Presidential Authority on Tariffs: Can the President Unilaterally Impose Them?

By Joe Wallace

In the ongoing debate over trade policy, the question of presidential authority to impose tariffs has resurfaced with particular intensity. Former President Donald Trump’s frequent pronouncements about raising or lowering tariffs on foreign goods have led to accusations that he is exceeding his constitutional authority. The issue is not a new one—presidents have long used tariffs as a tool of economic policy—but does the President of the United States truly have unilateral power to impose tariffs? Or does he require congressional approval?

Constitutional Basis and Congressional Authority

The U.S. Constitution grants Congress the exclusive power to regulate commerce with foreign nations under Article I, Section 8. This includes setting tariffs, duties, and trade policies. However, over the past century, Congress has delegated much of this authority to the executive branch through a series of statutes that allow the president to take specific tariff-related actions under certain conditions.

The key legislative acts that empower the president to impose tariffs without prior congressional approval include:

1. The Trade Expansion Act of 1962 (Section 232)
   This law allows the president to impose tariffs on imports deemed a national security threat. President Trump invoked this authority in 2018 to justify tariffs on steel and aluminum, arguing that reliance on foreign metals weakened U.S. security.
2. The Trade Act of 1974 (Section 301)
   Under this statute, the president can impose tariffs to retaliate against unfair trade practices by other nations. The Trump administration used this law extensively against China, citing intellectual property theft and forced technology transfers.
3. The International Emergency Economic Powers Act (IEEPA) of 1977
   This act gives the president broad authority to regulate trade during a declared national emergency. While primarily used for economic sanctions, it could theoretically justify tariffs if framed as an emergency action.
4. The Smoot-Hawley Tariff Act (1930) and the Reciprocal Trade Agreements Act (1934)
   These older laws set precedents for executive tariff authority but were largely superseded by later trade agreements and policies that promoted tariff reduction.

Historical Precedents: How Have Presidents Used Tariffs?

Historically, U.S. presidents have used tariffs both as an economic tool and as leverage in foreign policy:

• Ronald Reagan (1980s): Used Section 301 to impose tariffs on Japanese electronics in response to unfair trade practices.
• George W. Bush (2002): Imposed steel tariffs under Section 201 of the Trade Act of 1974 but later rescinded them after the World Trade Organization (WTO) ruled them illegal.
• Barack Obama (2009): Imposed tariffs on Chinese tires under Section 421, which allows targeted measures against surges of imports from China.

Trump’s aggressive use of tariffs, particularly against China, represented an expansion of executive power in trade policy. His administration argued that previous presidents had underutilized existing laws and that the global economic landscape required stronger action. Critics, however, contended that his unilateral tariff decisions disrupted global markets, harmed American consumers, and overstepped constitutional authority.

Do Presidents Need Congressional Approval?

The short answer is: it depends. In most cases, the president does not need immediate congressional approval to impose tariffs because Congress has already granted the authority through the laws mentioned earlier. However, this authority is not unlimited.

• Challenges in Court: Businesses and trade groups frequently challenge presidential tariffs in federal courts. While some challenges succeed, courts have generally upheld presidential discretion under existing laws.
• Congressional Pushback: Lawmakers can revoke or modify tariff authority, though this requires bipartisan cooperation. In 2019, Congress considered limiting presidential tariff power through the Bicameral Congressional Trade Authority Act, but it did not pass.
• International Trade Agreements: The U.S. is bound by commitments to the WTO and trade agreements like NAFTA (now USMCA). Unilateral tariffs can lead to retaliatory measures and WTO disputes, as happened during the Trump-China trade war.

Conclusion: Expanding Executive Power in Trade Policy?

While Congress technically holds the power to regulate trade, decades of legislative delegation have given presidents broad discretion in imposing tariffs. Trump’s actions were not without precedent, but they highlighted how much power the executive branch wields in trade policy. Whether future presidents will continue this trend or whether Congress will reclaim some of its authority remains an open question.

For now, the president can still impose tariffs under existing laws without direct congressional approval. However, the political and economic consequences of such actions ensure that every tariff decision remains a subject of intense scrutiny and debate.