NYU's Brennan Center Files Amicus Brief Discussing IEEPA's Legislative History
In a May 20 amicus curiae brief for California’s challenge of the International Emergency Economic Powers Act tariffs, NYU’s Brennan Center laid out the legislative history of IEEPA, arguing it doesn’t support a ruling that the law was meant to grant the president tariff powers (State of California v. Donald J. Trump, N.D. Cal. # 3:25-03372).
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The act was meant to limit the president’s emergency powers after Congress decided its predecessor, the Trading With the Enemy Act, was too broad, the Brennan Center said.
It said that, generally, the president is granted emergency powers because Congress is too slow-moving to take immediate action in response to a crisis. These presidential powers “play a unique role in our constitutional system”; they aren’t explicitly defined in the Constitution, so Congress has to grant them, it said.
The current framework for presidential emergency powers, which allow the president to declare a national emergency and gain “access to statutory authorities that would otherwise lie dormant,” was created during World War I. But until the passage of the National Emergencies Act in 1976, “[t]here was little transparency or congressional oversight” of the president’s use of such powers, the center said.
After '70s-era scandals, such as Watergate and the bombing of Cambodia, resulting from executive branch overreach, the Senate formed a committee that discovered a number of old emergency declarations still in effect, “creating ‘virtually permanent states of emergencies.’” These emergencies granted the president powers to, for instance, seize property, institute martial law and “manage every aspect of the lives of all American citizens,” the center said.
As a result, Congress passed the National Emergencies Act. That law lets Congress end national emergencies at any point by concurrent resolution.
The law doesn’t define “national emergency,” but this isn’t, as the U.S. argues in the current IEEPA cases, meant as a conveyance of presidential discretion. NEA’s committee report instead determined that “the definition of when a President is authorized to declare a national emergency should be left to the various statutes which give him extraordinary powers.”
“In other words, Congress viewed the specific criteria and limitations within the various emergency authorities that the president may invoke in a national emergency as key constraints on the executive power presidents retained under the NEA,” it said. “The legislative history of the NEA thus underscores the importance of strictly interpreting and enforcing those criteria and limitations.”
IEEPA followed in 1977, a year after NEA, in response to presidential abuse of TWEA. The committees of both chambers of Congress found that “‘[s]uccessive Presidents [had] ... seized upon’ the TWEA’s open-ended language” to use it as “essentially an unlimited grant of authority for the President,” the Brennan Center said. IEEPA was meant to provide a national emergency power subjected to much more “substantive restrictions,” it said, such as a “high bar” for invoking the statute and a specific, comprehensive list of presidential power over foreign transactions -- a list that doesn’t mention tariffs, it said.
The history of both these statutes demonstrates they were designed to limit the president’s emergency powers, it said.
“Allowing a president to expand these powers beyond their already sweeping scope by inferring powers not explicitly conferred would create exactly the kind of danger that Congress sought to mitigate,” it said.
The Brennan Center also called tariffs an “unlikely subject for emergency powers.” Emergencies, it said, are “rare and brief,” which is why the president, not Congress, generally takes the lead in addressing them. But tariffs are used to “effectuate longer term policies,” it said.