U.S. President Donald Trump has asserted that the International Emergency Economic Powers Act (IEEPA) gives him the authority to take unprecedented economic measures, including imposing tariffs, to address purported international emergencies. Courts are now hearing legal challenges to some of these measures while commentators struggle to make sense of their implications. The Trump administration’s uses of these national emergency powers have underscored the longstanding need for IEEPA reform. While litigation in the courts unfolds, Congress can take steps to revise IEEPA and strengthen transparency, accountability and oversight when the executive branch leverages U.S. economic powers in pursuit of national security and foreign policy goals.
Background on IEEPA
At issue are a wide array of sanctions programs that are a critical component of the U.S. national security and foreign policy toolkit. When resort to military force is not warranted, economic sanctions can exert U.S. economic power to address behavior contrary to U.S. national interests by foreign states or non-state actors as well as to demonstrate American resolve to confront international crises. IEEPA has been used to impose sanctions on Russia, China, Iran, North Korea, Libya, Venezuela, Myanmar, and other countries, as well as on foreign terrorists and transnational criminal organizations. Depending on their scope, IEEPA sanctions can prohibit or restrict U.S. trade or transactions with sanctioned countries or entities, limiting their access to the U.S. banking system (and thus the global financial system) and to U.S. goods, services, and funds, ideally to alter or deter their behavior.
Trump has now used IEEPA authority to impose for the first time large tariffs across the global economy for widely disparate reasons, including to address large and persistent trade deficits globally; to sanction Brazil’s efforts to prosecute its former president and to respond to the country’s purported human rights violations; and most recently, to push India to stop buying Russian oil. No president has used IEEPA throughout its 50-year history to impose tariffs or steer trade relations, in large part because the U.S. Constitution expressly provides Congress with the power to “lay and collect taxes, duties, imposts and excises.” As a result, tariff rate-setting has traditionally been reserved to trade negotiations that require congressional approval.
The Legal Debate Over IEEPA and Tariffs
There are two issues at play in the ongoing legal debate over the Trump administration’s use of IEEPA. First, there is a narrow interpretive question: whether the president can impose tariffs under IEEPA’s broad grant of authority to “regulate … importation,” notwithstanding the statute’s absence of an express reference to tariffs or duties. Second, there is a more existential question of whether there are legal boundaries that courts can supervise regarding the president’s ability to declare a national emergency under IEEPA.
Can the President Impose Tariffs Under IEEPA?
The first question will have one of two fundamental outcomes. One view is that IEEPA does not include tariff imposition among its list of eight enumerated powers given to the president once a national emergency is declared—and that Congress would not have omitted the word “tariff” if it had intended to include that authority among IEEPA’s enumerated powers. The second view is that the power to “regulate … [the] importation …of” goods, which is a phrase contained in IEEPA, encompasses the power to impose tariffs.
To adopt the second interpretation, a court would need to engage in some interpretive gymnastics. It would first need to go beyond the plain language of the statute and read the power to tax into the power to regulate, against a backdrop in which Congress itself has consistently legislated tariffs for generations. In doing so, the court would also need to overcome the “major questions doctrine,” which limits the executive branch’s ability to interpret a statute broadly to regulate matters of “major economic and political significance” — which likely includes the unprecedented tariffs imposed by the president on almost all U.S. trading partners in response to longstanding trade conditions.
The U.S. Court of Appeals for the Federal Circuit articulates a narrow third way between these two outcomes: that the specific “trafficking” tariffs imposed on China for its failure to stop “chemical precursor suppliers, money launderers, other [transnational criminal organizations], criminals at large, and drugs” and the “reciprocal tariffs” imposed on a swath of countries to address large and persistent trade deficits are not authorized by IEEPA, without foreclosing the use of IEEPA to impose tariffs “at all.”
Can Courts Limit the President’s Ability to Declare National Emergencies Under IEEPA?
The second question is more challenging to assess. Conventional wisdom for government national security lawyers—myself included—is that the president’s ability to declare a national emergency is (more or less) unbounded, given the president’s preeminent authority in the arena of national security and foreign affairs and the lack of a meaningful, justiciable standard for courts to apply. Federal courts will understandably be unlikely to take on this issue out of due regard for the separation of powers, particularly where, as Justice Robert Jackson stated in Youngstown Sheet & Tube Co. v. Sawyer, the President acts “pursuant to an express or implied authorization of Congress.”
As the ongoing IEEPA litigation in the U.S. Court of Appeals for the Federal Circuit has highlighted, courts face challenges in developing judicially manageable standards to constrain presidential decision-making, particularly in the context of an international emergency. The president leads a co-equal branch of government and one with greater power and expertise in foreign affairs, so courts have good reason to tread lightly.
There are various principles that a court could potentially invoke to test whether a president’s decision to declare and carry out a national emergency makes sense. For example, was the action made in “good faith”? Was there a “rational relationship” between the national emergency and the measures imposed? Did Congress expressly authorize the action, or did the president act in a “zone of twilight”? Or, as the dissent in the U.S. Court of Appeals for the Federal Circuit in VOS Selections recently stated, was there “an action as crossing the statutory boundary, after scrupulous and humble recognition of all the predictive, evaluative, and other judgment-call-based elements that, though people may passionately hold contrary views, are not subject to objective proof of error.” Faced with these difficult judgments, courts have declined to review the national emergency altogether, finding it to be a political question.
The deference historically afforded by courts in this area has perhaps encouraged or tacitly endorsed the longstanding practice by presidents across the 50 years since IEEPA’s enactment to declare national emergencies with only cursory public explanations for their actions. Presidents regularly declare national emergencies with a summary paragraph or two explaining the factual basis for the emergency in the chapeau of an executive order. The reasoning is often conclusory, and there is little fact-finding or analysis: Iran sponsors terrorism and is developing nuclear weapons; the import of conflict diamonds fuels armed conflict and human rights violations in Africa; Zimbabwe’s political leadership undermines its democratic processes, contributing to the breakdown of the rule of law; Russia’s invasion of Ukraine undermines peace and stability. The reasoning and factual basis given for a particular national emergency has generally been fairly scant.
Let’s consider an admittedly absurd example to illustrate the problem: Under current law, it would not be straightforward for the courts to decide whether a national emergency is appropriate to impose tariffs on imports of, for example, white tennis shoes. The president could declare that such shoe imports constitute an unusual and extraordinary threat to U.S. national security, foreign policy, or the economy. They could state that tariffs are needed to ensure a sufficient supply for national security purposes, or that white tennis shoe imports exacerbate trade deficits. Even more absurdly, the president could maintain that the increased albedo resulting from too many white tennis shoe imports could blind the U.S. military’s pilots. Just maybe?
In each of these absurd cases, it is not obvious whether the courts would review the national emergency declaration at all, what standards they would apply, how courts would come out on any such review, or how they would go about rejecting the president’s findings. Administrations have historically exercised IEEPA’s significant powers where there is some consensus on the need for action and the authorities used, and litigants have infrequently challenged the president’s declaration of a national emergency. Courts have to date mostly punted on this decision-making, noting a considered preference to stay out of national security and foreign policy judgments. Even with a need or opportunity to delve into the facts underlying a national emergency, courts may be reluctant to ask the Executive branch to develop a factual record for a host of reasons, including questions about the applicability of the Administrative Procedure Act, the absence of express authority to do so under IEEPA, and the broader context with respect to the political questions doctrine.
If absurd cases like the white tennis shoe example might vex jurists to an extent, courts will almost certainly balk at assessing whether large and persistent trade deficits can constitute a national emergency—even after many years of economic diplomacy. Likewise, courts may be disinclined to second-guess whether the Brazilian prosecutor’s decision to prosecute former President Jair Bolsonaro, along with other actions by the Brazilian government purportedly to restrict free speech, undermine U.S. national security or foreign policy. Some commentary has deemed these national emergencies to be outrageous, but will courts be able to draw effective lines to discipline abuse of the IEEPA authorities?
Checks introduced by Congress in legislative reforms in 1976 to the president’s ability to impose and continue a national emergency have proven illusory. The National Emergencies Act requires termination of a national emergency after one year unless the president transmits a notice to Congress continuing the national emergency. The form and content of the continuation notice are not prescribed in the legislation, and the reports, transmitted largely by the Department of the Treasury on an annual basis, are often devoid of salient information on the need to continue the emergency. Congress ostensibly plays a role by having statutory authority to terminate a national emergency through a joint resolution of Congress. This congressional check, however, is limited given that only a joint resolution enacted as law can terminate a national emergency—in practice, a two-thirds majority of both the House and the Senate that can survive a presidential veto.
Going Forward: Congressional Reform of IEEPA
Congress can make sensible changes to IEEPA to provide greater transparency, accountability, and meaningful judicial oversight while preserving presidential discretion to use IEEPA as it has been used successfully in the past: to leverage U.S. economic tools in support of foreign policy and national security goals in circumstances that are truly unusual and extraordinary.
Wide discretion, but with meaningful limits: First, the president should continue to have broad authority to declare national emergencies to respond to unusual and extraordinary threats to U.S. national security or foreign policy—but that authority should be limited in time. The president should be limited to 180 days during which they can impose emergency economic measures. After 180 days, the national emergency terminates, subject to the qualifications described below.
The 180-day period provides enough time for the ordinary legislative and policy-making process to take hold. Congress could pass a law to take appropriate action in response to the underlying threat. If there is a congressional stalemate, the revised IEEPA could provide an alternative mechanism as a safeguard—but not just a routine extension. Under a statutorily-prescribed process, the Secretary of State, as the lead of a committee composed of the Secretaries of the Treasury, Defense, and other relevant departments, could be required to publish a finding within 45 days of the national emergency declaration supported by an administrative record that provides the factual basis for the measures imposed.
This is not novel; existing committees such as the Committee on Foreign Investment in the United States and agencies such as Commerce, in the context of determinations under Section 232 of the 1962 Trade Expansion Act to restrict imports of goods that present a national security threat, can take economic measures to respond to national security challenges based on careful analysis, due process, or published findings, supported by administrative records.
Transparency, accountability, and judicial oversight: Importantly, the revised IEEPA should impose transparency, accountability, and judicial oversight requirements on the process. In addition to the requirement for a fact-based administrative record, consideration could be given to an expedited notice and comment process—to permit stakeholders to provide input on unintended consequences—and an analysis of the economic and political impacts.
The administrative record should be reviewable by the federal courts under the Administrative Procedure Act (APA), potentially under a clearly erroneous standard for findings of fact, and an arbitrary and capricious standard for any legal determinations or measures. APA provisions that provide exemptions from its procedures where foreign affairs matters are involved should not apply to this process. Courts should be able to apply special procedures to handle and review any classified information in the administrative record.
And, importantly, the national emergency finding and measures imposed would have to be reviewed and updated every 2 years, subject to the same transparency, accountability, and oversight requirements.
Achieving Flexibility, Transparency, and Oversight is Possible
These suggested changes to IEEPA would preserve presidential flexibility to respond to sudden changes in the national security and foreign policy arena while enhancing transparency and independent oversight for responses that evolve from crises to long-term international challenges. The changes would be highly unlikely to undermine sanctions important to U.S. national security, such as the Iran or Russian sanctions programs. There would be greater administrative burdens on the government, although there should be ample material to make this burden manageable, even with short timeframes, and there will be increased potential for litigation than is likely now.
Overall, the reforms would drive more purposeful policy making by requiring the executive branch to take a hard look at its sanctions programs and justify its decisions to the public to the maximum extent practicable. Lastly, it would give judges a framework in a national security and foreign policy context for doing what they do best—assessing facts and making decisions based on clearly articulated standards.
And what impact would these changes have on a national emergency declared to impose tariffs on white tennis shoe imports? While it would not guarantee that such orders would be invalidated, it would force the executive branch to justify such actions with a fact-based explanation for why extraordinary measures are needed and give the courts the power to review those decisions. That would be an improvement over the status quo, in which it is often taken for granted that IEEPA provides a blank check to the president.
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