The disappointing Supreme Court decision rules that a president cannot impose tariffs under the International Emergency Economic Powers Act — even though the statute uses the identical language that existed under the Trading with the Enemy Act that Richard Nixon used in 1971, and the 1977 House Report on IEEPA itself said the new grant of authorities ‘basically parallels’ section 5(b) of the old law.
The good news is that very similar tariffs could be levied by a president under Section 232 for national security, Section 301 for unfair trade practices, Section 201 safeguards, Section 122 balance-of-payments surcharges, Section 338 retaliatory duties and so forth.
So, let’s go do that instead. In the interim, the President should use full IEEPA embargoes while due diligence is performed under the other explicit tariff statutes by the Secretary of Commerce and U.S. Trade Representative.
Block trade if necessary with countries who are harming America while the new tariffs are drawn up and go through the processes Congress explicated.
Then, Congress should revise IEEPA to explicitly restore tariff authority for all presidents — require reauthorization every four or five years if needs be to get it passed — so it can be used as the powerful national security and foreign policy tool it was always meant to be.
Today’s decision completely ignored Congress’ explicit intent to retain all of the authorities of Trading With the Enemy Act, with the limits being a properly declared emergency with all due notice.
The limitation that Congress enacted in 1977 was to put the exercise of the emergency economic powers — which admittedly include the power to ‘regulate… importation’ — to the terms of the 1976 National Emergencies Act.
That was the limited intent of the IEEPA as Congress was highly attentive to the fact that it did not wish to hinder a future president’s ability to deal with a bona fide emergency in the ‘national security, foreign policy or econom[ic]’ sphere. That’s it. It never intended to overturn the President’s ability to impose TWEA-like tariffs, because it told us so. Justice Kavanaugh’s dissent is correct. Now Congress must fix it.
The implication at the moment is that a president can just suspend all trade with a sanctioned country under IEEPA but not levy tariffs to achieve similar policy goals. In 2025, President Trump ended eight wars abroad in part with the mere threat of tariffs.
If Congress cannot figure out how that kind of leverage is useful — and far less disruptive than total embargoes — for all presidents to achieve U.S. national security interests abroad, then maybe we need a new Congress that is not bought and paid for by foreign interests.
The President should remind Congress of how disruptive embargoes can be. Make every member vote on the record. And keep the embargoes in place until the legislation passes — because passing it will end the need for them.
Robert Romano is the Exeuctive Director of Americans for Limited Government
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