In his April 2 executive order on tariffs and previous orders announcing tariffs on Chinese, Canadian, and Mexican imports, President Trump used the National Emergencies Act of 1976 (NEA) and the International Emergency Economic Powers Act (IEEPA) of 1977.
This raises two important questions: Do the National Emergencies Act and IEEPA allow the President to set tariffs, and is the current economic state actually an emergency? (We also covered some tariff history on our full post here, and here on the projected impact, Trump's rationale, and Congress's response.)
Emergency and I: Who has the power to levy tariffs
Congress — not the President — has the authority under Article I, Section 8 of the Constitution to create taxes including tariffs ("imposts") and the power to regulate trade with foreign countries. Over the 20th Century, however, Congress delegated considerable authority to set trade agreements to the President. But Trump didn't use these authorities: He used powers granted to by Congress under national emergency law to set the April 2 tariffs.
The National Emergencies Act created a formal process for the President to declare a national emergency, and IEEPA allows Executive Branch departments broad authority to sanction and freeze assets of foreign actors once an emergency is declared.
How trade policy fits under IEEPA is questionable. It actually was designed to limit presidential power in the wake of the Vietnam War and Watergate, the law does not mention tariffs, and no other president has used the act to impose tariffs, even as declarations of national emergencies under IEEPA have grown over recent decades. Critics of the action arguethat the only instance in case law that would support interpreting presidential tariff power under the act involved a temporary action taken by the Nixon Administration under the law IEEPA replaced.
"The Constitution forbids it," said Republican Sen. Rand Paul on emergency powers to set tariffs. And a lawsuit has been filed challenging it. (Also of note, a Senate bill to limit the President's power to set tariffs has seven Republican cosponsors, making it likely to pass the Senate, but it may be dead-on-arrival in the House.)
Trump has used other trade powers previously. For example, Section 232 of the Trade Expansion Act of 1962 authorizes the President to raise tariff rates on goods the Department of Commerce determines are being imported in ways that threaten national security. Section 301 of the 1974 Trade Act allows the President to raise tariffs on goods the U.S. International Trade Commission finds are being imported at levels that harm domestic industry. It also allows the U.S. Trade Representative to impose tariffs on countries that harm U.S. commerce in "unjustifiable," "unreasonable," or "discriminatory" ways like failing to protect American firms' intellectual property or using child labor. The Trump Administration has cited these mechanisms in its rollout of several tariffs: It justified tariffs of 25% on autos and auto parts from Canada and Mexico on March 26 under Section 301 of the Trade Act of 1974 and Section 232 of the Trade Expansion Act of 1962.
What exactly is the emergency?
The April 2 executive order includes its basis for declaring a national emergency:
"Large and persistent annual U.S. goods trade deficits have led to the hollowing out of our manufacturing base; inhibited our ability to scale advanced domestic manufacturing capacity; undermined critical supply chains; and rendered our defense-industrial base dependent on foreign adversaries. . . . These conditions have given rise to the national emergency that this order is intended to abate and resolve."
The trade deficit is the amount the United States imports minus what it exports, and it has been growing steadily for 30 years, and especially since the COVID-19 pandemic began in Trump's first term. In other words, the United States imports far more goods than it exports. (A trade deficit in goods, which excludes the U.S.'s export of services, isn't necessarily a bad thing.)
Congress passed the National Emergencies Act and IEEPA to enable the President to respond quickly to swift-moving international crises potentially impacting national security. Compare that with the executive order's language that calls the trade deficit "persistent" 10 times (and "persistent decline in U.S. manufacturing output" once).
A 1977 House committee report on IEEPA stated any declared "emergency should be terminated in a timely manner when the factual state of emergency is over and not continued in effect for use in other circumstances." But despite the law's intentions, that's not how the law has been used in the past. As this Congressional Research Service report notes, national emergencies can last indefinitely and the courts have rejected most challenges to the presidential authority under IEEPA:
"As of January 15, 2024, Presidents had declared 69 national emergencies invoking IEEPA, 39 of which are ongoing. History shows that national emergencies invoking IEEPA often last nearly a decade, although some have lasted significantly longer—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 by Iran in 1979, is in its fifth decade."
The presidential definition of crisis also has broadened in recent years to include investment in Chinese industry and the international drug trade. President Trump threatened to invoke IEEPA to levy tariffs on Mexico because of illegal immigration during his first term.
Courts are unlikely to weigh in on what is or isn't an emergency. Congress could end the practice of decades-long "emergencies," but it probably won't.
President Trump Invokes Emergency Powers for New Tariffs was originally published by GovTrack and is shared with permission.
Chris Nehls does consulting for POPVOX Foundation on strategy, communications, and philanthropic outreach.
image of U.S. President Donald Trump is displayed on a digital billboard in Times Square in New York on April 8, 2026.
Trump is stuck between two realities. Neither serves the American people
Normally, I worry that events may overtake a column. But not so with the Iran war.
I don’t worry about running afoul of a headline or Truth Social post from the president because what is said about the situation is no longer very relevant to the reality.
On April 8, Nick Catoggio, my Dispatch colleague, dubbed an earlier stoppage with Iran “Schrödinger’s ceasefire.” This was a reference to the famous thought experiment by the physicist Erwin Schrödinger, who was trying to explain the weirdness of “superpositionality” in quantum physics. A cat in a box is both dead and alive at the same time until you open the box. Schrödinger meant to illustrate the absurdity of the idea that particles aren’t any one thing, but a “cloud of probabilities.”
The Trump administration is stuck in a word cloud of probabilities of his own making. The war is over. The war is on. The war isn’t a war. We have a deal, but we don’t have a deal, but we’re about to have a deal. We destroyed Iran’s military. No, we left it intact. We want regime change. No we don’t. We already accomplished it. We “obliterated” Iran’s nuclear program a year ago. We had to go to war in February to prevent nuclear war. The Strait of Hormuz is open, closed, or something in-between. No deal without “unconditional surrender.” Let’s make a deal!
This everything-all-at-once vibe can be disorienting, particularly since most Americans didn’t have a war with Iran on their bingo cards until the shooting had already started. President Trump didn’t prepare the country or consult with Congress beforehand because he thought it would all be a smashing success in a matter of weeks.
The miscalculation that started it all: killing Iran’s Supreme Leader, Ayatollah Ali Khamenei, and much of Iran’s senior leadership, on the first day of the war. To “the great proud people of Iran, I say tonight that the hour of your freedom is at hand,” Trump announced on Feb. 28. “When we are finished, take over your government. It will be yours to take. This will be probably your only chance for generations.”
I support regime change in Iran and shed no tears for Khamenei or his goons. But when you start a war by killing the regime’s top leaders, it’s not unreasonable for the remaining ones to conclude that you really intend regime change.
Khamenei was a murderous fanatic, but he was a fairly cautious one. He liked to threaten closing the Strait of Hormuz or attacking our regional allies, but he was reluctant to actually do it, fearing it would invite a regime change war. The mullahs and IRGC goons believed, not unreasonably, that if they lost their grip on power, they’d be lynched by the Iranian people they’ve brutalized for decades.
By starting with a regime change war, Trump removed any reason for the regime not to go for broke. When you have nothing to lose — particularly when you are a millenarian religious fanatic — a Persian Alamo strategy makes a lot of sense.
So Iran closed the Strait of Hormuz and attacked its neighbors.
But it turns out this wasn’t the Alamo. In the contest of wills, Trump blinked. The Iranian regime’s tolerance for punishment proved — so far — to be greater than Trump’s and that of our gulf allies. Militarily we could finish the job, but that would require ground troops and much greater economic turmoil. In a conflict Trump launched unilaterally without the prior support of Congress, NATO or the American people, Trump doesn’t have the political capital for that.
But that’s only half the problem. Trump wants the war over, but he doesn’t want to pay — militarily, economically, politically — what that would cost. So he wants to make a deal that ends it. But there is no deal available that wouldn’t come at an equally undesirable cost. Any deal that looks like what President Obama struck with the Iranians would be too embarrassing to bear. But the Iranians are convinced that they can get just such a deal, and they’re willing to drag things out as long as it takes.
The result: Trump’s in a box of his own making. He thinks he can talk his way out by simply asserting a reality that doesn’t exist. When the financial markets get nervous, he announces a breakthrough that is, at best, a possibility. When the Iranians agree to a deal that looks similar to one Obama might negotiate, Trump goes back to his threats.
It can’t go on forever. But I’m sure it’ll last until long after this column is forgotten.
Jonah Goldberg is editor-in-chief of The Dispatch and the host of The Remnant podcast. His Twitter handle is @JonahDispatch.