It looks like President Donald Trump will just have to “check the [right] statutory box” and reimpose the reciprocal tariffs following the Supreme Court’s ruling striking down the President’s emergency tariffs from April 2025, effectively overturning Yoshida v. United States that had upheld President Richard Nixon’s across the board tariffs from 1971 under the Trading With the Enemy Act (TWEA).
The disappointing Supreme Court decision rules that a president cannot impose tariffs under the International Emergency Economic Powers Act (IEEPA) — even though the statute uses the identical language that existed under TWEA that Nixon used in 1971, and the 1977 House Report on IEEPA itself said the new grant of authorities “basically parallels” section 5(b) of the old law.
Congress could not have been more clear in 1977 with the House Report that the International Emergency Economic Powers Act “defines the international emergency economic authorities available to the President in the circumstances specified in section 202. This grant of authorities basically parallels section 5(b) of the Trading With the Enemy Act.”
The good news is that under the same ruling, very similar tariffs can still be levied by a president under Section 232 for national security, Section 301 for unfair trade practices, Section 201 safeguards, Section 122 balance-of-payments surcharges, Section 338 retaliatory duties and so forth. So, let’s go do that instead.
And there’s always straight up trade sanctions that the President can deploy. In the interim, the President should use full IEEPA embargoes while due diligence is performed under the other explicit tariff statutes by the Secretary of Commerce and U.S. Trade Representative to pressure trade partners to achieve U.S. policy interests.
Block trade if necessary with countries who are harming America while the new tariffs are drawn up and go through the processes Congress explicated. Do everything by the book, obviously. But instead of threatening emergency tariffs in foreign negotiations, just upgrade the threats to embargoes. Enact a few embargoes immediately to show they have teeth if any foreign nation thinks the Supreme Court just gave it carte blanche to run roughshod over American works.
In the meantime, Congress should revise IEEPA to explicitly restore tariff authority for all presidents — require reauthorization every four or five years if needs be to get it passed — so it can be used as the powerful national security and foreign policy tool it was always meant to be.
The Supreme Court’s decision completely ignored Congress’ explicit intent to retain all of the authorities of Trading With the Enemy Act, with the limits being a properly declared emergency with all due notice.
The limitation that Congress enacted in 1977 was to put the exercise of the emergency economic powers — which admittedly include the power to “regulate… importation” — to the terms of the 1976 National Emergencies Act.
That was the limited intent of the IEEPA as Congress was highly attentive to the fact that it did not wish to hinder a future president’s ability to deal with a bona fide emergency in the “national security, foreign policy or econom[ic]” sphere. That’s it.
It never intended to overturn the President’s ability to impose TWEA-like tariffs, because it told us so. Justice Kavanaugh’s dissent is correct. Now Congress must fix it.
The implication at the moment is that a president can just suspend all trade with a sanctioned country under IEEPA but not levy tariffs to achieve similar policy goals.
In 2025, President Trump ended eight wars abroad in part with the mere threat of tariffs. If Congress cannot figure out how that kind of leverage is useful — and far less disruptive than total embargoes — for all presidents to achieve U.S. national security interests abroad, then maybe we need a new Congress that is not bought and paid for by foreign interests.
The President should remind Congress of how disruptive embargoes can be. Make every member vote on the record. And keep the embargoes in place until the legislation passes — because passing it will end the need for them.
If the Supreme Court thinks that using sticks of dynamite is forbidden by carpet bombing embargoes are okay, that’s fine, bombs away, I guess, Mr. President. Then, get the new tariffs spun up and urge Congress to give the surgeon back his scalpel.
Robert Romano is the Executive Director of Americans for Limited Government.
