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HOW THE PRESIDENT IS MISUSING EMERGENCY POWERS TO IMPOSE WORLDWIDE
TARIFFS  
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Elizabeth Goitein
April 9, 2025
Brennan Center for Justice
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_ Concocting an emergency to advance economic and foreign policy
goals is an abuse of power. _

, Justin Sullivan/Getty

 

President Donald Trump declared
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national emergency last week to address what he described as harmful
foreign trade and economic practices. Invoking the International
Emergency Economic Powers Act, he announced new, sweeping tariffs —
taxes that are paid by U.S. importers and then typically passed on to
customers. A baseline 10 percent tariff on goods from almost every
country worldwide took effect on Saturday, and higher rates for goods
from dozens of countries started on Wednesday.

Leaving aside the economic policy concerns, using an emergency
declaration to impose tariffs is a clear abuse of presidential
emergency powers. It’s the latest in a long list of overreach and
lawlessness by the current administration.

IS THIS AN APPROPRIATE USE OF EMERGENCY POWERS?

No. Emergency powers are designed to let a president respond swiftly
to sudden, unforeseen crises that Congress cannot act quickly or
flexibly enough to address. Presidents can rely on these powers to
create temporary fixes until the crisis passes or Congress has time to
act. Emergency powers are not meant to solve long-standing problems,
no matter how serious those problems may be. Nor are they intended to
give a president the ability to bypass Congress and act as an
all-powerful policymaker.

Under the National Emergencies Act, a declaration of national
emergency unlocks a menu of 150 statutory powers
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which the president can choose. One of the most powerful is the
International Emergency Economic Powers Act. That law can only be
invoked, however, when the national emergency stems from an “unusual
and extraordinary threat” to national security, foreign policy, or
the economy. Trump’s invocation of the law in this case rests on the
specious premise that our trading relationships with each and every
country in the world — including those he has dismissed
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nations that “nobody has ever heard of” — pose an “unusual and
extraordinary threat” to the United States.

By no stretch of the imagination can long-standing trade relationships
be considered an unforeseen emergency. If Trump believes that global
tariffs could benefit the United States, he needs to make his case to
Congress. Lawmakers can then follow the regular legislative process to
decide whether to adopt his plan. That is the proper course of action
here — not manufacturing an emergency to push the president’s
economic and foreign policy agenda.

DOES THE INTERNATIONAL EMERGENCY ECONOMIC POWERS ACT AUTHORIZE
TARIFFS?

Probably not. Even if there were a legitimate emergency, the president
is limited to the powers Congress has conferred. The International
Emergency Economic Powers Act was passed to enable the president to
impose economic sanctions on hostile foreign actors. It includes a
long list of actions the president may take, but the word
“tariffs” appears nowhere on that list. No president has ever used
this law to impose tariffs before, and there is no mention of tariffs
in its legislative history. That makes it safe to assume that Congress
never intended for the law to be used in this way.

HOW HAVE PRESIDENTS MISUSED THESE EMERGENCY POWERS IN THE PAST?

This is not the first time a president has used emergency declarations
to push policy goals despite the lack of a sudden crisis. In his first
term, Trump issued an emergency declaration over migration at the
U.S.–Mexico border at a time when unlawful border crossings were
hovering near a 40-year low. He used the declaration to secure funds
for the border wall after Congress had repeatedly refused his funding
requests. President Joe Biden, during the Covid-19 pandemic, tried to
use emergency powers to forgive student debt — a serious problem for
many decades — in the face of congressional inaction.

The International Emergency Economic Powers Act, in particular, has
long been used as a routine foreign policy tool
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than a true emergency power. It underlies dozens of sanctions regimes,
some of which have been in place for decades. Trump’s imposition of
tariffs, however, takes misuse of this law to a new level. Previous
sanctions have been targeted at specific governments, countries, or
practices (such as international terrorism or cybercrime). Trump’s
action imposes penalties on every country in the world.

COULD COURTS STOP THE PRESIDENT FROM USING EMERGENCY POWERS TO IMPOSE
TARIFFS?

It’s possible. Courts typically are highly deferential to
presidential emergency designations and certain executive branch
decisions on foreign policy, and they often conclude that such matters
present “political questions” that courts cannot answer. But this
deference has its limits. The “political question” doctrine does
not preclude courts from stepping in when the president makes an
obvious mistake or implements measures that are manifestly
unauthorized by law. Those backstops
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apply here.

Even if courts are reluctant to probe whether an emergency or
“unusual and extraordinary threat” exists, the separate question
of whether the International Emergency Economic Powers Act authorizes
tariffs is a straightforward one for which no special deference is in
order. If courts find that the law does not authorize tariffs, Trump
cannot rely on it for that purpose, emergency or not.

CAN CONGRESS STOP THE TARIFFS IMPOSED BY THIS EXECUTIVE ORDER?

Unfortunately, it is very hard for Congress to block presidential
abuses of emergency powers. As originally enacted, the National
Emergencies Act allowed Congress to terminate emergency declarations
using a “legislative veto” — a law that goes into effect without
the president’s signature. In 1983, however, the Supreme Court held
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legislative vetoes are unconstitutional. Today, if Congress wants to
terminate an emergency declaration, it effectively requires a
veto-proof supermajority in both chambers.

Last week, the Senate passed
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bill that would terminate the national emergency declaration Trump had
previously issued to levy tariffs on imports from Canada. But even if
the House were to follow suit (which is unlikely), a simple majority
of Congress no longer has the ability under the National Emergencies
Act to rein in presidential abuse of emergency powers.

WHAT CAN BE DONE TO STEM ABUSES OF PRESIDENTIAL EMERGENCY POWERS?

The Brennan Center has proposed
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number of reforms to emergency powers. One key proposal is to amend
the National Emergencies Act to require emergency declarations to
expire after 30 days unless approved by Congress. This would shore up
Congress’s role as a check against presidential overreach. The
Brennan Center has also proposed
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the International Emergency Economic Powers Act to curb its potential
for abuse — including by prohibiting its use for tariffs.

Of course, enacting these reforms under President Trump will likely be
difficult for the same reason it will be difficult to terminate his
emergency declarations. But efforts to reform emergency powers
garnered extremely broad bipartisan support in both the first Trump
administration and the Biden administration. While there are
undeniable challenges, the goal is potentially achievable and well
worth pursuing.

_ELIZABETH “LIZA” GOITEIN is senior director of the Brennan
Center’s Liberty and National Security Program. _

_Goitein is a nationally recognized expert on presidential emergency
powers, government surveillance, and government secrecy. Her writing
has been featured in major newspapers and magazines including the New
York Times, the Washington Post, the Wall Street Journal, USA
Today, the Los Angeles Times, the Atlantic, and the New Republic,
and she has appeared frequently on MSNBC, CNN, and NPR. She has
testified on several occasions before the Senate and House Judiciary
Committees. _

_Before joining the Brennan Center, Goitein served as counsel to Sen.
Russ Feingold, chair of the Constitution Subcommittee of the Senate
Judiciary Committee, and as a trial attorney in the Federal Programs
Branch of the Civil Division of the Department of Justice. _

_Goitein graduated from Yale Law School and clerked for Judge Michael
Daly Hawkins of the U.S. Court of Appeals for the Ninth Circuit. In
2021–22, she was a member of the inaugural class of senior
practitioner fellows at the University of Chicago’s Center for
Effective Government._

_Goitein is admitted to the bar in the State of Massachusetts. Her
practice in Washington, DC, is limited to practice before U.S. courts
as provided in DCCA Rule 49(c)(3)._

_THE BRENNAN CENTER FOR JUSTICE is an independent, nonpartisan law and
policy organization that works to reform, revitalize, and when
necessary, defend our country’s systems of democracy and justice.
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_Today, we are in a great fight for the future of constitutional
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We work to craft and advance a transformative reform agenda
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_The Brennan Center has built a distinct model to advance legal and
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_In all this, we take our cue from Abraham Lincoln’s admonition at
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_“Public sentiment is everything. With public sentiment, nothing can
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public sentiment goes deeper than he who enacts statutes or pronounces
decisions. He makes statutes and decisions possible or impossible to
be executed.”_

_Truly effective legal and policy change requires winning, first and
foremost, in the court of public opinion._

* Tariffs
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* Emergency Powers
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* Presidential powers
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* law
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* U.S. Constitution
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