No Taxation Without Authorization: The Legal Case Against Trump’s "Emergency" Tariffs

George III taxed us without representation. Trump’s trying it without Congress. Same vibes, new branding. This isn’t policy, it’s executive overreach with a price tag.

Disclaimer: This work is entirely my own. No emergency powers were invoked in its creation. No dry-erase boards were harmed. No tariffs were levied on my citations. Just one lawyer, a keyboard, coffee, and a deep love of the separation of powers.

Introduction: From 1775 to 2025 – A Familiar Fight Over Taxation and Representation

As a proud resident of New England, I’ve been thinking a lot about the American Revolution lately. This week marks the 250th anniversary of the opening shots at Lexington and Concord—what we commemorate as the beginning of the fight for liberty, self-government, and constitutional accountability. And let’s not forget one of the central slogans of that era: “No taxation without representation.” It wasn’t just a protest—it was a principle.

Fast forward to 2025, and we find ourselves confronting a strikingly similar crisis. American families are now burdened with substantial new “taxes”- tariffs projected by experts to cost over $1,300 per household, per year on average (between $1.4 and $2.2 trillion over the next decade) - not through the deliberative process of Congressional legislation, but by the unilateral declaration of an “emergency.” This maneuver bears an uncomfortable resemblance to the rule-by-decree approach of King George III and Parliament in the years prior to the American Revolution. In a move devoid of public input, legislative debate, or constitutional authorization, President Trump enacted sweeping “Liberation Day” tariffs. In effect, the President has assumed the role of a 21st-century monarch—imposing economic burdens on the public without the consent of their elected representatives.

The administration justifies these new tariffs under the International Emergency Economic Powers Act (IEEPA), a statute conceived to address genuine national emergencies, not to authorize broad-based trade policy. Two significant lawsuits—one initiated by the Liberty Justice Center on behalf of adversely affected importers, and another by the State of California—now challenge this usurpation of power in the courts. Both suits contend that President Trump’s utilization of IEEPA transcends legal boundaries, violates core constitutional tenets, and establishes a perilous precedent for executive overreach.

Liberation Day Tariffs: Unilateral Action with Sweeping Consequences

The day after April Fool’s Day (foreshadowing?) President Donald Trump announced sweeping “Liberation Day” tariffs on imports from nearly every country in the world—using a dry-erase board and a baffling “reciprocity” formula as visual aids. Even by Trump-era standards, this power grab is extraordinary. The tariffs have been described as economically reckless, diplomatically corrosive, and most importantly, legally indefensible.

Trump’s new tariffs include a blanket 10% levy on goods from nearly every country, plus a dramatic spike in tariffs on Chinese imports—some as high as 145%. While the administration has since paused portions of the policy and granted exemptions for smartphones and select electronics, the majority of the tariffs remain in force. This constitutes the highest average U.S. tariff rate since 1909.

The economic fallout is staggering. The Tax Foundation estimates these tariffs will cost Americans between $1.4 and $2.2 trillion over the next decade—roughly $1,300 per household per year. Big numbers—with even bigger consequences.

Beyond the staggering economic fallout lies a more profound and enduring injury: the brazen disregard for the law and separation of powers. Trump’s tariffs rest on an audacious theory: that any president can unilaterally restructure global trade using emergency powers never before interpreted to authorize tariffs at all.

The Foundational Principle: Congress Makes the Laws, Not the President

The Constitution unequivocally vests the power to regulate foreign commerce and levy taxes in the hands of Congress—a deliberate safeguard against executive overreach. Article I, Section 8, Clause 3, the Commerce Clause, explicitly grants Congress, not the president, the power to regulate “commerce with foreign nations.” The Supreme Court has consistently interpreted this clause as bestowing broad authority upon Congress to govern a wide spectrum of economic activities, including both interstate and international commerce.

Furthermore, Article I, Section 8, Clause 1, the Taxing and Spending Clause, empowers Congress “to lay and collect taxes, duties, imposts, and excises.” This fundamental clause underpins the authorization of numerous federal programs, including Social Security, Medicaid, and educational initiatives.

So, under what authority, then, is Trump launching these tariffs?

The administration's justification rests on the International Emergency Economic Powers Act (IEEPA). IEEPA was designed to allow presidents to take swift action against foreign threats – such as imposing targeted sanctions or freezing assets in a true national emergency. Congress enacted IEEPA in 1977 to curtail the expansive emergency economic powers previously delegated to the President under the Trading with the Enemy Act (TWEA), from which IEEPA originated. IEEPA was never intended as a presidential "blank check" to rewrite the nation's trade laws. While it permits trade restrictions, its scope is explicitly limited to addressing genuine national emergencies involving hostile foreign entities that threaten national security, foreign policy, or the economy. For instance, the inaugural state of emergency declared under IEEPA responded to the seizure of U.S. embassy staff as hostages by Iran in 1979.

Notably, IEEPA makes no mention of tariffs. It allows presidents to block transactions and impose financial restrictions when there is an “unusual and extraordinary threat” originating substantially from outside the United States—provided the president declares a national emergency under the National Emergencies Act at 50 U.S.C. § 1701(a). However, the statute was not designed to support a general reengineering of international trade flows. As the Brennan Center for Justice astutely observed, long-standing trade disputes or migration issues cannot, by any stretch, be construed as sudden, unforeseen crises warranting emergency action. Moreover, as Elizabeth Goitein, senior director of the Brennan Center’s Liberty and National Security Program, emphasized, emergency powers are reserved for genuine crises; they “are not meant to solve long-standing problems” or to let a president bypass Congress and act as an all-powerful policymaker.

So, even assuming tariffs fall within IEEPA’s scope, the administration still must identify a legitimate “unusual and extraordinary threat.” The cited trade deficits fail to meet this threshold; they represent long-standing, well-understood economic patterns. As the D.C. Circuit recently affirmed in Almaqrami v. Pompeo, 933 F.3d 774 (D.C. Cir. 2019), “invocation of emergency authority does not confer unlimited power.”

Furthermore, IEEPA provides several further procedural restrictions. First, the language of the IEEPA requires the President to consult with Congress “in every possible instance” before exercising any of the authorities granted. And, if a President declares a national emergency invoking IEEPA, he or she must “immediately” transmit a report to Congress explaining the reasons for invoking IEEPA's authorities, including “why the President believes [the] ... circumstances constitute an unusual and extraordinary threat, which has its source in whole or substantial part outside the United States, to the national security, foreign policy, or economy of the United States.” The President must specify the authorities to be exercised and the actions to be taken, explain why those actions are necessary, and identify any foreign countries with respect to such actions.

The conspicuous absence of these statutorily mandated consultations and reports underscores the administration's disregard for IEEPA's procedural safeguards.

Trump’s tariff gambit is not merely questionable; it demonstrably transgresses the statutory and constitutional boundaries of executive emergency power. Under the National Emergencies Act and IEEPA, presidential action is contingent upon the existence of an “unusual and extraordinary threat” to the nation.

Here, President Trump has stretched IEEPA far beyond its intended scope. The law was crafted to enable economic sanctions against hostile foreign actors, and the term “tariffs” is conspicuously absent from its text and legislative history. This conspicuous omission speaks volumes, underscoring the implausibility of Congress intending to delegate its fundamental tariff-setting authority through IEEPA. Indeed, empowering the executive to unilaterally rewrite import tax rates at will would constitute a clear violation of the separation of powers.

The Supreme Court has repeatedly warned that even extraordinary conditions do not “create or enlarge constitutional powers,” and that core legislative functions cannot be transferred to or usurped by the executive. In short, using IEEPA to impose broad tariffs stretches delegated authority past its breaking point, flouting the intent of both the statute and the Constitution’s carefully balanced framework.

The Lawsuits Against the Tariffs

Two significant lawsuits have now been filed challenging the legality of President Trump’s sweeping “Liberation Day” tariffs, and while their scope differs, they converge on a growing legal consensus: the administration has dramatically overstepped its authority under the IEEPA.

Last week, the Liberty Justice Center (LJC) filed suit in federal court on behalf of five U.S. importer businesses directly harmed by the tariffs. The lawsuit argues that Trump’s actions constitute an unlawful seizure of legislative power, and that IEEPA—passed in 1977 to manage genuine crises—was never intended to serve as a blank check for tariff policy.

The Liberty Justice Center’s legal theory rests on both statutory and constitutional arguments. First, it contends that the use of IEEPA to impose general tariffs is not authorized by the statute's text, which remains silent on duties and tariffs and requires an “unusual and extraordinary threat.”

Second, the suit invokes the “major questions doctrine” - imposing what amounts to a $2 trillion tax hike on U.S. consumers, without congressional approval, qualifies as a major question, and therefore requires clear statutory authorization that simply doesn’t exist.

Third, the suit argues that even if IEEPA could be interpreted to allow such powers, that delegation would violate the “nondelegation doctrine” by lacking any meaningful limiting principle.

To fully grasp the critical legal issues at stake, we must examine the key legal doctrines underpinning these lawsuits.

Enter the Major Questions Doctrine or “When the president needs a permission slip”

The major questions doctrine, which the LJC cites in its lawsuit, requires clear congressional authorization before the executive can make decisions of vast “economic and political significance.” (West Virginia v. EPA, 597 U.S. ___ (2022)). This is precisely the scenario before the court: a trillion-dollar trade war unilaterally launched under the guise of vague statutory language devoid of any mention of tariffs.

The Supreme Court has invoked the major questions doctrine to invalidate several recent executive actions: the CDC’s nationwide eviction moratorium (Alabama Ass’n of Realtors v. Department of Health & Human Services, 594 U.S. ___ (2021)), OSHA’s COVID-19 vaccine-or-test mandate for large employers (National Federation of Independent Business v. OSHA, 595 U.S. ___ (2022)), and President Biden’s student loan forgiveness program (Biden v. Nebraska, 600 U.S. ___ (2023)).

The language of these cases is unequivocal. For example, in Biden v. Nebraska the Court declared President Joe Biden's student debt cancellation plan to be unlawful because it was an example of "the Executive seizing the power of the Legislature." Sound familiar?

Consider also Schechter Poultry Corp. v. United States, 295 US 495 (1935). At issue was the National Industrial Recovery Act of 1933, a far-reaching New Deal statute that purported to give President Franklin Roosevelt the authority to centrally plan much of the U.S. economy via price-fixing and other economic controls, all in the name of combating the Great Depression. However, as the Supreme Court unanimously pointed out "extraordinary conditions do not create or enlarge constitutional powers." Neither Congress nor the president may "transcend the imposed limits because they believe that more or different power is necessary."

If these aforementioned cases triggered major questions review, then President Trump’s Liberation Day tariffs—potentially the most substantial economic intervention ever asserted under IEEPA—certainly warrant the same scrutiny.

The Nondelegation Doctrine: Congress Can’t Hand Over the Keys

The second critical argument advanced by the LJC pertains to the nondelegation doctrine. This doctrine posits that Congress cannot cede its legislative power without establishing meaningful limits. Delegations of authority must be guided by an “intelligible principle,” and open-ended grants of power would violate the fundamental separation of powers.

Even under the most strained interpretation that IEEPA authorizes tariffs, such a reading would irreconcilably violate the nondelegation doctrine.

The U.S. Supreme Court has long acknowledged that Congress may delegate certain responsibilities to the executive branch—but only under specific constitutional conditions. For nearly a century, the Court has held that such delegations are permissible only if they are guided by an “intelligible principle.” This standard, first articulated in J.W. Hampton, Jr. & Co. v. United States, 276 U.S. 394 (1928), requires Congress to lay out clear and meaningful guidelines to limit executive discretion. However, as Justice Gorsuch warned in his influential concurrence in Gundy v. United States, 588 U.S. ___ (2019), that standard cannot serve as a “blank check.” In his view, an intelligible principle must be more than vague or open-ended language—it must actually constrain executive power and preserve the core legislative role of Congress. Otherwise, Congress risks surrendering its constitutional authority altogether.

Even Justice Kagan, writing for the plurality in Gundy, conceded that “[t]he nondelegation doctrine bars Congress from transferring its legislative power to another branch of Government.”

President Trump’s tariffs effectively transform IEEPA into an unfettered power to impose any tariff, on any country, at any time, based on any alleged threat—real or imagined. This is not lawmaking guided by discernible principle; it is policymaking by executive decree.

California’s Lawsuit: Expanding the Challenge and the Stakes

The state of California’s lawsuit, filed just two days after LJC’s, reinforces and deepens these constitutional claims. In addition to challenging the April 2 Liberation Day tariffs, California’s suit attacks earlier Trump-era uses of IEEPA to impose tariffs on China, Mexico, and Canada, often under the guise of responding to the fentanyl crisis.

The California complaint argues that these actions represent a pattern of executive overreach in trade matters and that using IEEPA to achieve longstanding political and economic goals—like reshaping the global supply chain—is incompatible with both the statute’s intent and constitutional limits on presidential power. California’s broader framing also emphasizes the harm to state-level economies and industries, amplifying the claim that the tariffs are not only illegal but also deeply disruptive. (I’d remind everyone that California's economy ranks fifth in the world, behind the US, China, Germany, and Japan)

Taken together, both these lawsuits present a coordinated legal offensive against the use of emergency powers as a substitute for congressional lawmaking. While LJC focuses on direct economic harm to businesses, and California builds a broader structural and economic case, both rest on a simple proposition: that the president cannot invent emergency powers to circumvent Congress and reshape international trade. These suits are now positioned to test whether the courts are willing to reassert limits on the modern administrative state—or whether the executive can unilaterally launch the biggest trade war in over a century.

Engaging with Prof. Noah Feldman’s IEEPA Analysis — A Response

In a recent Bloomberg column in January 2025, before the launch of the tariffs, legal scholar (and my esteemed Harvard colleague) Prof. Noah Feldman predicted that under the IEEPA Trump had the authority to launch these Liberation Day tariffs. In “Yes, Trump Could Declare an Economic Emergency for Tariffs,” Prof. Feldman turned to the constitutional question that is now at the heart of the unfolding legal challenges: Could the president legally use IEEPA to impose broad tariffs?

Professor Feldman posits an affirmative answer. His argument rested on a broad reading of IEEPA’s language, which authorizes a president to take action during a national emergency involving an “unusual and extraordinary threat” to the “national security, foreign policy, or economy” of the United States. In Professor Feldman’s view, the law is written with sufficient breadth that—once a national emergency is declared—imposing tariffs could plausibly fall within its scope, even if that was not its primary intended application.

He further argues that challenging this use of IEEPA under the major questions or nondelegation doctrines faces significant obstacles. Courts have generally afforded the president wide discretion in matters of emergency and foreign affairs, and Prof. Feldman suggests that judges might hesitate to treat a trade war as fundamentally distinct from other forms of emergency economic interventions.

So, read his article—actually read all his stuff, it's great. However, now that the tariffs have been formally launched and their scope more fully revealed, let me offer my own reading of IEEPA and the constitutional stakes at hand.

Revisiting the Prediction: Why I See IEEPA Differently

Prof. Feldman is right to note that IEEPA contains broad statutory language—and to be fair, his initial analysis was written before the full scope of the “Liberation Day” tariffs were announced and before the policy began “see-sawing” between implementation and partial exemptions. Given these developments, a fresh look may be warranted. But even so, I think Prof. Feldman’s interpretation risks transforming IEEPA into a constitutional “escape hatch” or “loophole”- effectively allowing presidents to impose taxes unilaterally under the guise of emergency powers. That would invert the separation of powers, granting the executive what amounts to legislative authority over trade. Several critical factors, both textual and structural, strongly counsel continued judicial skepticism—and reinforce the need to cabin IEEPA within its intended boundaries.

Firstly, the historical application of IEEPA offers a stark counterpoint. In nearly half a century since its enactment in 1977, amidst post-Nixon presidential crisis reforms and the Iran hostage crisis, no administration has invoked it to initiate an across-the-board trade war. My concern is that this expansive reading of IEEPA would empower the executive to unilaterally circumvent the entirety of congressional trade law with the stroke of a pen—a judicial interpretation that veers into legislative rewriting.

Secondly, the legislative history of IEEPA directly contradicts this interpretation. The House of Representatives report on IEEPA could not be clearer: “Emergencies are by their nature rare and brief and are not to be equated with normal ongoing problems” (H.R. Rep. No. 95-459 (1977)). Bilateral trade deficits—Trump’s stated justification—are not “rare,” and certainly not “brief.”

And make no mistake: the major questions doctrine applies here. The Supreme Court has shown it will not defer when the executive attempts vast economic policymaking under vague statutes. Just last year, in Biden v. Nebraska, the Court struck down student loan forgiveness under a major questions rationale—even though the underlying statute arguably gave the Secretary of Education significant discretion. But the more directly relevant precedent is West Virginia v. EPA, 597 U.S. 697 (2022), where the Court invalidated the Environmental Protection Agency’s Clean Power Plan because the underlying statute—the Clean Air Act—did not clearly authorize such a transformative restructuring of the national energy grid. The Supreme Court emphasized that agencies cannot assert regulatory authority over major questions of national policy unless Congress has spoken with unmistakable clarity. In other words, vague text won’t cut it when the stakes are this high.

Trump’s use of IEEPA to impose across-the-board tariffs—impacting trillions of dollars in trade and nearly every sector of the economy—is precisely the kind of sweeping, unilateral action that the major questions doctrine is designed to check. If forgiving student loans or regulating carbon emissions require clear statutory authority, then surely so does launching the largest trade war in over a century.

Lastly, foreign affairs deference isn’t a blank check. While courts are cautious in foreign affairs cases, they don’t abandon core separation-of-powers principles. As the D.C. Circuit noted in Almaqrami v. Pompeo, “invocation of emergency authority does not confer unlimited power.” Presidential claims of foreign or economic threats still require judicial scrutiny—especially when massive domestic tax consequences are at stake.

Prof. Feldman is not wrong in predicting that IEEPA’s text gives the president significant discretion. However, it is implausible that the courts will interpret this discretion as a grant of carte blanche. A trillion-dollar tariff program affecting nearly every trading partner on Earth is not what Congress envisioned when it passed IEEPA in the aftermath of the Nixon-era emergency powers abuse and hostage crisis.

When both the Liberty Justice Center and the state of California assert that this action constitutes an overreach, they stand on firm legal ground—and on the side of preserving the Constitution’s foundational separation of powers.

The Policy Case Against IEEPA Tariffs: Economic, Diplomatic, and Democratic Risks

Beyond the legal infirmity of using IEEPA for tariffs lie significant policy concerns, rendering this action not only unlawful but demonstrably unwise and harmful. Economically, sweeping tariffs imposed by fiat function as taxes on American importers and consumers. Again, the Tax Foundation found that these unprecedented tariffs would amount to the “largest tax increase in at least a generation.” Such sudden, unilateral duties also disrupt supply chains and create market chaos. U.S. industries – from automakers relying on North American parts to retailers stocking affordable goods – are hit with higher costs and uncertainty as cross-border trade ties are thrown into disarray.

Diplomatically, turning a trade dispute into a self-declared emergency and slapping tariffs on allies is a recipe for backlash. Canada and Mexico, for example, bristled at Trump’s move and announced retaliatory tariffs of their own. And China filed a dispute with the World Trade Organization. Rather than forcing concessions, this approach undermines U.S. credibility and strains partnerships: it’s unlikely to make other countries bend on issues like immigration or drug trafficking, while eroding the trust and alliances on which the U.S. depends.

Finally, from a rule-of-law perspective, normalizing this kind of emergency declaration poses a dangerous risk. If any persistent policy problem can be rebranded as an “economic emergency” to let the White House bypass Congress, it opens the door to abuse by future presidents of any party. Such end-runs around the legislative process chip away at democratic norms, effectively allowing the executive to govern by decree in areas the Constitution reserves for Congress

Conclusion: Time to Declare Independence from Emergency Tariff Overreach

In sum, using IEEPA to impose tariffs not only exceeds the law’s intent and likely its legal limits, but it also exemplifies bad policy – undermining economic stability, diplomatic relationships, and the rule-of-law principles that undergird our constitutional system.

These lawsuits serve a vital purpose: to reaffirm the fundamental principle that the president cannot unilaterally reshape U.S. trade policy under the guise of emergency powers never intended to encroach upon Congress’s exclusive authority over tariffs.

Unchecked executive tariff power makes U.S. trade policy unpredictable and unreliable. No country will sign trade agreements with us if they can be upended by a presidential proclamation. No business will invest in long-term supply chains if they know those relationships can be shattered overnight.

Let’s remember: IEEPA was meant for a hostage crisis, not to wage trade wars by dry-erase board. Our economy works best when governed by the rule of law, not by improvisation from the White House press room. The courts can—and must—reaffirm this principle by striking down President Trump’s unauthorized tariffs, restoring the balance of powers and preserving the integrity of our constitutional framework.

If taxation without representation was enough to start a revolution in 1775, it should still raise objections in 2025.