Tariffs have rarely been considered small talk — until 2025, when they became everyone’s problem. And for good reason. Since taking office on January 20, 2025, President Trump’s aggressive tariff agenda has sent shockwaves through the global economy. While I typically focus on economic sanctions and export controls—areas of law traditionally distinct from tariffs—the Trump administration’s recent Executive actions on tariffs have blurred those lines. At the center of that convergence is the President’s invocation of the International Emergency Economic Powers Act (“IEEPA”), 50 U.S.C. §§ 1701-1708, as the legal foundation for his sweeping tariff measures. Until now, no United States president had ever used IEEPA to impose tariffs, as the statute has been reserved for economic sanctions targeting foreign adversaries.
This article examines whether IEEPA provides sufficient legal authority for President Trump’s tariff-related executive orders—including his controversial “reciprocal tariffs” order, Executive Order (“E.O.”) 14257, as amended. The short answer? It’s complicated. The Executive Branch’s assertive use of IEEPA for tariffs reflects not only its own ambitions, but also Congress’s long-standing pattern of delegating emergency powers with few substantive constraints—leaving the judiciary as the last remaining check on the statute’s outer limits.
Summary of the Tariff-related Executive Orders Thus Far
Since taking office for his second term, President Trump first issued a series of tariff-related Executive Orders targeting Canada (E.O. 14193), Mexico (E.O. E.O. 14194), and China (E.O. 14915), citing authority under IEEPA, the National Emergencies Act (“NEA”), and the Trade Act of 1974. Subsequent Executive Orders temporarily paused tariffs on Canada (E.O. 14197) and Mexico (E.O. 14198), and increased tariffs on China from 10% to 20% (E.O. 14228), which at the time of this article’s publication is either much higher in a tit-for-tat or reduced as part of some deal. increased to much higher figures. These actions build on President Trump’s Proclamation 10866, which declared a national emergency over the threat posed by illegal drugs, and invoked his IEEPA authority to address the unusual and extraordinary threat to the national security and foreign policy of the U.S. stemming from the perceived inaction by Canada, Mexico, and China in combating drug trafficking and related transactional crime.
On March 24, 2025, President Trump issued E.O. 14245 under IEEPA, the NEA, and § 301 of the Trade Act, building on the longstanding national emergency declared with respect to Venezuela (E.O. 13692). The order threatens a 25% tariff on all U.S. imports from any country identified as having imported Venezuelan oil—directly or indirectly—on or after April 2, 2025. Originally declared by President Obama in 2015 pursuant to his IEEPA authority—and serving as the foundational authority for the U.S. Department of the Treasury’s Office of Foreign Assets Control’s (“OFAC”) Venezuela sanctions program—E.O. 13692 authorized economic sanctions against Venezuela in response to threats posed by its government’s malign conduct. E.O. 14245 extends that framework, citing the Maduro regime’s ongoing malign conduct, including transnational crime originating from Venezuela, and the country’s destabilizing activities.
On April 2, 2025 (dubbed “Liberation Day”), President Trump issued E.O. 14257 pursuant to his IEEPA, NEA, § 301, and § 604 authorities. The Order imposed, among other measures, a baseline 10% ad valorem tariff on imports from all countries not already subject to existing tariff actions, with higher, country-specific tariffs for certain nations identified in the Order’s annex. As with the earlier tariff-related Executive Orders targeting Canada, Mexico, and China, E.O. 14257 devotes an unusually lengthy preamble to justifying the asserted “national emergency” necessary to invoke IEEPA’s authorities — perhaps the longest such justification I have seen in any sanctions or trade-related Executive Order. Rather than attempt to summarize its extensive findings, I will quote directly from the White House’s accompanying Fact Sheet, which framed the rationale as follows:
“…to address the national emergency posed by the large and persistent trade deficit that is driven by the absence of reciprocity in our trade relationships and other harmful policies like currency manipulation and exorbitant value-added taxes (VAT) perpetuated by other countries.”
The unusually lengthy preambles of these Executive Orders—in sharp contrast to those underpinning OFAC’s traditional economic sanctions programs—speak volumes. Each order devotes its preamble and initial section to establishing that the asserted threat qualifies as an “unusual and extraordinary” threat to the national security, foreign policy, or economy of the United States, as required to declare a national emergency for purposes of IEEPA. An apt aphorism comes to mind: “The longer the preamble, the shakier the premise.” Here, the shaky premise is the President’s extensive effort to justify a national emergency as the basis for invoking his broad IEEPA authorities—a justification that appears difficult to reconcile with IEEPA’s legislative history and statutory scope.
Given the rapid pace of President Trump’s tariff actions, by the time you’re reading this article, there may be many amendments to the foregoing and/or new IEEPA-based orders on tariffs.
IEEPA’s Purpose
Congress enacted IEEPA in 1977 (Public Law No. 95-223), with a primary motive to rein in the Executive Branch’s extensive unilateral powers under IEEPA’s predecessor, the Trading with the Enemy Act (“TWEA”). Originally passed during World War I, TWEA authorized the President to restrict trade with enemy nations during wartime. In 1933, however, the Emergency Banking Relief Act amended TWEA to extend these powers to peacetime national emergencies, vastly expanding presidential authority under § 5(b).
By the 1970s, Congress grew increasingly concerned that the proliferation of national emergency declarations — dating back to 1933 — undermined the separation of powers and threatened constitutional liberties. The Senate’s Special Committee on the Termination of the National Emergency warned:
“These hundreds of statutes delegate to the President extraordinary powers, ordinarily exercised by the Congress… [which] confer enough authority to rule the country without reference to normal Constitutional process.”
While IEEPA preserved much of the President’s substantive authority under TWEA’s § 5(b), Congress imposed new procedural safeguards to ensure greater oversight and accountability. These requirements, codified in § 1703 of IEEPA, were designed to reassert congressional involvement in the exercise of emergency economic powers.
With this historical context in mind, I will briefly summarize the President’s authority under IEEPA granted to him by Congress in § 1701 and § 1702, as well as Congress’ role through § 1703 and § 1706.
Presidential Authorities under IEEPA
Subject to certain specified statutory exemptions, § 1702 of IEEPA authorizes the President to impose far reaching regulations and prohibitions on cross-border trade and financial transactions that are subject to U.S. jurisdiction. However, there is no mention of “tariffs.” The closest such authorities get to the concept of “tariffs,” is where § 1702(a)(1)(B) authorizes the president to “…regulate…any…importation…of…any property in which any foreign country or a national thereof has any interest by any person, or with respect to any property subject to the jurisdiction of the United States…”
§ 1701 of IEEPA specifies the circumstances in which he President may use the foregoing authorities. Specifically, the § 1702 authorities “…may be exercised to deal with any unusual and extraordinary threat, which has its source in whole or in substantial part outside the United States, to the national security, foreign policy, or economy of the United States, if the President declares a national emergency with respect to such threat.”
Congressional Oversight under IEEPA
§ 1703 of IEEPA incorporates several Congressional oversight measures on the President, which include:
- Requiring that the President, “…in every possible instance, shall consult with the Congress before exercising any of the authorities granted by [IEEPA] and shall consult regularly with the Congress so long as such authorities are exercised.”
- Requiring the President whenever he exercises any of his IEEPA authorities, to immediately transmit to Congress a report with certain specifications, including, inter alia: (1) the circumstances which necessitate such exercise of authority; and (2) why the President believes those circumstances constitute an unusual and extraordinary threat, which has its source in whole or substantial part outside the United States, to the national security, foreign policy, or economy of the United States.
§ 1706(b) of IEEPA had initially preserved for Congress the ability to terminate by concurrent resolution pursuant to the NEA (50 U.S.C. § 1622), the underlying national emergency that was used to trigger them. However, the Supreme Court’s decision in INS v. Chadha, 462 U.S. 919 (1983), invalidated the use of a concurrent resolution to terminate executive action without presentment to the President. As a result, any congressional effort to terminate a national emergency now requires either Presidential approval or a two-thirds veto override by both chambers, which are very tough hills to climb in practice. As is often the case with broad delegations of statutory authority, what Congress giveth, it finds exceedingly difficult to take back.
Challenging the President’s Use of IEEPA to Impose Tariffs
Whether the President may lawfully rely on IEEPA to impose tariffs will ultimately turn on congressional action or future court challenges. The first such legal challenge under IEEPA was filed on April 3, 2025, by the New Civil Liberties Alliance against President Trump’s Executive Orders imposing tariffs on China. Furthermore, on April 2nd, the Senate also passed a joint resolution in attempts to terminate the national emergency underlying the Executive orders for the Canada-related tariffs, which reportedly is likely to fail any vote in the House. More such actions likely to follow in the immediate future given the sweeping implications of all these tariffs.
Key questions in any challenge to the President’s use of IEEPA include:
- Does IEEPA authorize the President to Impose Tariffs?
Section 1702 of IEEPA grants the President broad powers to regulate or prohibit imports, arguably encompassing tariffs. Yet IEEPA’s legislative history does not suggest Congress intended to authorize tariffs through this statute. To the contrary, as Congress was attempting to curtail the President’s unilateral authority under TWEA—under which President Nixon had surreptitiously attempted to use TWEA for imposing tariffs principally at U.S. allies (See also, United States v. Yoshida Int’l, Inc., 526 F.2d 560 (C.C.P.A. 1975)—arguments against interpreting any such intent by Congress would be more favorable.
Moreover, the Constitution specifically grants Congress—not the Executive Branch—the power to impose tariffs (i.e., “Duties” and “Imposts” in Art. I, Sec. 8), which Congress has since delegated to the President through statutes. Such delegation has been upheld in numerous court decisions—beginning with a foundational 1928 Supreme Court decision in of J.W. Hampton, Jr. & Co. v. United States, 276 U.S. 394 (1928), so long as it provides an “intelligible principle” to guide the President’s exercise of such powers. Accordingly, Congress has enacted multiple tariff-specific statutes—including § 232 of the Trade Expansion Act of 1962 and § 301 of the Trade Act of 1974—that carefully define when and how tariffs may be imposed, including in the national security context (See e.g., § 232). These limitations on the President’s ability to impose tariffs are much more restrictive than the sweeping grant of economic powers under IEEPA.
Against this backdrop, reading IEEPA as an alternative source of tariff authority not only is unsupported by its legislative history but also risks rendering Congress’s tariff-specific statutes superfluous. If the sweeping emergency powers of IEEPA could be used to bypass the detailed processes and limitations set forth in statutes like § 232 and § 301, then the carefully constructed legislative framework governing tariffs—rooted in Congress’s exclusive constitutional authority over duties and imposts—would be reduced to mere surplusage. Therefore, relying on IEEPA to impose tariffs blurs the line between emergency economic powers and the distinct, carefully circumscribed tariff authorities that Congress has expressly delegated to the President through separate statutes.
- Even if Tariffs Are Permissible Under § 1702 of IEEPA, Are the Declared Threats Sufficient to Invoke § 1701?
Even assuming the President may impose tariffs under § 1702 of IEEPA, a separate question arises under § 1701: whether the threats identified in the relevant Executive Orders meet the statutory threshold of an “unusual and extraordinary threat” to the national security, foreign policy, or economy of the United States. Whether an identified threat is indeed “unusual and extraordinary” in nature may still be up for a scholarly debate, as IEEPA fails to define those terms. However, legislative history for IEEPA from the House indicates that this language “…emphasizes that such powers should be available only in true emergencies…” Another question that needs to be considered is to what extent is the identified threat sourced in whole or substantial part outside the United States, because a threat that is predominately of a domestic nature is less likely to suffice.
Many of President Trump’s tariff-related Executive Orders invoke highly unconventional threats. For example, E.O. 14257 — the broadest of these orders — targets a wide range of countries, including U.S. allies, based on longstanding trade deficits, lack of reciprocity in trade relations, currency manipulation, and foreign VAT policies. But this raises a critical question: if these conditions have persisted for decades — with origins traceable to the post-World War II era — can they truly be characterized as an “emergency”? Emergencies, by their nature, demand prompt action — a pattern reflected in past OFAC-administered sanctions programs, which have generally followed shortly after the emergence of an identifiable threat (See e.g., E.O. 12170 of 1979 for Iran; E.O. 13660 of 2014 for Russia’s annexation of Crimea; E.O. 14014 of 2021 for Burma’s military coup).
Similarly, the Executive Orders targeting Canada, Mexico, and China cite the influx of illicit drugs into the United States as the basis for declaring a national emergency. Yet this is neither a new threat nor a previously unaddressed one. The U.S. already maintains a robust counter-narcotics sanctions framework — administered by OFAC — based on various statutory authorities and Executive Orders, none of which are mentioned in these tariff-related orders.
By contrast, E.O. 14245 — threatening tariffs on countries importing Venezuelan oil — presents a comparatively stronger case for invoking IEEPA. Unlike the other orders, E.O. 14245 builds upon the pre-existing national emergency declared in 2015 under E.O. 13692, issued by President Obama pursuant to implement the Venezuela Defense of Human Rights and Civil Society Act of 2014. That statute expressly directed the President to use IEEPA to address Venezuela’s rapidly deteriorating human rights and economic conditions — reflecting a coordinated effort across all branches of government to respond to an evolving crisis.
Concluding Remarks
Further judicial challenges to the Trump administration’s use of IEEPA to impose tariffs—and the regulatory implementation of those Executive Orders by federal agencies—are all but certain. Historically, courts have shown significant deference to the Executive Branch’s use of IEEPA, given Congress’s broad delegation of emergency economic powers to the President. See e.g., Dames & Moore v. Regan, 453 U.S. 654 (1981); United States v. Dhafir, 461 F.3d 211 (2nd Cir. 2006); United States v. Amirnazmi, 645 F.3d 564 (3rd Cir. 2011). However, no Federal court has ever addressed the questions posed above: (1) whether IEEPA authorizes the imposition of tariffs as set forth in the Executive orders at issue; (2) whether the threats identified in those Executive orders suffice to invoke § 1701 of IEEPA to address them (with the exception perhaps of the Venezuela-related E.O. 14245). How courts confront these unresolved questions will carry significant implications — not only for the future scope of IEEPA, but for the broader balance of power between Congress and the Executive in matters of trade, national security, and emergency economic policy.
Furthermore, as explored in a prior article regarding the end of Chevron deference with Loper Bright Enterprises v. Raimondo, 144 S.Ct. 2244 (2024), agencies implementing these Executive orders will now receive little to no judicial deference in their interpretation of IEEPA for any agency actions (i.e., implementation and administration of Customs-related regulations) under the Administrative Procedure Act (“APA”). With the ambiguities of IEEPA detailed above in relation to President Trump’s tariff-related Executive orders, reviewing courts are now instructed to employ their own statutory construction in resolving such issues as opposed to deferring to an agency’s interpretation of IEEPA, the pre-Chevron status quo. This also gives courts more of an opening to shape the outer limits of IEEPA in the context of tariffs.
While Congress may be heavily restricted in its ability to curb the President’s use IEEPA for his various tariff-related Executive orders because of the veto-override of the President in any attempts by Congress to terminate the underlying national emergencies, the judiciary remains the final institutional check on the scope of the President’s authority under IEEPA.
The author of this blog post is Kian Meshkat, an attorney specializing in U.S. economic sanctions and export controls matters. If you have any questions please contact him at [email protected].
