How Emergency Powers Hijacked Trade—and the Constitution
Trump's IEEPA tariff blitz triggers the biggest constitutional crisis in trade law history
🚨 How Emergency Powers Hijacked Trade—and the Constitution
Trump's IEEPA tariff blitz triggers the biggest constitutional crisis in trade law history
By Prof. Barry Appleton | Appleton’s Clause and Effect
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TL;DR: President Trump just used "emergency powers" to impose sweeping tariffs on Canada, Mexico, and China—bypassing Congress entirely. Eight federal lawsuits are challenging what may be the most brazen executive overreach in modern trade history. Here's why the courts will likely strike down this constitutional power grab.
It seems that the U.S. presidency has rediscovered the seductions of economic imperial fiat—this time using the International Emergency Economic Powers Act (IEEPA)¹ as the blunt instrument. Cloaked in the rhetoric of national security and fentanyl panic, President Trump's latest volley of tariffs has triggered a constitutional standoff of historic proportions.
But unlike 1971's gold panic or 2001's terror doctrine, the emergency now invoked is as strategic as synthetic. This time, the courts are not looking the other way.
💥 The "Emergency" Tariff Blitz: What Is at Stake
On April 2, 2025, President Trump declared a national emergency under IEEPA and imposed sweeping new tariffs:
· 25% on all goods from Canada and Mexico (excluding USMCA-compliant energy goods, which face 10%)
· 20% on all imports from China (up from an initial 10%)
· 25% on any country importing Venezuelan oil
· Contingent duties threatened against any country with digital services taxes or "unfair regulatory systems"
Unlike the familiar Section 301 or 232 tariffs, these measures were taken without any formal investigation, stakeholder process, or statutory constraints.
Think about that for a moment: $1.3 trillion in North American trade restructured by presidential decree.
⚖️ The Litigation Landscape: Eight Courts, Eight Challenges
As of May 2025, eight federal lawsuits have been launched against the IEEPA tariffs.² While the Trump Administration desperately seeks to consolidate them in the friendly Court of International Trade, federal judges in California, Oregon, Montana, and Rhode Island may have their own views on jurisdiction.
The Legal Army Mobilizing:
🏪 V.O.S. Selections, Inc. v. Trump (Court of International Trade)
· Direct challenge: tariffs under IEEPA are ultra vires and unconstitutional
🏛️ Oregon et al. v. Trump (Court of International Trade)
· State coalition asserting nondelegation and major questions violations
🌉 California v. Trump (N.D. California)
· Focus: economic harm to innovation sectors and ports
📝 Emily Ley Paper Inc. v. Trump (N.D. Florida)
· Small business owner shows real-world pain of abstract "emergencies"
🏔️ Webber v. DHS (D. Montana)
· Blackfeet Nation members challenging the disruption of tribal trade rights
🗽 New York et al. v. Trump (D. Rhode Island)
· Multi-state challenge to the emergency declaration itself
🛢️ Importers United v. Trump (Court of International Trade)
· Targeting Venezuelan oil-linked tariffs as ideological overreach
⛏️ Fortune Minerals Ltd. v. USTR (Court of International Trade)
· Canadian firm arguing critical minerals tariffs violate USMCA
Each case invokes a different constitutional lens but paints a coherent portrait of statutory abuse together.
🔍 IEEPA: Not Built for This
The administration's defense rests on an ensemble of alarms—fentanyl, foreign coercion, and supply chain fragility. But none of these threats is geographically or economically tailored to the tariffs imposed.
A synthetic emergency cannot justify synthetic authority. Sovereignty concerns in the digital domain do not empower a tariff on Saskatchewan potash.
The Statutory Reality Check
Let us be clear: IEEPA does not authorize tariffs. It never has.
The statute's operative language, 50 U.S.C. § 1702(a)(1), empowers the President to "investigate, regulate, or prohibit" certain transactions, but nowhere mentions "impose," "levy," or "collect"—the operative verbs of taxation.
When Congress wanted to grant tariff authority elsewhere, it did so explicitly. Compare:
19 U.S.C. § 2411(c) (Section 301's specific tariff authorization)
IEEPA's complete silence on tariffs
When Congress passed IEEPA in 1977, it specifically limited the broad trade powers abused under the Trading with the Enemy Act. The House Report was unequivocal: IEEPA was for blocking assets, regulating bank transfers, and targeting hostile regimes, not for revenue measures or domestic protectionism.
This is why tariffs appear nowhere in the statute, not even once.
🎯 Major Questions and Jackson's Wisdom
The courts have a doctrinal compass in hand: the Major Questions Doctrine. When a president invokes emergency powers to restructure $1.3 trillion in North American trade, he is not patching a hole in policy—he is redrawing the map.
Legitimate grounds can exist, but such a move demands clear congressional sanction, which IEEPA does not provide.
The Youngstown Framework
This brings us to the Supreme Court's Youngstown Sheet & Tube Co. v. Sawyer (1952). ⁸ Justice Jackson's legendary three-part test remains the gold standard:
🟢 Category 1: President acts with congressional authorization 🟡 Category 2: Congress is silent—"zone of twilight"
🔴 Category 3: President acts against congressional will—lowest ebb of authority
Trump's use of IEEPA to likely sidestep existing trade laws places him firmly in Category 3. Congress has legislated precisely in Sections 301, 232, and 201 of the Trade Act. The President chose IEEPA precisely because those laws limit him.
🛡️ The Administration's Likely Defense—And Why It Fails
The administration will likely argue that tariffs constitute "regulation" of transactions under IEEPA's broad language.
This interpretation fails for three reasons:
Surplusage Canon: It would render Congress's careful tariff procedures in other statutes superfluous—a result constitutional interpretation forbids
2. Legislative History: IEEPA's drafters explicitly rejected broad trade authority
3. Revenue Origination: It would eviscerate the constitutional requirement that "all Bills for raising Revenue shall originate in the House of Representatives" (Art. I, § 7, cl. 1)
⚔️ The Doctrinal Arsenal: MQD, Youngstown, and Structural Integrity
A shared thesis unites these eight lawsuits: tariffs are Congress's prerogative. Article I, Section 8 does not stutter. No president, emergency or not, can conjure tax authority out of silence.
The legal tools are formidable:
🎯 Major Questions Doctrine: The Supreme Court's recent decisions in West Virginia v. EPA and Biden v. Nebraska⁹ leave little doubt—if the Executive wants to transform the economy, it must point to explicit congressional language
⚖️ Youngstown Framework: Trump's tariff gambit falls into Justice Jackson's third category
🏛️ Nondelegation Doctrine: If IEEPA allows such sweeping power, it must be struck down—or narrowed to avoid handing Congress's taxing pen to the White House. ¹⁰
🚫 Why Emergency Powers Cannot Trump the Legislative Process
Congressional Power by Default
This moment is unusual because Congress does not need to lift a finger to reclaim its authority. It already has.
It created specific pathways—safeguards, sunset clauses, procedural hearings—for imposing tariffs. It placed those powers under legislative control because tariffs are taxes, and taxes require congressional consent under Article I of the Constitution.
The courts are being asked to enforce the constitutional floor, not to intervene in policy, but to enforce the Constitution. If Congress spoke clearly, the Executive could not whisper an alternative.
And if the courts do not act? There is a specific and difficult path for Congress to use a two-thirds majority in both houses to pass a qualified joint resolution to overturn the presidential emergency action. ¹¹
🔥 Why It Matters: The Stakes Could Not Be Higher
If the courts allow the Executive to use IEEPA as an open-ended tariff tool, every future administration could impose protectionist taxes without a vote, a hearing, or even an emergency that meets the dictionary definition. ¹²
That is not emergency governance. It is autarky by decree.
And if allowed to stand, it will not just damage trade—it will neuter Congress and invert the logic of representative government. ¹³
Emergency powers were never meant to carry the economy on their shoulders. And they certainly were not meant to sneak tariffs through the back door while Congress watches from the cloakroom.
🚨 The Real Emergency Is Constitutional
Let us be clear: this is not about trade policy. It is about preserving the architecture of the American Republic.
IEEPA does not say "tariff." It does not whisper "import tax." Its drafters could have included such words, but they did not. The President cannot insert them now by way of interpretive alchemy.
Nor is fentanyl from China or migration from Venezuela sufficient to justify a duty on Saskatchewan potash.¹⁴ The facts do not fit the frame. And law, properly applied, still cares about such things.
⚖️ Conclusion: Courts as Constitutional First Responders
For once, the judiciary may not need to invent a new doctrine. It needs only to remember the old ones.
IEEPA is a scalpel. President Trump has used it like a cudgel. These lawsuits offer the courts a rare chance to reaffirm first principles: that emergency powers are not blank checks, and that trade cannot be conducted by tantrum.
The courts' response will likely determine whether emergency powers remain tools of genuine crisis management or become instruments of policy preference. Given the Major Questions Doctrine's trajectory and the clear statutory limits on IEEPA, these challenges have strong prospects for success, particularly in circuits that have applied MQD aggressively.
Should Congress rouse itself to reclaim its fiscal birthright? All the better. But the beauty of constitutional design is that it does not wait on political courage. The courts have been handed the gavel and the scalpel. They must now remind all branches that emergency powers were built for narrow incisions, not fiscal amputations.
A well-placed ruling may suffice to re-anchor the ship of state before its constitutional moorings are swept out to sea.
🔗 Want More Legal Analysis?
💬 Comment below: Which lawsuit do you think has the best chance of success?
Prof. Barry Appleton is a Professor at New York Law School's Center for International Law, Fellow at the Balsillie School of International Affairs, and author of the Appleton Clause and Effect newsletter. Follow @BarryAppleton for more constitutional analysis. Copyright 2025 - Barry Appleton
📚 Footnotes
¹ The International Emergency Economic Powers Act, 50 U.S.C. §§ 1701–1708, does not mention tariffs or duties. See H.R. REP. NO. 95-459, at 10–11 (1977) ("IEEPA was not intended to provide general authority to regulate international trade").
² Washington Trade & Tariff Letter, "Legal Challenges to IEEPA Tariffs Stack Up," April 25, 2025.
³ See V.O.S. Selections, Inc. v. Trump, No. 1:25-cv-00066 (Ct. Int’l Trade filed Apr. 14, 2025); State of Oregon v. Trump, No. 1:25-cv-00077 (Ct. Int’l Trade filed Apr. 23, 2025); State of California v. Trump, No. 3:25-cv-03372 (N.D. Cal. filed Apr. 16, 2025); Emily Ley Paper Inc. v. Trump, No. 3:25-cv-00464 (N.D. Fla. filed Apr. 3, 2025); Webber v. U.S. Dep’t of Homeland Sec., No. 4:25-cv-00026 (D. Mont. filed Apr. 4, 2025); State of New York v. Trump, No. 1:25-cv-00039 (D.R.I. filed Jan. 28, 2025); Fortune Minerals Ltd. v. Office of the U.S. Trade Representative, docket pending (Ct. Int’l Trade filed Apr. 2025). See also Importers United v. Trump, No. 25-00081 (Ct. Int’l Trade motion to consolidate pending). For discussion of these filings and the constitutional and jurisdictional tensions they expose, see “Trump Tries to Push Tariff Fight to Trade Court With Better Odds,” Bloomberg (Apr. 23, 2025); and “IEEPA and Tariffs: A Legal Disconnect,” Chambers and Partners (Apr. 15, 2025).
4. V.O.S. Selections, Inc. v. Trump, Case No. 25-00066
5. State of Oregon, et al. v. Trump, Case No. 25-00077.
⁶ Importers United v. Trump, Case No. 25-00081.
⁷ The USMCA contains specific dispute resolution procedures that these unilateral tariffs appear to violate. See USMCA Art. 31.3 (general exceptions), Art. 2.4 (elimination of tariffs).
⁸ Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952). Justice Jackson's concurrence at 635–38 lays the foundation for the tripartite framework.
⁹ West Virginia v. EPA, 597 U.S. 697 (2022); Biden v. Nebraska, 600 U.S. 477 (2023).
¹⁰ See Jed Shugerman, "Emergency Powers and the Rule of Law: The Structural Danger of IEEPA Abuse," Columbia Law Review Forum (2025).
¹¹ 50 U.S.C. § 1706(b) requires a joint resolution passed by two-thirds of both houses to terminate emergency authorities, an extremely high bar. This procedural difficulty underscores why courts must enforce statutory limits on emergency powers. See Harold Hongju Koh, "The National Security Constitution," 104-108 (1990).
¹² The Supreme Court has emphasized that emergency powers must be tied to actual emergencies. See Korematsu v. United States, 323 U.S. 214, 246 (1944) (Jackson, J., dissenting). Julien Gester, Libération, April 8, 2025, Interview with Prof. Barry Appleton. « Guerre commerciale de Trump : «C’est la loi du caprice présidentiel qui gouverne, plutôt que celle du droit » Guerre commerciale de Trump : «C’est la loi du caprice présidentiel qui gouverne, plutôt que celle du droit» – Libération.
¹³ For analysis of how emergency tariffs circumvent the constitutional revenue origination requirement, see Rebecca M. Kysar, "On the Constitutionality of Tax Treaties," 38 Yale J. Int'l L. 1 (2013).
¹⁴ Canada supplied 38% of U.S. potash imports in 2024, making it critical for American agriculture. The national security rationale for taxing this agricultural input appears particularly weak.