148 House Representatives Say IEEPA Doesn’t Grant President Tariff Powers
One hundred forty-eight members of the House of Representatives filed an amicus curiae brief May 16 saying the International Emergency Economic Powers Act wasn't intended to grant the president the power to levy tariffs (The State of Oregon v. Donald Trump, CIT # 25-00077).
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Congress has passed other laws that grant the executive branch the power to levy tariffs, the representatives said. These “provide the President with substantial powers to address unfair foreign trade practices, to protect U.S. national security, and to protect U.S. manufacturers and American workers.” But they also lay out “well-defined procedures” the president must follow when he uses those powers, they said.
By attempting to rely on IEEPA instead of one of these other laws to impose his administration’s reciprocal tariffs, President Donald Trump had “unlawfully exceeded the authority conferred to him by Congress in a chaotic manner that is damaging to many of Amici’s constituents,” they said.
Historically, they said, “Congress has held its tariff power closely.” It wasn’t until the twentieth century that the executive was granted a limited ability to adjust tariff rates in certain circumstances. That ability expanded somewhat with the Reciprocal Trade Agreements of 1934, but even then it was curtailed by restrictions such as mandatory sunset reviews, the representatives said.
Because “[w]hat is jealously guarded is not lightly bestowed,” statutes that give the president tariff powers explicitly lay out the legislative branch’s intent, they said, and impose strict limits.
“Congress has never delegated its tariff power implicitly,” the representatives said.
Laws that grant the executive the power to levy tariffs have certain hallmarks, they said: a “limited scope, trade-specific conditions, procedural safeguards, public input, collaboration with Congress, or a time limit.”
Only two acts, the Tariff Act of 1930 and the Trade Act of 1974, have primarily let the president impose tariffs, they said. That power is located in Section 338 of the Tariff Act and sections 122, 201-204 and 301-310 of the Trade Act. Further, they said, two more laws allow for the imposition of countervailing duty and antidumping duty orders pursuant to investigations, and another, Section 232 of the Trade Expansion Act of 1962, concerns duties on imports that threaten national security.
Each of these laws specifically uses the word “duty” in its text, they said. They were passed in acts directed explicitly at trade -- the Tariff Act, the Trade Act, and the Trade Expansion Act -- and codified in U.S. code under trade-related headings. None of this was true of IEEPA, they said. IEEPA doesn’t mention duties, was passed in an act not specific to trade and was codified in Title 50, “War and National Defense.”
Laws that actually grant the president tariff power also impose limits and prerequisites, they said; for example, Section 201 requires an exhaustive investigation conducted by the independent International Trade Commission. They are also clear that they don’t let the president take action against any foreign country at will, limiting the president’s authority to “imported ‘articles,’ often from a single country,” and they impose time limits and caps on the tariffs the president can impose. Again, the representatives said, IEEPA demonstrates none of these characteristics.
The congressional representatives also supported the argument that Trump’s interpretation of IEEPA is barred under the major questions doctrine, which requires statutory grants of presidential authority be read narrowly when the text of the statute is ambiguous.
And they said that IEEPA’s instruction that the government may “regulate” imports doesn’t include the power to impose tariffs because IEEPA goes on to say that the government may also “regulate”’exports. But export tariffs are unconstitutional, they said. Whenever possible, a law must be interpreted in such a way as to render it constitutional, they pointed out.
They also said that Trump’s “on-again, off-again, up-then-down emergency tariffs” have contradicted both other tariff laws and prior trade agreements with other countries. But the government is charged with faithfully executing those laws and agreements, they said.
Finally, they said that IEEPA’s legislative history contradicts Trump’s position. Neither chamber’s report mentions tariffs -- except in reference to the Trading With the Enemy Act, the emergency powers law overturned by IEEPA because it was too broad.