Matt Levine: Nondelegation

Yesterday Donald Trump unilaterally imposed big tariffs due to his own idiosyncratic understanding of economics. But why does he get to do that? The US Constitution says that “the Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises.” Congress, not the president, gets to set tariffs.

Over the years, though, Congress has mostly handed that power over in a series of laws delegating tariff authority to the president. Yesterday’s tariff announcement relies on one of those laws, the International Emergency Economic Powers Act of 1977 (IEEPA), which allows the president to declare a “national emergency” due to “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” and respond to that emergency in various ways including by regulating or prohibiting imports. “No president had used IEEPA to impose tariffs until this year,” notes the Congressional Research Service in a useful report, but now Trump has “declared that foreign trade and economic practices” — all of them — “have created a national emergency” allowing him to make up whatever tariffs he wants.

The law also allows Congress to reverse the president’s actions, and in fact the US Senate already voted to block some of Trump’s previous tariffs on Canada, though the House of Representatives is unlikely to vote on the measure. You could imagine that changing in response to the latest round of blanket tariffs, but you’d have to work pretty hard to imagine it.

One other thing that I think about, though, is the “nondelegation doctrine.” This is an old legal theory that Congress cannot hand over its legislative power to the executive branch: Executive agencies can interpret and carry out the law, but they can’t make law. This theory has, for nearly a century, been pretty dead: The Supreme Court has rejected pretty much every modern nondelegation-doctrine challenge to agency rulemaking, and in fact the CRS notes that “Supreme Court decisions upholding tariff laws have become landmarks in the development of a broader ‘nondelegation doctrine’ concerning the extent to which Congress may lawfully delegate authority to the executive branch.”

But that might be changing: US courts, including the Supreme Court, are increasingly interested in reviving the nondelegation doctrine. The IEEPA — as interpreted in the Trump tariffs anyway — is an exceptionally broad delegation of powers: Only Congress has the constitutional power to impose tariffs, but apparently in the IEEPA it gave the president power to impose any tariffs he wants with no guidance or limits. Seems like an interesting nondelegation case? It is plausible that the current state of US constitutional law is “administrative agencies can’t make securities regulations or environmental rules, but of course Donald Trump can do whatever tariffs he wants.” But it’s not necessarily true. Some importer should bring a nondelegation case! Could be fun!

(Disclosure-brag: As I’ve mentioned before, my wife has argued a nondelegation case in the Supreme Court, so I have a certain personal connection to this frankly pretty speculative theory.)