Can We End the Trump Tariffs?

Opposition to Trump’s tariffs is building within the GOP and conservative legal circles

A sign on Trump's Trade War behind U.S. Tim Kaine (D-VA) while he speaks to reporters. Photo by Kayla Bartkowski/Getty Images.

It’s been a week since Trump’s “Liberation Day” tariff announcements sent markets tumbling around the world and left even his more ardent supporters wondering how to spin this. The announced tariffs, after all, appeared both arbitrary and contradictory.

They felt arbitrary because, for example, why impose such high tariffs on a small nation like Vietnam? That made little sense—until experts realized that Trump’s tariffs really were about the trade imbalance between nations.

Vietnam got a 46 percent tariff rate because it sells so much more to the U.S. than it imports. That circumstance makes sense for a manufacturing center like Vietnam. But hiking tariffs on that basis is like getting mad at the store where you buy your clothes because they don’t buy much from you. But try explaining that to the current White House occupant and you’ll get nowhere, as Vietnam has discovered. (It recently offered to lower its tariffs to zero, but Trump said it wasn’t enough.)

They felt contradictory because on the one hand Trump used them as a harsh negotiating threat to try and strike better deals with our trading partners. So that means the tariffs may not last long if an agreement can be reached.

On the other hand, Trump says he is raising them to bring manufacturing home. But that means the tariffs have to have some permanence about them or no one will make the investment. It’s that uncertainty that has really rocked markets and will reduce incentives to invest. Companies are better off waiting things out to see where they land.

None of this is good for the U.S. or world economy. And while wealthy conservatives are willing to tolerate a lot of Trump’s excesses in order to, say, receive an extension on his massive tax cuts for the wealthy, when these mercurial and frankly idiotic tariff policies tank the markets and wipe out trillions in wealth, that’s where some of them have begun to draw a line.

It’s a sad state of affairs indeed when we find ourselves turning to the Rand Pauls, Mitch McConnells, Chuck Grassleys and even Charles Kochs of the world. Yet only with such strange bedfellows can we find some way out of the economic death spiral Trump has hurled us all into. So let’s look at two of the intertwined ways—through Congress and through the courts—that die-hard conservatives could toss serious sand in the tariff machine gears or even pull the emergency brake on the Trump Train.

Screw your “national emergency”

Most U.S. voters don’t realize this, but we’re in a state of “national emergency” right now… with Canada. On February 1, 2025, Trump declared it so, stating:

I previously declared a national emergency with respect to the grave threat to the United States posed by the influx of illegal aliens and illicit drugs into the United States in Proclamation 10886 of January 20, 2025 (Declaring a National Emergency at the Southern Border). Pursuant to the [National Emergencies Act], I hereby expand the scope of the national emergency declared in that Proclamation to cover the threat to the safety and security of Americans, including the public health crisis of deaths due to the use of fentanyl and other illicit drugs, and the failure of Canada to do more to arrest, seize, detain, or otherwise intercept DTOs, other drug and human traffickers, criminals at large, and drugs. In addition, this failure to act on the part of Canada constitutes an unusual and extraordinary threat, which has its source in substantial part outside the United States, to the national security and foreign policy of the United States. I hereby declare and reiterate a national emergency under the NEA and IEEPA to deal with that threat.

This was, in a word, bullshit. As I’ve written about earlier, there is zero evidence of large amounts of fentanyl crossing over the northern border into the U.S. The amount of fentanyl seized at the Canadian border is miniscule, making up just 0.2 percent of all border fentanyl seizures.

But the proclamation highlights something important: In order to justify his 25 percent tariff on Canada, Trump had to rely on the power to declare “a national emergency under the NEA and IEEPA”—meaning the National Emergencies Act and the International Economic Emergency Powers Act. Those are the legal “hooks” on which Trump is hanging his tariffs.

Congress giveth and can taketh away… in theory

So who handed Trump the power to declare national emergencies like this, even fake ones, and then use them to upend the entire global economic system? It turns out Congress did, Trump argues, using those two laws, the NEA and the IEEPA.

In fact, Trump’s proclamation on “Liberation Day” similarly asserted that the trade deficits amount to a “national emergency” giving him broad powers to put in whatever tariffs he decides we need. As the White House noted in its “fact sheet” that day,

President Trump is invoking his authority under the International Emergency Economic Powers Act of 1977 (IEEPA) to address the national emergency posed by the large and persistent trade deficit that is driven by the absence of reciprocity in our trade relationships and other harmful policies like currency manipulation and exorbitant value-added taxes (VAT) perpetuated by other countries.

News flash: Our trade deficit is not a “national emergency.” If it is, it’s one that’s been around for decades and decades. And that’s simply not what Congress meant by a “national emergency.” There’s no way it meant to hand him so much power as he now claims. But we’ll get to that discussion later.

More immediately, if Congress delegated to the White House the power to declare national emergencies and impose tariffs, it can also take it away. And that’s what Democrats and now a handful of Republicans are saying. End the “national emergency” and you end the tariffs.

The Senate prepares for battle

It didn’t get very much press attention at the time, but on April 2, the Senate held a vote on this very question: Should President Trump’s authority to invoke a “national emergency” over Canada be revoked? The Senate actually passed a joint resolution that would end the state of “national emergency” that Trump declared on February 1, 2025. Sens. Tim Kaine (D-VA), Mark Warner (D-VA) and Amy Klobuchar (D-VA) cosponsored the resolution (S.J. Res. 37) to terminate the bogus state of “national emergency” with Canada. And it passed the Senate 51-48 with four Republican senators—Susan Collins (R-ME), Mitch McConnell (R-KY), Lisa Murkowski (R-AK) and Rand Paul (R-KY) supporting it.

Sen. Paul, who leans libertarian in opposing too much government control, has been particularly outspoken about the White House’s abuse of its emergency power.

“I am a Republican. I am a supporter of Donald Trump. But this is a bipartisan problem,” Paul said. “I don’t care if the president is a Republican or a Democrat. I don’t want to live under emergency rule. I don’t want to live where my representatives cannot speak for me and have a check and balance on power.”

That’s not the only bill in motion. Seven Republican senators have now signed on as co-sponsors of another bill that would require the White House to obtain congressional approval to impose tariffs. The measure is co-sponsored by Sen. Chuck Grassley (R-IA), whose office put out this statement:

Senate Finance Committee Members Chuck Grassley (R-Iowa), a former chairman of the committee, and Maria Cantwell (D-Wash.) today introduced bipartisan legislation to restore Congress’ constitutionally authorized role in setting and approving U.S. trade policy. The Trade Review Act of 2025 would require congressional approval of unilateral tariffs proposed by the executive branch.

Said Grassley, “For too long, Congress has delegated its clear authority to regulate interstate and foreign commerce to the executive branch. Building on my previous efforts as Finance Committee Chairman, I’m joining Senator Cantwell to introduce the bipartisan Trade Review Act of 2025 to reassert Congress’ constitutional role and ensure Congress has a voice in trade policy.”

Specifically, Grassley’s bill would reimpose congressional authority in three key ways: It would require the White House to notify Congress within 48 hours of issuing any new tariffs; it would grant Congress explicit approval authority over any tariffs within 60 days; and it would allow Congress to end any tariff at any time.

But the House toes the Trump line, for now

Neither of these bills is likely to gain much traction in the House, where Speaker Johnson has made it clear he won’t allow them to move forward. Rather, he told reporters that he wants to give Trump “runway” to allow his economic policies to be implemented and time to play out.

Indeed, no one is expecting the GOP House leadership to willingly take up any measure limiting Trump’s authority over economic decisionmaking, no matter how disastrous. But one swing district House Republican, Rep. Don Bacon (R-NE), isn’t waiting for the green light from Speaker Johnson. In fact, Bacon told CBS News he would introduce Grassley’s bill in the House: “I support the legislation that Senator Grassley, Senator Cantwell, we have a total of seven Republicans in the Senate, and I have some beginning support on the House side, which we'll unveil tomorrow.”

Bacon was realistic about the difficult path ahead: “It will be harder to pass this in the House. No doubt. I think if we get 60 votes in the Senate, they'll put pressure on the House to look at this. And if we continue to see the stock market go a certain direction, or if we see inflation or unemployment shift in a bad way, I think then this bill becomes a very viable bill.”

He also reasserted that Congress, not the White House, must create tariff policy. “[T]he Constitution is clear, the House and the Senate, Congress, has the power of tariffs and taxes, and we gave some of that power to the executive branch, and I think in hindsight, that was a mistake.”

A veto could be politically ruinous

Donald Trump doesn’t like what he’s hearing. He’s already come out strongly against proposed limitations on his tariff power. He has said he would veto Grassley’s bill if passed, claiming it would “severely constrain” his tariff powers and “eliminates” his ability to have leverage over foreign countries.

But think about that veto threat for a moment. If the GOP-controlled Congress were to actually pass the bill to end the tariffs (including getting it past the 60-vote filibuster threshold) and then Trump issued a veto, this would become a crushing political rock, one hard for both the GOP and Trump to get out from under. Republicans then would have to decide whether to vote to override the veto (and no doubt fail) or be fully saddled with the consequences of the tariffs come the midterms.

It’s a lose-lose situation.

Sen. Paul has been unsparing in his criticism of the political risks the GOP has undertaken, warning of the downsides should the tariffs persist. In a recent interview, he walked through the history of high tariffs, noting that when President McKinley imposed them in 1890, his party lost 50 percent of their seats, and when Smoot-Hawley raised them in the early 1930s, Republicans lost the House and Senate for 60 years.

“Tariffs are not only bad economically, they’re bad politically,” Paul warned.

Legal challenges from the right

When conservative legal groups sought to take on the power of the administrative state, they probably didn’t figure that their next target might be Trump himself. Their goal has been to strip the executive branch and its federal agencies of the power to “legislate” by way of rules and regulations. Take away the power of the agencies and experts, they argued, and you reduce the power of the government over business interests.

Eliminating executive branch regulatory power is all fine and good when it comes to getting rid of pesky rules around clear air and water, the safety of food and drugs, and the banking and financial sectors. But what about the power to regulate trade?

If conservatives generally don’t like the idea that Congress can simply delegate its power to the executive branch, which results in burdens upon business and industry, then they probably really don’t like the idea that it can delegate the question of broad tariff policy to the White House either, especially when it goes and makes such a colossal mess of things out of the gate.

It turns out, there may be viable court challenges to the Trump tariffs that build upon the successes of the far right in limiting executive branch and agency power. This is all untested stuff, but if there are enough corporate-friendly votes on the Supreme Court, it’s not outrageous to suggest that a court challenge might ultimately succeed where political pressure and legislation could not.

To understand this better, we need to get a bit wonky and talk about two doctrines the conservatives on SCOTUS really love: The “non-delegation” doctrine and the “major questions” doctrine. Again, these doctrines were developed by right wing groups to strip away the power of federal government agencies. But they might now be used to strip away power from the White House itself when it comes to tariffs.

Broad and unspecific delegation of power

Professor Steve Vladeck of Georgetown University recently took a deep dive into the legal question of whether Trump’s asserted tariff authority is vulnerable to attack. I’m going to try and distill his analysis for more general consumption.

Start from the statute Trump relied upon. As you may recall, that’s the International Economic Emergencies Power Act (IEEPA), and it has, per Vladeck, a remarkably broad but also unspecific delegation of power. I want to highlight two words here:

Any authority granted to the President by section 1702 of this title may be exercised to deal with any 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, if the President declares a national emergency with respect to such threat.

So is the threat Trump has identified truly “unusual and extraordinary”—or is it fabricated and pretextual? And who gets to make that decision, just Trump himself?

Looking specifically at Section 1702 cited in that paragraph, it doesn’t actually mention “tariffs. Rather, it allows the President to “regulate” the “importation or exportation of…any property in which any foreign country or a national thereof has any interest….”

That’s remarkably broad and vague language, a fact that may wind up mattering to the courts, as I’ll discuss below.

And notably, no president before Trump has ever used the IEEPA to impose tariffs, and nothing about our trade deficit today is either unusual or extraordinary.

That’s the general state of things going into legal challenges. Now let’s look at two specific avenues for undoing the tariffs.

Non-delegation Doctrine

There’s a school of thought among conservative legal circles that says that the major branches of government should not “delegate” their authority to another branch. That doctrine gets brought up most often when they’re being critical of Congress, which often tells the Executive Branch to implement its laws using federal agencies with greater expertise and know-how.

This doctrine had its heyday in the anti-FDR era nearly 100 years ago, and hasn’t really had much life since, though this Supreme Court has toyed around the edges of it. And certainly, it does appear Congress has delegated a gigantic responsibility to the White House over tariff policy, which is a kind of tax reserved under Article 1 of the Constitution as an exclusive power of Congress.

But as Prof. Vladeck points out, it’s unlikely that a challenge to Trump’s tariffs under non-delegation would prevail in this case. That’s because courts regularly defer to the White House on questions of national security and foreign relations. A successful challenge to the power of the President to declare what is and isn’t a national emergency, or what is or isn’t in our national interest under the IEEPA, is therefore unlikely. Core presidential powers are simply not a good place for proponents of the non-delegation doctrine to make their stand, especially after so many decades.

Major Questions Doctrine

A far more promising avenue for challenging Trump’s tariffs comes from something the Chief Justice appears to have made up himself: the so-called “Major Questions” doctrine. This is more a question of statutory interpretation than one addressing the constitutional delegation of powers. It says that whenever the White House is embarking upon new programs with “vast economic or political significance,” that program must have specific authorization from Congress.

In short, if the White House wants to go big, it has to have the clear go-ahead from Congress. Again, this is nowhere in the Constitution, and the Chief Justice more or less pulled it out from under his robes, but it’s had a big effect already.

For example, the Supreme Court used the Major Questions doctrine to strike down the Biden-era attempt to forgive massive student loan debt. In that case, the administration argued that the HEROES Act authorized the forgiveness program because it gave the Secretary of Education the power to “waive or modify any statutory or regulatory provision applicable to the student financial assistance programs…as the Secretary deems necessary in connection with a war or other military operation or national emergency.” (Emphases added.)

Recall that Biden tried to peg the loan forgiveness to the Covid epidemic emergency. But the majority on the Court didn’t buy that. Taking a look again at the even broader and less specific power that the IEEPA gives the President, there’s at least a strong argument that Trump, like Biden, has tried to embark upon a new program with “vast economic or political significance” without specific authorization from Congress.

Indeed, the fact that Congress is actively trying to claw back that abuse of its authorization is evidence that it did not intend “national emergency” powers to be so used and that Trump’s tariffs are in fact not authorized or even contemplated by the IEEPA.

No matter the outcome of these challenges, whether from Congress and by the courts, one thing is clear: A movement is now afoot to limit presidential power to set tariffs in such an extreme manner. The worse the economic carnage grows, the stronger that movement and pressure will become. It’s built into both the political calculus for GOP Congress members, who see tariffs as an existential threat to their electoral prospects, as well as into the very definition of what constitutes a Major Question—i.e., a “vast economic” one—for the courts.