The Imperial Presidency and the China-US Trade War
U.S. President Donald Trump’s new round of tariffs on Chinese imports in his second term may not surprise many, given his repeated assertions and his initiation of the China-U.S. trade war seven years ago. However, what makes this round different is its legal basis: the International Emergency Economic Powers Act (IEEPA), a statute no president had used to impose tariffs before Trump. As a matter of fact, Trump has effectively expanded presidential power since the first trade war with China, wresting a significant portion of foreign economic policymaking authority from Congress. This trend will likely persist unless the Supreme Court intervenes.
Trump’s obsession with tariffs – not just as a diplomatic tool but as a hallmark of his presidency – has fostered a widespread misconception that imposing tariffs is a constitutional prerogative of the president. It is not. The U.S. Constitution explicitly vests the power to “regulate commerce with foreign nations” in Congress, while the president’s role is to faithfully execute the laws.
Historically, however, U.S. presidents have gained power over tariff-setting through congressional delegation. Congress retained primary control over tariff policy until 1928, when the Supreme Court upheld Congress’ ability to delegate tariff-setting authority to the executive branch, marking a shift toward greater presidential discretion. In the New Deal era, the Reciprocal Trade Agreements Act of 1934 granted President Franklin Roosevelt the authority to adjust tariff rates by up to 50 percent and negotiate bilateral trade agreements without further congressional approval. Subsequent legislation, including the Trade Expansion Act of 1962 and the Trade Act of 1974, further expanded the executive power to bypass Congress to modify tariff barriers under specific circumstances
During his first term, Trump primarily invoked the Trade Act of 1974 and the Trade Expansion Act of 1962, citing national security concerns as the legal basis to justify his trade war with China. He later threatened to invoke the IEEPA to impose tariffs on Mexican imports as part of his universal tariff strategy but ultimately refrained, likely due to concerns over its legal standing.
In response, the 116th Congress introduced multiple proposals aimed at curbing presidential trade authority and reasserting congressional control. Many of those proposals sought to require congressional approval for certain tariff actions or empower Congress to nullify presidential tariff measures through a joint resolution of disapproval. Others specifically aimed to restrict the president’s ability to invoke the IEEPA for tariff purposes. Additionally, some proposals called for increased presidential reporting on the economic impact of trade actions.
In contrast to congressional efforts to limit presidential trade authority, the Trump administration not only resisted but actively sought to expand it by citing the United States Reciprocal Trade Act (H.R. 764). This bill aimed to grant the president additional authority to raise tariffs on a case-by-case basis. However, it stalled at the introduction stage, never advancing toward becoming law. As a result, Trump’s efforts to push back against congressional pressure lacked strong constitutional footing.
Be that as it may, presidential power over trade enforcement – particularly in the realm of tariffs – expanded under Trump. This is why, despite significant opposition from Congress, the Trump administration was still able to negotiate and sign the Phase One trade deal with China in 2020 without congressional approval. It did so by framing the deal as a contractual arrangement between two countries rather than a formal trade agreement. When Trump’s U.S. Trade Representative testified before Congress, he argued that the administration was not required to submit the deal for legislative approval, as it fell under the president’s delegated authority under Section 301 of the Trade Act of 1974, making it an “executive agreement.”
While Presidents Barack Obama and George W. Bush also imposed tariffs on Chinese goods, their actions were limited to specific sectors, such as steel and tires, and were justified under a multilateral WTO framework to protect certain domestic industries and address China’s unfair trade practices. By contrast, Trump invoked national security as the primary rationale for his broad-based tariffs on Chinese goods.
During his first term, the statutes he relied on still required his administration to conduct investigations through agencies like the International Trade Commission, the Department of Commerce, or the U.S. Trade Representative. In some cases, the executive branch was also required to consult Congress. However, Trump ultimately paved the way for expanding presidential authority over trade – not just for himself, but for future presidents. This was evidenced by his successor, Joe Biden, who reinforced this shift by also invoking national security to justify his actions to even increase Trump-era duties on Chinese goods.
Hence, when Trump took this expansion of presidential power a step further by invoking the national security clause of IEEPA as the foundation for new tariffs, he effectively asserted unilateral control over taxation and trade, bypassing Congress’s constitutional role in regulating commerce. Under this framework, Congress becomes virtually obsolete.
Nevertheless, it is likely that Trump’s reliance on the IEEPA will face legal challenges. Critics could argue that the statute’s broad language, when read textually, does not grant the president the power to impose tariffs. For example, while the law allows the president to restrict “the importing or exporting of currencies or securities” and block “transactions in foreign exchange,” it does not explicitly authorize the imposition of “tariffs.”
A stronger challenge to Trump’s tariffs could come from the Supreme Court’s major questions doctrine, which requires explicit congressional authorization for executive actions with “economic and political significance.” Under the IEEPA, no such clear delegation of tariff or taxation authority to the president exists.
Yet, given today’s Supreme Court – where a six-justice conservative majority holds sway – the likelihood of a ruling against Trump’s tariffs is low. Even if, by some slim chance, the court were to find Trump’s use of the IEEPA unconstitutional, the slow pace of litigation would be unable to rein in his constantly shifting policies. By the time any ruling is issued, Trump – or any future president – will have already expanded executive power to shape the global and domestic economies without congressional input. When the Pandora’s box of securitizing the China threat through the trade war was opened in 2018, the path toward an imperial presidency already became inevitable – first in the economic realm, and now in the technological and cultural spheres as well.