Presidential Tariff Power via Executive Order, and Potential Constraints
The President of the United States wields considerable influence through executive orders and the authority to impose tariffs, tools that allow for rapid policy shifts without immediate congressional approval. In the one month since its inception on January 20st, 2025, the current administration has issued 73 executive orders. Many have been challenged in the courts and some have been stayed pending further litigation. We give here a short primer on executive orders, especially as they relate to tariffs, and available challenges to them. This expanded exploration delves into the historical evolution and legal foundations of executive orders, the processes for challenging them, and the complexities of presidential tariff powers, emphasizing how these instruments shape governance within a system of checks and balances.
Executive Orders: Scope and Challenges
Executive orders are formal directives issued by the President to instruct federal agencies and officers in executing laws or managing government operations. Their authority derives from Article II of the U.S. Constitution, which vests executive power in the President, as well as from specific powers delegated by Congress through legislation. Historically, executive orders were modest in scope—often routine instructions to agencies. For instance, President George Washington issued one of the earliest recorded executive directives in 1789, requesting government officials to provide operational reports. He issued eight in total during his two terms. Over time, however, their use has evolved into a powerful tool for enacting sweeping policy changes.
Executive orders in the modern era have addressed critical issues ranging from civil rights to national emergencies. President Franklin D. Roosevelt’s Executive Order 9066 (1942), which authorized the internment of Japanese Americans during World War II, exemplifies their potential breadth and controversy. More recently, President Barack Obama’s 2012 Deferred Action for Childhood Arrivals (DACA) order shielded certain undocumented immigrants from deportation, sparking debates over executive overreach. These examples illustrate how executive orders can influence immigration, environmental policy, and national security, often igniting public and legal scrutiny.
Judicial Review of Executive Orders
The judiciary serves as a critical check on executive orders when they are perceived to overstep constitutional or statutory bounds. Federal courts assess these directives against the Constitution, statutory authority, and precedents. A landmark case, Youngstown Sheet & Tube Co. v. Sawyer (1952), highlights this oversight. During the Korean War, President Harry Truman issued Executive Order 10340 to seize steel mills amid a labor dispute, arguing it was necessary for national defense. The Supreme Court, in a 6-3 decision, ruled that Truman lacked both constitutional and statutory authority, establishing a framework for evaluating presidential power (343 U.S. 579). Justice Robert Jackson’s concurring opinion introduced a three-tiered model—presidential power is at its peak when backed by Congress, weakest when contradicting Congress, and in a “zone of twilight” when Congress is silent—still cited today.
Another notable case is Trump v. Hawaii (2018), where the Supreme Court upheld a travel ban (Executive Order 13780) targeting predominantly Muslim countries. The 5-4 ruling affirmed broad presidential authority over immigration and national security, provided the order aligns with statutory powers like the Immigration and Nationality Act. These cases underscore that while judicial review can constrain executive orders, courts often defer to the executive in matters of security or statutory interpretation.
Congressional Oversight
Congress retains significant authority to counter executive orders through legislation. It can pass laws to nullify or modify an order’s effects, as seen when Congress attempted to limit President Richard Nixon’s bombing campaigns in Cambodia via the (Pub. L. 93-148). However, the President’s veto power complicates this process—overriding a veto requires a two-thirds majority in both the House and Senate, a high bar rarely met. For example, President Bill Clinton’s veto of a 1995 bill restricting his Haiti policy stood despite congressional opposition. This interplay reflects the constitutional balance of power, ensuring that no single branch dominates unilaterally.
Presidential Tariff Powers: Legal Basis and Limitations
The President’s ability to impose tariffs stems from delegated congressional authority, reflecting a compromise between legislative control over commerce (Article I, Section 8) and executive flexibility in trade policy. Two key statutes underpin this power:
- Trade Expansion Act of 1962 (Section 232): This law empowers the President to adjust tariffs if the Department of Commerce finds imports threaten national security. President Donald Trump invoked Section 232 in 2018, imposing 25% tariffs on steel and 10% on aluminum imports from countries like Canada and the European Union. The administration argued that reliance on foreign metals weakened domestic industries vital to defense (USTR, 2018). Critics, including affected industries, challenged the tariffs’ breadth, but courts largely upheld them, citing the statute’s deference to executive discretion (Fed. Energy Admin. v. Algonquin SNG, Inc., 426 U.S. 548, 1976).
- International Emergency Economic Powers Act (IEEPA): Enacted in 1977 (), IEEPA allows the President to regulate commerce during a declared national emergency. President Jimmy Carter first used it in 1979 to freeze Iranian assets during the hostage crisis. More recently, President Trump threatened tariffs on Mexico in 2019 under IEEPA, citing immigration as an emergency, though he later withdrew the plan. IEEPA’s flexibility has made it a go-to tool for sanctions, though its use for tariffs remains less common.
Checks and Challenges
Presidential tariff powers, while expansive, are not absolute. Courts can review whether actions align with statutory intent or breach international commitments, such as World Trade Organization (WTO) rules. In 2019, the U.S. Court of International Trade declined to block Trump’s steel tariffs, affirming Section 232’s broad scope (Am. Inst. for Int’l Steel v. United States, 376 F. Supp. 3d 1335). However, Congress can reclaim authority by amending or repealing these statutes—a rare move given veto threats. For instance, a 2019 Senate bill to limit Section 232 authority failed to achieve a veto-proof majority (S. 365, 116th Cong.).
Internationally, tariffs invite retaliation, as seen when China imposed counter-tariffs on U.S. agricultural goods in 2018, escalating a trade war. Such dynamics highlight economic and diplomatic limits to unilateral tariff actions.
Conclusion
Executive orders and tariff powers equip the President to act decisively in shaping U.S. policy, from domestic regulation to global trade. Grounded in constitutional and statutory frameworks, these tools reflect the executive’s role as a nimble responder to emerging challenges. Yet, they operate within what should be a robust system of checks—judicial review ensures legal fidelity, while congressional oversight and international pressures impose practical constraints. Historical cases like Youngstown and modern tariff disputes illustrate this balance in action, although a submissive judiciary and/or deferential Congress may effectively nullify limits on Presidential power. Understanding these mechanisms reveals not only the scope of presidential authority but also the intricate safeguards that define American governance.
As new tariff regulations continue to evolve, navigating these changes requires experienced legal counsel. At Liang + Mooney, PLLC, our seasoned tariff lawyers can answer your questions and concerns with sophisticated legal solutions. If you seek strategic counsel and insight into how these changes could affect your operations, we invite you to contact us to schedule a consultation.