Welcome to this week’s Weekly Constitutional, where a judgment or other formal document is used as a basis of a discussion about law and policy. This week’s document is the International Emergency Economic Powers Act, a United States statute from 1977.
The constitution of the United States provides that it is for Congress to set US international trade policy. This is in Article I section 8 clause 3: Congress is “to regulate Commerce with foreign Nations”. Another provision in the same Article provides that it is for Congress—and not the member states of the union—to have the final word on imports and exports.
This is not surprising. The framers of the constitution had reason to worry about an over-mighty executive setting tariffs and duties. This was part of the reason why the United States came into existence in the first place.
Under the separation of powers as set out in the constitution this was a power expressly reserved to Congress—not the states and not the president. Indeed, the US supreme court in hallowed cases such as Brown v Maryland (1827) jealously protected this congressional power to regulate trade—at least against the states.
So at first glance, it seems odd that the current president Donald Trump is effectively conducting a general international trade policy without regard to Congress. Article II of the constitution, which sets out the powers of the executive, does not provide for this as something the presidency can do.
Yet in a sequence of executive orders Trump is imposing significant tariffs against almost every country in the world. If this is not “regulat[ing] Commerce with foreign Nations” then what is? How can he do this when the constitution explicitly states otherwise?
The answer to the last question lies in a two-stage process. The first stage is for the president to invoke a 1977 statute called the International Emergency Economic Powers Act (“IEEPA”). Section 1701 of the IEEPA provides that the president can declare a national emergency when faced with “any 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”.
The provision adds that the powers the president may then exercise “may only be exercised to deal with an unusual and extraordinary threat with respect to which a national emergency has been declared for purposes of this chapter and may not be exercised for any other purpose”. And the IEEPA then in section 1702 sets out in general terms the sort of powers which a president may then exercise once a national emergency has been declared.
Since the statute was enacted by President Jimmy Carter it has been invoked many times by presidents from both parties, but usually to impose particular sanctions in respect of specified individuals or entities. A look down the list of declared emergencies and the measures adopted reveals little which is extraordinary. And it would appear that the IEEPA has never before been used to set tariffs.
Then we come to the second stage of the process. In particular, we come to Executive Order 14257 of 2 April 2025. Here the president first states that he finds “that underlying conditions, including a lack of reciprocity in our bilateral trade relationships, disparate tariff rates and non-tariff barriers, and U.S. trading partners’ economic policies that suppress domestic wages and consumption, as indicated by large and persistent annual U.S. goods trade deficits, constitute an unusual and extraordinary threat to the national security and economy of the United States”.
This is a remarkable assertion, for what the president is describing are the usual and ordinary trading conditions of the United States. As Trump has said elsewhere, this a structural issue that has been going on for many years.
And whatever “unusual and extraordinary” can be expanded to mean, it logically cannot mean the usual and the ordinary. But Trump has turned the phrase upside down.
Following the wording of the IEEPA Trump then locates the cause of the problem outside the United States: “That threat has its source in whole or substantial part outside the United States in the domestic economic policies of key trading partners and structural imbalances in the global trading system.” Here Trump is describing, well, the entire international trade system.
On this basis, Trump then says: “I hereby declare a national emergency with respect to this threat.” And so, at a stroke, the president takes it upon himself to regulate foreign commerce generally, regardless of Article I of the constitution. He is even setting tariffs for countries that have little or no trade with the United States, and thereby cannot be the cause of any economic “emergency”. In one notorious instance, he has imposed tariffs on the Heard and McDonald islands, which are populated by penguins and not by people. How can that conceivably be an emergency matter?
How can he get away with this? The answer is that Congress, which could curtail this power-grab at a stroke, is compliant if not complicit. There have been some minor moves of opposition by some senators, but nothing which looks like it can get the support of both houses of Congress. There are also reports of some possible legal challenges, but the federal courts, including the supreme court, are now largely nodding along with assertions of sheer executive power.
The reason Trump can do this is because he can. As with under another old statute, the Alien Enemies Act (AEA), a president can under the IEEPA can exercise general powers—and neither the legislature nor the judiciary are currently minded to stop him, regardless of the formal allocation of functions under the constitution.
It is for Congress to declare war, but Trump is using wartime laws like the AEA anyway. And it is for Congress to regulate trade, but Trump is conducting international trade policy by himself.
There are checks and balances and a separation of powers to stop this. They are simply not being used.
And so we end up with international economic emergency legislation being used to create an international economic emergency rather than abate one, which was presumably not the intention of the legislation.
