Bills
| 3.23.22

Should Congress Limit the President’s Power to Impose Tariffs Using Economic Emergency Powers? (S. 2413)

Do you support or oppose this bill?

What is S. 2413?

(Updated November 11, 2021)

This bill — the Trade Certainty Act of 2019 — would limit the president’s authority to use emergency economic powers to impose duties or tariffs on imports to the U.S. Specifically, it would remove the president’s authority to impose duties or tariffs under the authority of the International Emergency Economic Powers Act (IEEPA). 

Argument in favor

The president’s tariff authority under the International Emergency Economic Powers Act (IEEPA) is overly broad and needs to be limited. While presidents historically haven’t used the IEEPA to impose tariffs, President Trump tried to impose tariffs against Mexico in May 2019. Removing that authority would keep all presidents, regardless of political party, from hurting American businesses & consumers based on political whims.

Argument opposed

Presidents have historically had broad bilateral authority to set and pursue trade policies that benefit the U.S. and their administrations’ priorities. Taking this authority away from presidents will hamstring future administrations’ ability to set and pursue trade policies that benefit American businesses and workers.

Impact

Trade; tariffs; DOD; Congress; the president; the International Emergency Economic Powers Act (IEEPA); and the president’s authority to impose tariffs under under the International Emergency Economic Powers Act (IEEPA).

Cost of S. 2413

A CBO cost estimate is unavailable.

Additional Info

In-Depth: Sponsoring Sen. Tom Carper (D-DE) introduced this bill to ensure that presidents — regardless of the party holding the White House — can’t use the International Emergency Economic Powers Act (IEEPA) to unilaterally impose tariffs: 

“The threat of tariffs alone has the ability to do a great deal of harm to our economy by causing immense disruption and uncertainty for American businesses and workers. Tariffs should only be imposed as a part of sound and strategic trade policy, not levied on a whim because they do not require congressional approval. I’m proud to author this common sense bill with Senator Toomey that makes small, incremental changes to ensure the rules of the road are clear going forward when it comes to applying tariffs. This isn’t a partisan issue. Tariffs impact every corner of our country, red states and blue states alike. We need to put American consumers and our economy ahead of politics and make sure we protect the people we all represent – no matter who sits in the White House.”

When he met with representatives from four small and mid-sized manufacturing businesses to discuss the impacts of the Trump administration’s trade policy decisions and tariffs on October 21, 2019, Sen. Carper discussed the need for this bill and another piece of legislation he is sponsoring in the current Congressional session, the Kaine-Carper Reclaiming Congressional Authority Act (S.899), to protect businesses against needless, politically motivated tariffs: 

“It has been 19 months since the White House and China first began trading tariff threats, and businesses across the U.S. – including right here at home in Delaware – are feeling the effects. Tariffs should only be imposed as a part of sound and strategic trade policy, not levied on a whim. This isn’t a partisan issue. Tariffs impact every corner of our country, red states and blue states alike. That is why I have introduced two bills this year that will help us put American consumers and our economy ahead of politics – no matter who is in the White House. It’s so important, as we continue pushing for bipartisan solutions in Washington, that the voices of business owners are heard because they are the ones on the front lines. We cannot allow those who drive our economy to be collateral damage in the ongoing trade wars.”

Original cosponsor Sen. Pat Toomey (R-PA) adds: 

“The Constitution assigns responsibility on trade to Congress and that’s where it should remain. IEEPA gave the president authority to apply financial sanctions in response to an unusual or extraordinary threat to our national security. IEEPA was never intended to delegate to the president unilateral tariff-making power. Our bipartisan legislation ensures the executive branch cannot use IEEPA as a justification for taxing Americans who buy foreign goods.”

This legislation passed the Senate Homeland Security and Governmental Affairs Committee (HSGAV) by voice vote as part of an amendment to the ARTICLE ONE Act (S.764 / H.R.1775) sponsored by Sen. Mike Lee (R-UT). It has eight bipartisan Senate cosponsors, including six Democrats and two Republicans. Its House companion, sponsored by Rep. Suzan DelBene (D-WA), has two Democratic House cosponsors.

Lawfare writers Scott R. Anderson, a David M. Rubenstein fellow in Governance Studies at the Brookings Institution, and Kathleen Claussen, an Associate Professor at the University of Miami School of Law and former Associate General Counsel at the Office of the U.S. Trade Representative, note that “Trump is likely to veto any effort to rescind his national emergency or narrow the IEEPA, unless Congress can somehow incorporate it into broader legislation that would be difficult for the president to oppose.” They express doubt about legislation narrowing the IEEPA’s ability to gain the two-thirds support necessary in both chambers of Congress to override Trump’s veto.


Of Note: The International Emergency Economic Powers Act (IEEPA) gives the president broad authority to regulate a range of economic transactions after a national emergency declaration. It, like the Trading with the Enemy Act (TWEA) that it branched from, is central to the modern U.S. sanctions regime. 

Over the years, IEEPA has become an important means of imposing economic-based sanctions. Presidents have frequently used IEEPA to restrict a variety of international transactions; and the subjects of restrictions, frequency of use, and duration of emergencies have all expanded over time. At first, presidents targeted foreign states or their governments — over time, they’ve increasingly used IEEPA to target individuals, groups, and non-state actors (such as terrorists) involved in malicious cyber-enabled activities.

As of March 1, 2019, presidents had declared 59 national emergencies involving IEEPA, of which 29 were still ongoing. Typically, national emergencies invoking IEEPA last nearly a decade (some have lasted significantly longer, though: the first state of emergency declared under the NEA and IEEPA, which was declared in response to the taking of U.S. embassy staff as hostages in Iran in 1979, is still ongoing). 

Until the Trump administration, no president had used IEEPA to impose tariffs on products imported from a specific country, or on products imported to the U.S. in general. However, IEEPA’s similarly to TWEA and its relatively frequent use to ban imports and exports suggests that this could happen.

In May 2019, President Trump cited the IEEPA when he announced plans to place tariffs on all imports from Mexico (America’s third-largest trading partner) for issues unrelated to trade. Elizabeth Goitein, an expert on presidential power at the Brennan Center for Justice and co-director of its Liberty and National Security Program, called this use of the IEEPA “unprecedented.” In a May 31, 2019 NPR interview, she explained: 

“IEEPA has not been used by any previous president to impose tariffs on goods from another country. So it's really a first. Now, there was a law before IEEPA, the Trading with the Enemy Act, which in many ways was the precursor to IEEPA. And that act was used to impose tariffs. So I'm certain that the administration is going to say that IEEPA can be and should be used in the same way. Then ultimately, I think this will be challenged in court, and it will come down to a court's reading of what Congress's intent was in passing this law.”

Earlier in the same NPR interview, Goitein also observed that presently, “The International Emergency Economic Powers Act…  is an incredibly powerful authority that allows the president to declare a national emergency with respect to any unusual and extraordinary threat to the national security foreign policy or economy of the United States that has its source, in substantial part, from overseas. So as long as the president declares that there is such a threat and identifies that threat, he can then invoke IEEPA and can take, really, a staggering range of economic actions and impose severe economic penalties on people or entities or countries that are designated as being associated in some way with that threat.”

Ultimately, the tariffs that Trump threatened in May weren’t put into place.


Media:

Summary by Lorelei Yang

(Photo Credit: iStockphoto.com / alexsl)