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Donald Trump’s tariffs are the biggest tax increase in decades and have upended global markets — the actions of one man possibly plunging the country into recession. The abrupt move scrambled political alliances: The U.S. Chamber of Commerce is likely to sue, while the United Auto Workers endorsed the tariffs.
Amid market carnage and political chaos, it can be easy to overlook one key question. I’ll ask it: Wait, can a president do this?! After all, presidents cannot unilaterally set income tax rates. Why is this ok? Conservatives and liberals alike are asking this question.
For answers, I turned to Elizabeth Goitein and Katherine Yon Ebright of the Brennan Center, two of the country’s leading experts on emergency powers (and thus very busy people these days). Here’s their answer in a nutshell:
Trump used emergency powers to set these tariffs. The International Emergency Economic Powers Act grants presidents special authorities if a national emergency has been declared. Presidents of both parties have stretched the concept of an emergency. But Trump’s proclamation that the decades-old U.S. trade deficit constitutes an emergency — by definition, something sudden and unforeseen — is particularly brazen. The trade deficit may or may not be a problem, but it’s simply not an emergency.
Trump’s deployment of this law is extraordinary for a second reason: it doesn’t include a tariff power. Presidents have used this emergency powers law to restrict imports from targeted countries or to freeze the assets of enemies, but it contains no reference to tariffs and no president has ever used it for this purpose. Yet Trump has slapped tariffs on more than 180 trading partners under the law, including the uninhabited Heard Island and McDonald Islands. Take that, penguins.
That’s a rather stunning report. This declaration of a trade war against the world turns out to be one of the most audacious and consequential power grabs yet for this imperial presidency.
As I wrote in November, tariffs can produce a frenzy of lobbying as companies and countries clamor for exemptions and special rates. The conservative National Review put it well: “Lobbying isn’t an unfortunate side effect of protectionism. It’s an integral part.” In the 1800s those interests pressured Congress. This time the deals will be made at the White House, with even less transparency.
Will courts step in? Maybe. Judges are generally reluctant to probe a president’s decision that there is a national emergency, but they can (and should) when a president acts in bad faith or conjures up nonexistent crises. And judges may be less reticent to tackle the question of whether the International Emergency Economic Powers Act authorizes tariffs.
A conservative group, the New Civil Liberties Alliance, has gone to court already. It points out that in West Virginia v. EPA, the Supreme Court created a new “major questions” doctrine. If something is important enough, the supermajority of conservative justices ruled, Congress should make policy, not the president. A cynic might observe that “major questions” was devised to stop Democratic presidents from pursuing, say, climate change rules. Will the Court follow its own rhetoric and apply it to a Republican president too?
The Constitution gives Congress — not the president — the “power To lay and collect Taxes, Duties, Imposts and Excises.”
The real constitutional crisis of 2025 is not just an overreaching executive but a supine legislature. Trump’s abuse of emergency powers to impose tariffs, however, could be enough to prompt some institutional pushback. After all, many Republican lawmakers supported emergency powers reform under the first Trump administration. Already, four Republican senators have joined Democrats in voting to terminate a separate emergency declaration that Trump used to levy tariffs on Canada, and seven senators have cosponsored a bipartisan bill to declare that a tariff can only last 60 days if Congress doesn’t specifically approve it.
Sen. Rand Paul (R-KY) spoke powerfully on the Senate floor yesterday. “I don’t care if the president is a Republican or a Democrat. I don’t want to live under emergency rule. I don’t want to live where my representatives cannot speak for me and have a check and balance on power.”
Tariffs may seem an arcane topic for a resetting of checks and balances. But they have been part of the autocrat’s playbook from the start — and resistance to arbitrary taxes imposed by a too-powerful executive goes back a long way. After all, the Declaration of Independence charged King George III with “cutting off our trade with all parts of the world” while “imposing Taxes on us without our consent.”
“No taxation without representation.” Now that’s a message.
