Trump’s Tariffs Are Just the Latest Presidential Power Grab

President Donald Trump issued a series of executive orders early in his second term imposing new tariffs on imports from dozens of countries. Courts have since ruled against the administration and rejected many, but not all, of the new tariffs. Unfortunately, this aggressive—and legally contested—use of executive power is part of a broader trend.

Our federal statutes are riddled with vague authorizations and open-ended “emergency powers.” And using such emergency powers has become the rule, rather than the exception, because presidents can always find an “emergency” to justify those powers.

Except for a 14-month window in the 1970s, the US has lived under one or more declared national emergencies—ranging from Germany’s 1939 invasion of Poland to violence in 2006 in Cote d’Ivoire—continuously since 1933. Today it’s fentanyl and Central American gangs; for the next president, it will be something else.

Rather than achieving their policy priorities by convincing Congress to enact new legislation, presidents have stretched old, ambiguous statutes to accomplish new goals. For instance, the legal foundation Trump invoked for his tariffs is a statute that doesn’t mention “tariffs” or “duties” at all. That law, the International Emergency Economic Powers Act of 1977, was specifically intended to constrain, not expand, presidential authority during national emergencies.

The irony of relying on IEEPA to justify sweeping economic controls becomes clearer with a look at its history. From 1933 to 1945, President Franklin D. Roosevelt wielded extraordinary control over the US economy through the Trading with the Enemy Act—IEEPA’s precursor. Passed initially during World War I to limit trade with enemy nations, FDR and his successors used the Act to target foreign threats and dramatically expand domestic executive power.

Roosevelt invoked the Trading with the Enemy Act during the Great Depression to shut down every bank in the US, require all Americans to forfeit their gold holdings, and regulate consumer credit nationally. In the summer of 1941, the president and his advisers relied on the law to seize Japan’s gold holdings and impose an oil embargo. After Japan attacked Pearl Harbor, the president used the law to censor all international news and telegrams.

As the crises of the Depression and war receded, presidents years later identified new “emergencies,” and many in Congress began to view the Trading with the Enemy Act as a symbol of unchecked executive rule. Lawmakers in the 1970s passed laws, including IEEPA, designed to restore Congress’ primary role in economic and emergency policymaking. This was the period of Americans’ sole, brief respite from national emergency.

But Congress since then has largely retreated as successive presidents have declared more emergencies and claimed more powers. For instance, since Sept. 11, 2001, every president has authorized bulk collection programs of electronic communications, including millions of Americans’ emails and digital records. These warrantless surveillance programs have been justified publicly with vague reference to legal authorization under the “statutes of the United States” and the Constitution.

More recently, President Joe Biden’s administration cited the Covid-19 emergency and vague statutory language to cancel up to $400 billion in student loans. And now the Trump administration has largely displaced Congress’ constitutional power to impose and vary tariffs.

The US Supreme Court has begun to pare back some 20th-century excesses of executive power. In West Virginia v. EPA (2022), the court held that Congress must “speak clearly” if it wants to assign decisions of “vast economic and political significance” to the executive. In Biden v. Nebraska (2023), the court struck down Biden’s student loan cancellation due to a lack of statutory authority. And in Loper Bright v. Raimondo (2024), the court held that the president’s interpretation of an ambiguous law isn’t entitled to deference—rather, it’s the courts’ duty to “determine the best reading” of a contested statute.

It’s been 50 years, however, since the burst of 1970s legislation aimed at constraining presidential power. The Biden and Trump years are a symptom of a larger problem: Congress too often watches passively as the president accumulates more power. History shows that once emergency powers are granted—or claimed—they are difficult to claw back.

Courts, and ultimately Congress, must reaffirm the boundaries of presidential power. A president who wants new authority should ask Congress for it, not claim to find it buried in decades-old emergency power laws.

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law, Bloomberg Tax, and Bloomberg Government, or its owners.

Author Information

Thomas Berry is the director of the Cato Institute’s Robert A. Levy Center for Constitutional Studies and editor‐in‐chief of the Cato Supreme Court Review.

Brent Skorup is a legal fellow at the Cato Institute’s Robert A. Levy Center for Constitutional Studies.

Write for Us: Author Guidelines