Can the President Really Just Slap on Tariffs? Here’s Why the Answer Is (Mostly) Yes
Every few years, whenever a President announces new tariffs, the same question bubbles up: Can they even do that without Congress?
It sounds like a power grab — after all, the Constitution clearly gives Congress the power to tax and regulate commerce. But the truth is, the President’s ability to impose tariffs isn’t some modern invention. It’s been baked into the constitutional order, tested in court, and reaffirmed by decades of practice.
Let’s walk through how that happened.
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The Constitutional Foundation
When the framers wrote the Constitution, they gave Congress the power to “lay and collect taxes, duties, and imposts” and to “regulate commerce with foreign nations.” That’s Article I stuff. On the surface, it looks like the President should have no say in setting tariffs.
But the Constitution also makes the President the nation’s chief diplomat and commander in chief — the one who actually deals with foreign governments and handles crises that don’t wait for Congress to debate.
And that’s the key. Tariffs aren’t just about raising money; they’re a foreign policy tool. They’re about leverage, national security, and diplomacy. That’s why, for over a century, Congress has delegated some of its tariff authority to the President — allowing the executive branch to adjust duties when circumstances abroad change.
This isn’t some hidden loophole. Congress wrote the laws that let it happen.
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Congressional Delegation of Tariff Power
Take the Trade Expansion Act of 1962, for example. Section 232 gives the President power to “adjust imports” — including by imposing tariffs — if those imports threaten national security. That’s the same authority President Trump used to impose steel and aluminum tariffs in 2018.
When critics sued, arguing that the law gave the President too much power, the courts sided with the government. Judges said Congress had provided a clear enough framework and that the President was simply carrying out that legislative intent.
The courts have been saying that for nearly a century. In a 1928 case called J.W. Hampton, Jr. & Co. v. United States, the Supreme Court upheld an earlier version of this delegation. The Court said that as long as Congress provides an “intelligible principle” — basically, a clear guideline — it’s perfectly constitutional for the President to fill in the details. That’s been the foundation for presidential tariff authority ever since.
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The President’s Role in Foreign Affairs
Even earlier, the Court recognized that the President naturally has broader discretion in foreign affairs. The 1936 Curtiss-Wright case famously described the President as the “sole organ” in foreign relations — language that’s been quoted ever since to justify executive flexibility in dealing with other nations.
Tariffs, of course, are one of those foreign-facing tools.
Over time, Congress kept reinforcing this system. The Trade Act of 1974 gave the President power to respond to unfair trade practices by other countries. The International Emergency Economic Powers Act of 1977 gave the President authority to restrict trade during national emergencies.
All of these laws flow from the same idea: Congress sets the framework, and the President acts when speed and discretion are needed.
That balance — Congress as the lawmaker, the President as the executor — is what the Supreme Court has consistently approved. In Algonquin SNG v. FPC (1976), the Court again upheld the President’s authority under Section 232, finding it constitutional and within the bounds of delegation.
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Historical Practice and Political Reality
In practice, presidents of both parties have used these powers. Washington and Adams did it. FDR did it. Reagan did it. Trump and Biden both did it.
So while people tend to frame tariff actions as aggressive or unusual, the reality is they’re operating within a long-established legal structure.
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The Bottom Line
Yes, Congress has the constitutional power over tariffs — but it has also chosen to share that power, giving the President the authority to act quickly when international or national security concerns arise.
Courts have upheld that arrangement again and again, saying it fits within the Constitution’s separation of powers as long as Congress provides clear guidance.
In short, the President’s ability to impose tariffs isn’t some executive overreach. It’s a combination of delegated congressional authority, established legal precedent, and the President’s inherent role in foreign affairs.
It’s a system built for flexibility — one that lets the country react to a changing world without waiting for a slow-moving Congress to catch up.
And in today’s global economy, that might be the only way it works.
