an unprecedented pace, with many covering subject matter never included in any prior trade agreements.
With such a transformational shift occurring, shouldn’t Congress, the governing body given responsibility for regulating foreign commerce and imposing import tariffs, have an active seat at the table? It would seem so, and perhaps the Supreme Court’s rulings in Learning Resources v. Trump and Trump v. V.O.S. Selections on Trump’s use of IEEPA will be the impetus needed for Congress to reassert itself.
There is a strong possibility that the Supreme Court will find that Trump’s use of IEEPA authority is unlawful. If so, as described above, there is an arsenal of trade tools the president can use to recreate the existing tariff regime, though none are as nimble, fast, and flexible as IEEPA. Yet uncertainty looms over the multiple bilateral framework agreements negotiated by Trump and his team. If the authority to impose unilateral reciprocal tariff rates is unlawful, what happens to these framework agreements? Do framework countries remain committed to the agreements? And how does Congress react?
The fall of IEEPA tariffs could spur Congress to rise up and pen legislation to retroactively approve and implement many of the bilateral trade frameworks Trump has negotiated. On the other hand, if the Supreme Court upholds presidential authority to impose tariffs under IEEPA, then the United States will witness a massive transfer of power from the legislative to the executive branch. Trump, and future presidents, will have a nearly unfettered ability to impose and remove tariffs quickly for virtually any purpose the president identifies as a national emergency, requiring little to no congressional input.
Regardless of which way the Supreme Court rules, 2026 promises to be a year of great change in U.S. trade policy. Congress, as the elected voice of the people and empowered by the U.S. Constitution to regulate trade, should assert its role and help design these changes. With billions of dollars of revenue at stake and the contours of the next generation of trade policy taking shape, there is simply too much on the line for Congress to play the bystander.
Everett Eissenstat, the James R. Schlesinger Distinguished Professor at the Miller Center, served as deputy assistant to the president for international economic affairs and deputy director of the National Economic Council during President Donald Trump’s first term.