Congress Empowered the President to Impose Tariffs, and It Was Right to Do So
It is tempting to assume that trade policy, like taxation, should be governed by the slow machinery of Congress. The Constitution, after all, places the power to regulate commerce and impose tariffs squarely in Article I. And yet, since 1934, Congress has repeatedly chosen to delegate substantial tariff authority to the President. That delegation was not accidental. It was the result of reasoned deliberation in response to national necessity. What opponents of presidential tariff authority now call a usurpation is in fact the sustained exercise of power Congress has explicitly granted over the past century. The Trade Review Act of 2025, a bipartisan effort to claw back those powers, threatens to undermine not only the flexibility of the Executive Branch, but the coherence and credibility of American trade policy itself.
To understand why presidential discretion over tariffs is necessary, it helps to begin with the purpose of delegation. Tariffs, by their nature, are not static instruments. They are levers of negotiation, retaliation, and, at times, emergency defense. When a foreign nation imposes a discriminatory duty on American goods, delays enforcement of an intellectual property agreement, or floods domestic markets with subsidized goods, the ability to respond decisively is paramount. Congressional deliberation, admirable in many domains, is not designed for speed. Even under the best conditions, legislation takes time. In trade, time is often the difference between deterrence and defeat.
The Reciprocal Trade Agreements Act of 1934 marked a sea change in congressional understanding of this fact. Following the economic carnage wrought by the Smoot-Hawley Tariff Act of 1930, legislators empowered President Roosevelt to negotiate reciprocal tariff reductions. The reasoning was clear. As the historian of the House put it, trade agreements could be struck more effectively and less parochially by the Executive than by 535 separate legislators beholden to local interests. President Roosevelt’s authority was not unlimited. He could act only within prescribed bounds. But Congress, recognizing the structural advantages of presidential negotiation, laid the foundation for what would become a permanent shift in trade policy.
In 1962, Congress went further. The Trade Expansion Act, particularly Section 232, allowed the President to impose tariffs on goods whose importation threatened national security. This was not a partisan gambit but a Cold War imperative. Strategic resources, such as oil and steel, were considered vital to national defense. The legislature concluded that the President, with access to classified intelligence and inter-agency analysis, was best situated to make such judgments. The Supreme Court later upheld this delegation, finding that Congress had provided a sufficiently clear standard: the threat must pertain to national security. The President’s discretion, in other words, was not a blank check but a targeted instrument.
The Trade Act of 1974 further extended this logic. Section 201 authorized the President to impose safeguard tariffs when a domestic industry suffered serious injury from a surge in imports. Section 301 empowered the President to retaliate against unjustifiable or discriminatory foreign practices that burdened American commerce. In both cases, the procedures were designed to preserve legislative oversight while enabling executive action. Investigations by expert agencies such as the U.S. International Trade Commission or the Office of the United States Trade Representative produced records. Recommendations followed. The President then acted. At each stage, the goal was not imperial fiat but institutional competence.
Opponents of executive tariff authority often raise constitutional objections. Their concern, framed as a defense of Article I, rests on the nondelegation doctrine: that Congress cannot transfer its legislative power to the President. But the doctrine has always been interpreted with pragmatism. The Supreme Court’s decision in Field v. Clark (1892) upheld a statute allowing the President to suspend trade concessions to countries that failed to reciprocate. The Court reasoned that Congress had legislated the conditions; the President was merely executing its will. That logic has held steady through J.W. Hampton Jr. & Co. v. United States (1928), and Federal Energy Administration v. Algonquin SNG, Inc. (1976). Delegation is constitutional when guided by an intelligible principle. In trade policy, Congress has supplied those principles repeatedly: reciprocity, national security, injury to domestic industry, retaliation against unfair practices.
The practical necessity of presidential tariff power has only grown. The global economy operates in real time. Foreign governments act quickly to exploit gaps in enforcement. Cyber theft, predatory subsidies, and state-led dumping occur on timescales ill-suited to the congressional calendar. The President, by contrast, has access to intelligence, diplomacy, and economic analysis that allows for calibrated and timely responses. Consider the Trump Administration’s 2018 tariffs on Chinese goods under Section 301, imposed after extensive investigation into forced technology transfers and IP theft. Critics cried foul, but the U.S. Trade Representative’s investigation documented clear violations. Congress had already authorized such action. The President used that authority as intended.
Moreover, presidential tariff power enhances negotiating leverage. Trade deals are, at bottom, a matter of mutual concessions. A negotiator with no authority cannot bargain effectively. When the President sits across from a foreign leader, the ability to promise tariff relief or threaten its imposition must be credible. If every action requires a 60-day congressional review, as the Trade Review Act proposes, then every foreign partner knows they can wait it out. The President becomes a messenger, not a decision-maker. That weakens the United States in every trade negotiation.
One might ask: does this mean Congress is irrelevant? Certainly not. Congress sets the parameters. It authorizes, limits, and oversees. Each of the statutes in question—the 1934 RTAA, the 1962 Trade Expansion Act, the 1974 Trade Act—contains restrictions, reporting requirements, and sunset provisions. Congress can repeal or amend these laws. It has done so before. But micromanagement is not oversight. The Trade Review Act, by requiring congressional approval within 60 days of any new tariff, undermines the very structure Congress created: one in which the Executive acts, within limits, and Congress reviews in due course.
Worse still, the Act risks paralyzing U.S. trade policy at a moment of rising geopolitical tension. China’s mercantilism, Russia’s resource manipulation, and cartel-like behavior from OPEC nations all demand agile responses. President Trump, re-elected with a mandate to restore American economic sovereignty, must be able to wield the tools Congress gave him. Those tools include tariffs—not as economic punishment, but as instruments of leverage, deterrence, and negotiation. The Trade Review Act would dull those tools.
Delegation is not a constitutional anomaly. It is a design choice, one that reflects the complexity of modern governance. Congress has chosen, over nearly a century, to allow the President to implement trade policy within defined constraints. Those constraints have worked. Presidential discretion has been used to protect national security, retaliate against trade violations, and defend American workers. None of that is possible if every tariff must pass a new legislative gauntlet.
The President is not above the law. But neither should he be beneath the ability to act. To rescind or curtail the authority granted by Congress in the name of restoring legislative supremacy is to misunderstand both the history and the function of American trade policy. It is Congress itself that made this delegation, repeatedly and deliberately. And it is the President, acting within those bounds, who must be able to fulfill his constitutional duty to protect the interests of the United States.
To hobble the Executive in the name of theoretical purity is to invite strategic impotence. The world does not wait for Congress. Nor should America’s enemies. The Trade Review Act, for all its good intentions, would leave the United States less capable, less credible, and less secure. That is not constitutional fidelity. It is constitutional folly.
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