You might want to wait before you rush out to stock up on goods before our once and future president’s planned tariffs go into effect. While President-elect Donald Trump has announced that he will impose tariffs on his first day in office, there are plenty of practical and legal hurdles for Trump to clear before those tariffs could go into effect.
Trump’s proposed tariffs may violate the United States-Mexico-Canada agreement that was negotiated during his first administration.
In addition to challenges under domestic law, Trump’s proposed tariffs may violate the United States-Mexico-Canada agreement that was negotiated during his first administration.
The most likely legal challenges may be based on the argument that he stepped outside of the admittedly broad authority that Congress granted the president. This type of challenge might gain new traction with the current conservative court, which has embraced the so-called “major questions doctrine.” Under this doctrine, Congress must provide clear authorization before an executive agency decides an issue of national significance.
While history indicates that courts will generally defer to the president’s decisions in this area, a recent Supreme Court case could change that. In June, Chief Justice John Roberts wrote the opinion overturning the doctrine of “Chevron deference” and concluded that courts should exercise independent judgment and not defer to an executive agency’s interpretation of a congressional statute when it is ambiguous. This would allow courts to perform a more searching review of the actions that Trump takes under the congressional statutes authorizing him to impose tariffs in certain circumstances.
But let’s assume for a moment that Trump is able to make good on his campaign promises and impose tariffs on goods from Mexico, Canada and China. And let’s further assume that such tariffs, as many expect, make our economy worse. The blame would fall not just on the White House, but also with Congress.
For almost a century, Congress has ceded much of its constitutional authority to regulate foreign commerce to the president. Congress’ abdication of responsibility allows presidents to usurp that power and impose their own will on our global trading partners, with potentially disastrous results. This is not what the founders intended. Those who drafted our Constitution envisioned a government of truly shared power, between three coequal branches, including two political branches. Sadly, in the area of imposing tariffs, the legislative branch seems to have hobbled itself to the benefit of the executive branch.
Under the Constitution, it is Congress, not the president, that has the power to regulate foreign commerce and impose tariffs. But since the Great Depression, Congress has delegated much of its authority to the president.
In 1934, Congress passed the Reciprocal Trade Agreements Act, which gave the president the power to negotiate trade agreements and make certain changes to U.S. tariff rates without congressional approval. President Franklin D. Roosevelt thus became the first president to have the power to unilaterally alter tariffs.
Three decades later, in 1962, Congress passed the Trade Expansion Act. Section 232 of this act gives the president the power to change tariffs based on an investigation and determination by the Department of Commerce that some imports pose a national security threat. During his first administration, Trump used this power much more liberally than his predecessors and twice imposed tariffs on steel and aluminum pursuant to his power under Section 232. Trump might use Section 232 to impose tariffs on imports from Mexico and Canada, claiming that immigrants and drugs from those countries undermine our national security. Trump says the tariffs he proposes are a response to the flow of fentanyl and other illegal drugs into the United States. But Trump can’t wave a magic wand and use his Section 232 powers. He first has to direct the Department of Commerce to undertake an investigation, a process that normally takes months. In addition, while any such legal challenge would face an uphill battle, those seeking to thwart these tariffs could endeavor to show that imports from Mexico and Canada fail to pose a national security threat. More than decade after Congress passed the Trade Expansion Act, it once again relinquished its power over foreign commerce to the executive branch. More than a decade after Congress passed the Trade Expansion Act, it once again relinquished its power over foreign commerce to the executive branch with the Trade Act of 1974. Section 301 of this law gives the U.S. trade representative, a Cabinet member, the power to impose trade sanctions on foreign countries when they break trade agreements or harm U.S. commerce by taking actions that are “unjustifiable” or “unreasonable.” Trump could direct the trade representative to conclude that China has broken one or more trade agreements, thus providing a pathway to impose sanctions (aka tariffs) on goods imported from China. Here, again, a challenger could try, but may face an uphill battle, alleging that China did not take actions that would justify the imposition of tariffs under the 1974 law. Another, somewhat related legal challenge would be that Congress has simply ceded too much authority to the president. The Constitution gave this power to Congress, and then 150 years later, Congress gave that power away to another branch of government. Congress may not have had the power to do this. Under what’s called the nondelegation doctrine, Congress cannot simply throw up its hands and delegate its constitutional duties to the executive branch. However, in 1976, the Supreme Court unanimously ruled that a portion of Section 232 of the Trade Expansion Act was not an unconstitutional delegation of power from Congress to the president. Roberts’ conservative court, however, may be willing to revisit this case, or at least embrace a more robust view of the nondelegation doctrine. So don’t rush out to buy that electric car before the second Trump administration just yet. A federal judge or the Supreme Court may pump the brakes on Trump’s tariffs. But the best solution to this looming problem is not to rely on the judiciary. It is instead for Congress to reassert its constitutional authority and revoke some of the powers it gave away to the president.
Jessica Levinson is a Loyola Law School professor and MS NOW columnist. 
