How Trump is misusing emergency powers in his tariffs policy

A good way to commentate is to start with a puzzle: something that does not make sense – or at least does not make sense at first glance.

And one puzzle about the tariff policy of Donald Trump is why he as president is devising general United States trade policy himself, by a sequence of what can only be called decrees.

This is a puzzle because the constitution of the United States expressly provides that trade policy is for Congress.

Article I of the constitution provides that Congress is “to regulate Commerce with foreign Nations”.

The same Article also provides that Congress is to have the final word on imports and exports – though that provision is framed in terms of it not being for the individual states to have the final word:

“No State shall, without the Consent of the Congress, lay any Imposts or Duties on Imports or Exports, except what may be absolutely necessary for executing it’s inspection Laws: and the net Produce of all Duties and Imposts, laid by any State on Imports or Exports, shall be for the Use of the Treasury of the United States; and all such Laws shall be subject to the Revision and Controul of the Congress.”

Neither the so-called “commerce clause” or the “import-export clause” mentions the presidency having any role in trade policy.

And if you look at Article II – which provides for the powers of the presidency (and is the Article beloved by exponents of presidential power) – you will not not see mention of trade or commerce there either.

But there he is, conducting trade policy on a whim, by decree.

There he is, not imposing tariffs on one particular foreign nation, but recasting the entire tariff policy of the United States in respect of almost every country in the world – and the only exceptions are the ones he chooses.

How is Trump able to do this, when the constitution so plainly says that it is for Congress to set international trade policy and not the presidency?

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This is the question to which I have set out an answer over at Prospect – please click and read here.

In essence, Trump is able to do so because he is (mis)using old emergency legislation passed by Congress, which was not designed for the purpose of setting general trade policy and has never before 2025 been used for this purpose (or even used to impose tariffs on another country, let alone every country).

And Congress is letting him do so.

As such, this tariff policy is not so much an example of presidential power, but of congressional impotence.

This is not an instance of Trump running with a power provided for the presidency by Article II and running with it as far as possible.

It is instead an example of him reaching over to Article I and stealing a power expressly allocated to Congress.

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In essence: the way this is being done is as follows.

A statute from 1977 enables a president to take measures in the event of an emergency – that there is an “unusual and extraordinary threat”.

Once the president formally declares an emergency, the president can then put in place measures – measures which are defined (if defined at all) in the most general terms.

Before 2025, it would appear that the 1977 Act was used regularly by president but only against particular individuals and to impose particular sanctions.

As such, it in a way made sense for this Act to be used in the way it was.

But in 2025 came this executive order.

This executive order – really a decree – contains this extraordinary passage:

“I, DONALD J. TRUMP, President of the United States of America, find that underlying conditions, including a lack of reciprocity in our bilateral trade relationships, disparate tariff rates and non-tariff barriers, and U.S. trading partners’ economic policies that suppress domestic wages and consumption, as indicated by large and persistent annual U.S. goods trade deficits, constitute an unusual and extraordinary threat to the national security and economy of the United States. That threat has its source in whole or substantial part outside the United States in the domestic economic policies of key trading partners and structural imbalances in the global trading system. I hereby declare a national emergency with respect to this threat.”

The rest of the decree (which should be read in full) sets out how this “threat” has come about since 1945 – indeed the decree contains a potted (if one-sided) history of post-war international trade.

In summary the deficits are structural and they have been in place a long time.

In other words: the deficits are usual and ordinary.

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Words like “unusual” and “extraordinary” can have wide and expansive meanings.

But – logically – however wide the meaning of a word can be expanded, it (normally) cannot include its own antonym.

Unusual cannot mean usual.

Extraordinary cannot mean ordinary.

But here Trump is formally declaring that the usual and ordinary trading conditions of the United States “constitute an unusual and extraordinary threat to the national security and economy of the United States”.

And that is an unusual and extraordinary thing for a President to do with emergency legislation – or at least it should be.

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What Trump is doing is that easy.

Regardless of the constitution expressly stating regulating trade is a matter for Congress, Trump can simply declare an emergency and so take it upon himself to recast the tariff policy of the United States with almost every country in the world.

In any sensible polity, this constitutional expropriation would face instant challenge.

The legislature would instantly check the executive, either by mechanisms within the statute or by repealing the law outright.

The judiciary would also check the executive, by ruling that acts outside the scope of the statute were outside the legal powers of the executive.

These would be the checks that would balance the overall constitution of a polity where the executive misused – abused – power provided to it by legislation.

But in the United States the separation of powers currently means little or nothing, because those powers are aligned.

A Republican majority in both houses of Congress is complemented by a conservative majority on the Supreme Court.

And so, in the current circumstances, the United States may as well not have the separation of powers at all.

Indeed, it may as well not have a written constitution, for all the good it is doing at the moment.

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Once rulers get a taste for emergency powers they tend to carry on using them.

And if a polity has a compliant legislature and a deferent judiciary, there is little or nothing that can limit the executive’s use – misuse, abuse – of emergency powers.

What has already happened has been pretty significant – a 1977 Act has been used for Trump to recast the entire trading policy of the United States.

Similarly Trump invoked the Alien Enemies Act of 1798 – even though Congress has not declared any war – and has used it to deport humans to an industrial-sized prison in another country.

The only limits to what Trump and his circle want to do with emergency or wartime legislation seem to be set by their own imaginations.

The extent to which emergency or wartime legislation is already being put is alarming.

And it thereby is not especially alarmist to say that the current presidency may use – misuse, abuse – other emergency and wartime legislation, because they can, and nobody will stop them.

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The Prospect article was published before Trump caved a little on tariffs.

Some of the more onerous tariffs were suspended for a period.

But think about this.

Something which was necessary because of “an unusual and extraordinary threat to the national security and economy of the United States” suddenly became unnecessary.

What Trump described in his decree as “an unusual and extraordinary threat to the national security and economy of the United States” had not itself changed – though stock and other market conditions certainly had changed.

Yet suddenly the most onerous of the emergency measures to be rushed into place were not needed.

The most obvious explanation is that what he described as “an unusual and extraordinary threat to the national security and economy of the United States” was not an unusual and extraordinary threat at all.

If it were still such a threat, then he would not have so casually suspended the measures supposedly necessary to meet that threat.

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Trump and his circle’s taste for emergency and wartime legislation is a bad thing.

And it can only get worse, despite him caving on some tariffs.

This is not a strong, robust presidency using to the full its designated powers under Article II of the constitution.

This is a presidency taking powers allocated elsewhere in the constitution and misusing and abusing those powers – with the support or forbearance of Congress and the courts.

And this is the real emergency.

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