There is no inherent presidential tariff power. That is solely the prerogative of the Congress. This has been true since the country was founded 250 years ago. The president has only what the Congress decides to entrust the nation's chief executive with, and it has been very sparing in giving the president any tariff authority, taking care to specify its limits. It is easy to forget this fact with the current president who sees himself as a tariff president.
It can be understandable to make this mistake as three presidents have had their names associated with tariffs. President William McKinley's name was attached to a high tariff in 1890, but the president at the time was actually Benjamin Harrison. The tariff was named after McKinley because he was at the time chairman of the powerful House Ways and Means Committee. Harrison only got to sign the tariff passed by Congress. It was a Congressional, not a presidential, measure.
The second president with this distinction, Richard Nixon, is known for imposing an emergency 10 percent import surcharge during a balance of payments crisis. But he did not actually invoke the wartime (World War I) powers, the Trading with the Enemy Act, that his lawyers claimed he used, and Congress, in any event thinking he had done so, repealed that authority, the Supreme Court has found (more on this below). Nixon did something else in the tariff area that was very daring. He proposed in his trade bill, the Trade Reform Act of 1973, that if he declared something a nontariff barrier, the modification or removal of which was necessary to implement a trade agreement he negotiated, and the barrier was imbedded in US law, he could change the law without any action by Congress. If either house of Congress passed a resolution of disapproval by a simple majority, the agreement could not be implemented, and the change could not be made. That far-reaching proposal was rejected by the Senate and never became law. Instead, the Congress gave the president a special trade agreement implementing procedure: an up-or-down vote in a limited time, with no amendments allowed. (First called informally "fast track," it came to be called Trade Promotion Authority.) The Congress had to act by passing a new statute, to be signed by the president, just like any other law.
The third president to have his name associated with a broad tariff is President Donald Trump. He famously declared what he called a "reciprocal tariff" on April 2, 2025, put into effect last August. He tried to use the sort of emergency authority Nixon was thought to have used, the International Emergency Economic Powers Act (IEEPA). That tariff lasted about six months until it was rejected by the courts. The Supreme Court held on February 20, 2026, that sanctions authority was not tariff authority at all. I thought that this went too far, that there could be circumstances where a tariff could be used as a sanction to regulate trade, but that is not what the Court decided.1
The president promptly replaced the discredited IEEPA authority with a claim of a balance of payment problem under Section 122 of the Trade Act of 1974. He said he would impose a 10–15 percent tariff (it turned out to be 10 percent). The Court of International Trade promptly rejected the use of that statute on the basis that there was no balance of payments problem that would trigger this short term (150 day) authority.
Tariff authorities can only come from the Congress, and it has been very careful to give only narrowly circumscribed tariff authority to the president. There is only a short list of these authorities. And each of the explicit tariff authorities has stated limits. For example, there was a time when the president could have entered into trade agreements, like the ones with the European Union or the United Kingdom last year and put into place a higher US tariff needed to implement the deal. However, President Joseph R. Biden Jr. let that authority, known as Trade Promotion Authority (TPA), lapse completely in 2021, and in any event, Congress stopped including the tariff increasing authority in TPA in the 1988 Omnibus Trade and Competitiveness Act. Since Trump failed to ask for tariff authority of the kind that existed from June 12,1934–January 2,19882 to increase tariffs, he has no authority to place tariffs on imports by reason of any trade agreement.
This leaves him with only selective tariff authorities. He can find that imports are increasing in quantities or under conditions that injure an individual domestic industry but that involves a lengthy investigation and a finding by an independent bipartisan commission before tariffs can be imposed. That route is therefore not at all as flexible an instrument as IEEPA would have been and has not been chosen by the administration.
Another statute is being used as tariff authority, but again it is selective, by product sector, and requires investigation. The president can impose tariffs to safeguard the national security on a product sector basis under Section 232 of the Trade Expansion Act of 1962. He has chosen to do so, after investigations by the Department of Commerce and advice from the secretary of defense, on steel, aluminum, copper, automobiles and parts, trucks and buses, lumber and wood products, semiconductors, and processed critical minerals. A plethora of additional products are under investigation.3
But these means do not match what the president thought he had in IEEPA, so USTR has invoked trade retaliatory authority under Section 301 of the Trade Act of 1974. If the USTR finds that a country has engaged in acts, policies, or practices that are unreasonable and burden US commerce, then USTR or the president can impose tariffs without limits, presumably to obtain a positive change in the offending behavior. But lacking IEEPA, a permanent balance of payments authority, or a trade agreement authority, the administration has resorted to using Section 301 to find 60 countries guilty of not enforcing or having adequate laws against forced labor and is investigating an additional 16 countries for maintaining structural excess capacity. It is clearly intent on finding a substitute for the loss of the use of the IEEPA authority. The flaw in trying to do so with the trade retaliatory authority is two-fold: It is a selective, not comprehensive, authority and not designed to be imposed on all countries all at once and there is nothing in its legislative history suggesting that it could be read as tantamount to a transfer of all of Congress's tariff authority to the president. Nor is it possible under constitutional doctrine for the Congress to delegate all of its tariff authority to the president.
The Founding Fathers intentionally did not give the president tariff authority
There is a reason why the Constitution vests comprehensive tariff authority in the Congress and not the chief executive. It goes back to English history the century before this country was born with the Declaration of Independence. The English king Charles I lost the right to impose taxes (including tariffs) in 1628. He did not surrender what he took to be his authority lightly. A civil war was required and ultimately the Parliament condemned him and had him executed by beheading. This was as recent in history for our country's Founding Fathers as the World War II is for us today. The English colonies fought a war a century and a half later to determine which power got to impose taxes on the colonies, whether king or parliament. It was to be neither. They formed the United States 250 years ago, and as the British tea merchants of the day could attest, the power to levy duties would rest only with the colonists' elected representatives. The Founding Fathers created a constitution that was crystal clear that their assembled elected representatives would levy tariffs and taxes, not the president. The reason for this was articulated eloquently by Supreme Court Justice Neil Gorsuch in his concurring opinion striking down the president's use of IEEPA to impose his "reciprocal" tariffs: "the deliberative nature of the legislative process was the whole point of its design. Through that process, the Nation can tap the combined wisdom of the people's elected representatives, not just that of one faction or man. There, deliberation tempers impulse, and compromise hammers disagreements into workable solutions."
President Trump has now attempted twice to impose comprehensive tariffs without resort to Congress . Use of Section 301 or a claim of some other device will also not succeed. The president has no broad tariff authority. He has not been given any by the Constitution nor by the Congress.
Notes
1. I wrote that IEEPA did not authorize comprehensive tariffs, but did not exclude a narrower use of the statute to impose a tariff, e.g. as a sanction. See note 4.
2. Reciprocal Trade Agreements Act of 1934 up until the Omnibus Trade and Competitiveness Act of 1988.
3. Pharmaceuticals; Commercial Aircraft & Jet Engines; Unmanned Aircraft Systems (Drones); Wind Turbines; Medical Equipment & Devices; Personal Protective Equipment (PPE) & Medical Consumables; and Robotics & Industrial Automation.
Data Disclosure
This publication does not include a replication package.
