Nondelegation and the separation of powers: What they mean for Trump’s tariffs

• President Donald Trump has justified his tariffs by citing the International Emergency Powers Act (IEEPA), however that Act does not authorize such tariffs
• The power to create laws and levy taxes lies with the Congress
• Trump’s power grab appears to violate the separation of powers framework established by the U.S. Constitution

President Donald Trump has ignited a firestorm with his ever-shifting tariff edicts. He imposed wild new tariffs by invoking the International Emergency Economic Powers Act (IEEPA). But the IEEPA does not authorize the president to impose sweeping tariffs; it does not authorize tariffs at all. Even if the IEEPA did, that purported authorization would be an unconstitutional delegation of Congress’s power. Several pending lawsuits challenge the president’s use of the IEEPA and the constitutionality of his tariff executive orders.

The United States Constitution sets out the architecture of government. Articles I, II, and III of the Constitution each begin with a Vesting Clause that assigns the legislative, executive, and judicial powers, respectively, to separate branches of the federal government. This separation of powers framework drew from the ideas of John Locke and William Blackstone, among others. The Framers of the Constitution sought to prevent the consolidation of power in any single branch of government for fear an overly powerful branch could become tyrannical.

Implicit in the tripartite structure of government is the premise that one branch may not delegate its sphere of power to any other. As Justice Clarence Thomas wrote in a concurring opinion in Department of Transportation v. Association of American Railroads (2015), “[T]he separation of powers is, in part, what supports our enduring conviction that the Vesting Clauses are exclusive and that the branch in which a power is vested may not give it up or otherwise reallocate it.”

The legislative power to create laws resides in the Congress. The nondelegation doctrine amplifies the basic principle by limiting the power of Congress to delegate its lawmaking power. The question arises over whether laws that give the executive branch discretion in executing the law as enacted also call for the executive branch to exercise a form of legislative power.

The Supreme Court has held that there are two ways a delegation of lawmaking authority to an agency can violate the nondelegation doctrine: (1) Congress failed to provide an “intelligible principle” by which the agency can exercise its authority, or (2) the power granted to the agency is vast beyond measure, akin to the ability to “regulate the entire economy on the basis of no more precise a standard than stimulating the economy by assuring fair competition.” These standards come from two cases decided in 1935.

In Panama Refining Co. v. Ryan, the Court held unconstitutional a section of the National Recovery Act permitting the president to ban interstate transportation of quantities of oil in excess of production limitations in state law. In A.L.A. Schechter Poultry Corp. v. United States, the Court unanimously struck down a different section of the same statute that granted the president nearly unfettered power to regulate the economy by approving “codes of fair competition” for industry.

Trump’s tariff torrent is on even less sound legal footing because, unlike these 1935 cases, the president cannot point to a specific statutory greenlight from Congress. Presumably, this is because Congress itself knows that Article I, Section 8 grants Congress the power to impose “Taxes, Duties, Imports and Excises,” and Congress cannot constitutionally reassign that job to the president.

Trump doesn’t point to a statute giving him permission to start the tariff war. He can’t. No such statute exists. Rather, Trump points to the IEEPA and hopes the world won’t notice that that law does not give him the authority to impose tariffs.

The IEEPA gives the president authority to take certain actions, like imposing sanctions or freezing assets, if he declares a national emergency in response to a foreign national security, foreign policy, or economic threat. The law specifies many different actions the president can take, but tariffs aren’t one of them. Because the IEEPA doesn’t authorize the president to impose tariffs, it does not include any “intelligible principle” by which he is to exercise tariff authority.

If there are any constitutional limits to delegation at all, they apply here. President Trump claims virtually limitless authority to impose massive tax increases and start a worldwide trade war. This is the most sweeping usurpation of legislative power by a president since the Supreme Court invalidated the National Recovery Act in 1935. Trump is claiming a tariff power that is vast beyond measure.

Trump’s interpretation of IEEPA would make it the equivalent of those delegations the Supreme Court previously struck down in Panama Refining and Schechter. As explained in the 2001 case Whitman v. American Trucking Associations, in one the delegation “provided literally no guidance for the exercise of discretion,” and in the other the delegation “conferred authority to regulate the entire economy on the basis of no more precise a standard than stimulating the economy by assuring ‘fair competition.’”

Trump claims the opioid crisis justifies his tariff power grab, but his own statements show the real reason for the tariffs is to reduce American trade deficits. If longstanding, perfectly normal, bilateral trade deficits qualify as an “emergency” and as an “unusual and extraordinary threat,” the same can be said of virtually any international economic transaction that the president disapproves of for virtually any reason. The president would have the power to impose any level of tariffs on goods or services from any country, for any purpose, any time he feels like it.

The sheer breadth of this claimed power — to impose tariffs at any level on any country at any time, at levels that could crash the global economy — counsels against reading IEEPA to confer such an extreme delegation of authority.