As the IEEPA was conceived, Congress could have countermanded a president’s declaration of an emergency. We need to revive such mechanisms.

I agree with Charlie that Congress could, in theory, eliminate the president’s power to unilaterally decree tariffs. What, after all, is there to disagree about? Constitutionally speaking, as Charlie points out, the power to lay and collect tariffs is vested in Congress, period.

Moreover, what President Trump has done in imposing tariffs (in this case, against our neighbors Canada and Mexico) by invoking the 1977 International Emergency Economic Powers Act (IEEPA) (see Section 1701, et seq.) pushes that statutory envelope historically far. Early last year (before Trump became a strong favorite to win the election in November), the Congressional Research Service (CRS) observed: “No President has used IEEPA to place tariffs on imported products from a specific country or on products imported to the United States in general.”

The CRS surmised, nevertheless, that such an imposition of tariffs “could happen” because the IEEPA is similar to the World War I–era Trading with the Enemy Act (TWEA), which gave presidents even more-sweeping power and had frequently been used to ban imports and exports. Plus, in 2019, during his first term, President Trump had threatened to impose tariffs on Mexico under the IEEPA; he relented when Mexico agreed to take actions to shore up border security that he was demanding, but the threat appeared viable.

It seems ironic, given the regularity with which the IEEPA has been used by presidents since its enactment, that it was actually conceived (in conjunction with the 1976 National Emergencies Act) as a vehicle to rein in executive abuses under the TWEA. Why hasn’t it worked? I believe it’s because of the elimination of a core part of the law: the legislative veto.

Practically speaking, it would be impossible to achieve the congressional reversal of the tariffs that Charlie envisions because, as he explains, doing so would require an act of Congress that the president would sign or that lawmakers would support in numbers sufficient to override a presidential veto (a two-thirds supermajority vote in each chamber). Trump would never sign such an act and his supporters in Congress are too fearful of defying him (even though, as an institutional matter, they should).

Under the IEEPA as conceived, however, climbing that impossibly steep mountain would not be necessary.

At the time of its enactment, the IEEPA (like about 200 other laws on the books) featured a provision that empowered Congress to end an emergency declared by the president with a concurrent resolution — i.e., a declaration by both chambers of Congress that needed neither the president’s signature nor supermajority approval margins.

In its 1983 decision in Immigration and Naturalization Service v. Chadha, the Supreme Court under then–Chief Justice Warren Burger, ruled 7–2 that the such provisions were unconstitutional. The majority reasoned that congressional vetoes were legislative acts and, therefore, to pass constitutional muster, they had to be passed by both chambers and signed by the president, or enacted over a presidential veto by the arduous override procedure.

Chadha involved immigration law, not national security or the IEEPA. And in dispute was a one-house veto (either chamber could countermand the president), not a veto by concurrent resolution as in the IEEPA. The Court therefore could have decided the case narrowly, focusing only on the immigration law provision in dispute — as Justice Byron White urged in his dissent. Instead, the majority discredited the legislative veto in principle.

This broad decision had the effect — as the Justice Department later conceded with respect to the IEEPA in particular — of invalidating every legislative veto then in the law. And, indeed, two years after Chadha was decided, Congress amended the IEEPA so that a presidentially declared emergency could not be countermanded in the absence of a joint resolution — i.e., a provision approved by both chambers and signed by the president, or enacted by override. Not surprisingly, not once since that 1985 amendment has Congress ended a presidentially declared emergency under the IEEPA without the president’s approval.

At a gut level, the invalidation of the legislative veto appeals to me. The Constitution has a procedure for enacting law, that procedure should be followed, and departures from it should be deemed ultra vires.

Alas, that is not the world we’re living in. The IEEPA is one of many laws that delegate significant legislative powers to the president. The idea is that in a dangerous, complex world, the president has to be able to react with dispatch to crises, even if there’s no state of war; it would be impractical in such cases to rely on the legislative process, which is designed to be deliberative and plodding.

Well, maybe that can work; and it cannot be gainsaid that courts have routinely upheld congressional delegations of legislative power to the executive and to administrative agencies. But this creates a constitutional imbalance unless Congress can readily withdraw the delegation if it is abused.

Since Chadha, we have had precisely that imbalance: The president is permitted to legislate unilaterally, which is not expressly authorized by the Constitution (and which the separation of powers would seemingly prohibit), but Congress is forbidden from unilaterally countermanding such executive legislation because the legislative veto process for doing so runs afoul of the Constitution — even if what the president has done is against the will of Congress.

To my mind, if you are going to permit the delegation and the unilateral presidential legislation, then that has to be balanced by a legislative veto. I can see tolerating neither of these constitutional irregularities, but I can’t see allowing the former in the absence of the latter. On that point, it’s worth highlighting the Chadha dissent of Justice (later Chief Justice) William Rehnquist, who persuasively argued that the legislative veto provision was not severable from the rest of the immigration statute at issue — i.e., if the veto had to go because it was unconstitutional, then the whole statute should have gone with it.

The anomaly this leads to is what we’re seeing with the Trump tariffs. There is no national emergency that calls for steep tariffs on neighbors with whom we enjoy good relations (the tremendous value of which, I’m afraid, we take for granted). Under current conditions, there is no way that lawmakers would enact such tariffs, even temporarily and even if Trump urged the (barely) Republican-controlled Congress to do so. Yet the president is permitted to conjure up an emergency to enact these tariffs sua sponte by invoking the IEEPA; and Congress is barred, because of the changes wrought by Chadha, to invoke the legislative veto procedure that the IEEPA originally prescribed as a check on precisely the presidential abuse of delegated power that has occurred.

That seems crazy to me.

The CRS report on the IEEPA, linked above, recounts that over the past six years there have been proposals to require a joint resolution of approval in order for a presidentially declared emergency to continue beyond a certain number of days (say, 30).

In the realm of tariffs, I prefer Charlie’s proposal — a full rescission of any statutory authority for the president to act unilaterally — because I don’t see the need for “emergency tariffs.” (As noted above, the IEEPA hadn’t been resorted to for the imposition of tariffs for over 40 years until Trump threatened to use it in 2019.) But while I concede that the legislative branch is meant to be the most powerful of the three created by the Constitution, I am less of a congressional supremacist than Charlie is. There are true crisis situations in which we need the president to take action to protect national security; statutory law should support that rather than leave the president in doubt about his authority. Hence, if we can’t have a legislative veto, I believe the proposals for mandating a joint resolution of approval shortly after the president declares an emergency make sense. They would put the burden on the president to justify the emergency declaration, rather than put Congress to the currently impossible burden of countermanding it.

In his Chadha dissent, Justice White noted that the legislative veto had become

a central means by which Congress secures the accountability of executive and independent agencies. Without the legislative veto, Congress is faced with a Hobson’s choice: either to refrain from delegating the necessary authority, leaving itself with a hopeless task of writing laws with the requisite specificity to cover endless special circumstances across the entire policy landscape, or, in the alternative, to abdicate its lawmaking function to the Executive Branch and independent agencies. To choose the former leaves major national problems unresolved; to opt for the latter risks unaccountable policymaking by those not elected to fill that role.

That’s what we’ve got. It’s dysfunctional and, as we’re seeing, damaging — exactly what the Framers feared: the concentration of too much unchecked power, both legislative and executive, in one set of hands.