Tariffs on Trading Partners: Can the President Actually Do That?

Though Congress holds power over regulating commerce with foreign nations, it has incrementally delegated significant authority to the president, giving him broad discretion to take trade actions.
February 2025

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President Donald Trump has promised to enact sweeping tariffs on U.S. trading partners. At a September campaign event in Pennsylvania he stated, “I don’t need Congress” to impose tariffs, “I have the right to impose them myself.”[1] To date, Trump has said he would impose a wide range of tariffs, including a 10–20 percent universal tariff on all U.S. imports, a 25 percent tariff on Canada and Mexico, a 60 percent tariff on China, and a 100 percent tariff on the BRICS countries (Brazil, Russia, India, China, and South Africa, as well as new members Egypt, Ethiopia, Indonesia, Iran, and the United Arab Emirates) if they try to create a currency that competes with the U.S. dollar. These bold promises have prompted many to ask: Can the president actually do that?
Trade experts will be the first to point out that Article 1, Section 8 of the Constitution grants Congress the express authority “To lay and collect Taxes, Duties, Imposts and Excises” and “To regulate Commerce with foreign Nations.” However, though Congress retains an important oversight function and maintains the exclusive power to make trade agreements into law, it has delegated some of its tariff-setting authority to the executive branch over the years, with the scope of that delegation unclear.
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The president’s authority on trade stems in part from ambiguous statutory language. Some claim that the president can take trade actions under his Article II foreign affairs powers. Furthermore, the growing securitization of trade, where many economic issues are framed as essential for national security, has strengthened arguments for the president’s trade powers and weakened Congress’ authority. Thus, while Congress remains central to checking presidential overreach, the president enjoys broad discretion to take trade action.
Understanding the ways that President Trump could pursue his trade policy goals begins with explaining why Congress has delegated some of its authority to the executive and noting the ways that the last two administrations took advantage of ambiguity in the law.
Why Congress Delegated Trade Authority
Early U.S. trade policy focused on the questions of how tariffs should be applied and what they should be used for. As explained by economic historian Douglas Irwin, tariff policy was largely driven by different interests clashing over the political and economic geographies of their respective populations. From 1763 to 1865, tariffs were mainly seen as a source of revenue. However, after the Civil War, tariffs became a tool for protecting domestic industry as the South lay devastated and Northern industrialists and Midwestern farmers found common cause in fending off competition from Europe. This period culminated in the Tariff Act of 1930—commonly referred to as the Smoot-Hawley Tariff—which raised tariffs to the highest level in U.S. history. The consequences were quickly felt. Foreign trading partners retaliated, setting off a global trade war that exacerbated the growing economic crisis in the United States, which would then plunge the country into the Great Depression.[2] It is in this context that Congress considered delegating tariff authority to the executive branch, attempting to insulate future actions from falling prey to parochial interests.
To address the Great Depression and prevent further congressional logrolling, Congress passed the Reciprocal Trade Agreements Act of 1934 (RTAA). Marking the origin of fast-track authority, the RTAA granted the president advanced approval to negotiate trade agreements in exchange for concessions from trading partners and to increase or decrease tariffs by up to 50 percent of Smoot-Hawley levels without requiring action from Congress.[3] This shift paved the way for a trade policy that would consider the interests of the country as a whole and allow the president to negotiate agreements to liberalize trade, support U.S. economic recovery, and advance broader foreign policy goals. Congress tempered this newfound presidential authority by subjecting the RTAA to renewal every three years. In total, it was renewed eleven times. As figure 1 shows, U.S. tariffs have followed a downward trend since Congress delegated trade authority to the president, with that trend finally reversing during the first Trump administration.
However, tariffs were not the only trade issue impacting U.S. foreign economic relations. The growth of nontariff barriers—such as subsidies and regulatory hurdles—required an expanded approach to the RTAA, especially as multilateral trade negotiations on the General Agreement on Tariffs and Trade (GATT), the predecessor to the World Trade Organization (WTO), were underway. Accordingly, the John F. Kennedy administration spearheaded the Trade Expansion Act of 1962, which gave additional authority to the president to change existing tariffs up to 50 percent of current rates and allowed for unlimited reductions in tariff rates under 5 percent. The president was also given flexibility to negotiate nontariff barriers in the context of comprehensive trade negotiations. In addition, mounting Cold War geopolitical concerns prompted Congress to grant the president further authority to take trade actions; under Section 232, the president was permitted to use tariffs in cases where a specific imported product would “threaten to impair national security.”[4]
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It would not be until the Trade Act of 1974 that Congress institutionalized fast-track trade authority. Section 101 gave the president the ability to reduce tariffs by up to 60 percent or increase them by 20 percent on existing rates during trade negotiations. This power expired in 1979, but at the time it was critical to increase the credibility of commitments made by the executive branch in international negotiations, as it ensured that trade agreements submitted to Congress would not be subject to amendments. Congress still maintained an important oversight role by requiring strict consultation timeframes and reporting requirements, allowing the executive branch to confer with Congress and course correct where necessary. The Trade Act of 1974 also included Section 301, which gave broad authority to the U.S. trade representative to investigate unfair foreign trade practices that harmed U.S. competitiveness, and take retaliatory tariff actions or negotiate the removal of those unfair practices.
Four additional bills further adjusted the delegated authorities, which also served to reemphasize the role of Congress in trade policymaking. The 1984 Trade and Tariff Act required the Office of the United States Trade Representative (USTR) to begin consultations with the House Ways and Means Committee and the Senate Finance Committee “60 legislative days before giving the statutorily required 90-day notice of intent to sign a [trade] negotiations.”[5] This enabled Congress greater capacity to set negotiation guidelines, helping the government arrive at a unified position prior to the start of negotiations. Because agreements would ultimately return to the same committees for approval and implementation, the president was incentivized to take congressional views into account.
The 1988 Omnibus Trade and Competitiveness Act asserted further congressional oversight by introducing a procedural mechanism for the committees to reverse fast-track processes if the executive failed to follow the consultation process.[6] This act addressed concerns about growing power imbalances between the two branches of government and mandated collaboration. Importantly, this legislation originated in Congress and outlined objectives that the executive branch should pursue during the course of trade negotiations.[7]
Finally, the Trade Act of 2002 granted the president authority to further reduce tariffs up to 50 percent while outlining some limitations on the president’s negotiating authority. The last legislation on trade promotion authority was the Bipartisan Congressional Trade Priorities and Accountability Act of 2015, which lapsed in 2021. It included an extensive list of negotiating objectives to guide presidential action.
How Trump Levied Tariffs in His First Term
Throughout his first administration, Trump used his delegated trade authorities to impose tariffs against adversaries and allies alike. While the president has had those powers for some time, Trump broke from longstanding norms in their application, most evident in his administration’s use of Section 232 and Section 301 tariffs. Though those trade tools were created for historic geopolitical and economic concerns, they remain unaltered. With ample ambiguity in those statutes, Trump was able to interpret those authorities with significant discretion, stretching their application beyond their original intent.
While Section 232 enables the president to impose tariffs on imports for national security purposes, it does little to define what constitutes a national security threat. Making use of the statute’s vague definitions, the Trump administration launched eight investigations, covering steel, aluminum, automobiles and auto parts, uranium ore and product, titanium sponge, transformers and certain grain-oriented electrical steel parts, mobile cranes, and vanadium.[8] Across those investigations, national security claims were made on weak grounds. For example, in the steel investigations, the Trump administration asserted that import restrictions were necessary to secure a reliable domestic supply of steel resources for military use. However, the military not only utilizes merely 3 percent of total domestic steel and aluminum production, but U.S. steel imports predominantly come from military allies, such as Canada, with very limited amounts coming from China and Russia.[9]
Together, the eight investigations pursued by the Trump administration amounted to 24 percent of all 232 investigations initiated since its creation in 1962, and the first application since 1986.[10] And, out of those eight investigations, six were found to involve threats to national security by the Department of Commerce, accounting for 40 percent of all such determinations historically.[11] Table 1 shows the outcome of all Section 232 investigations from 1963 to 2022.
Similarly, Trump expanded the use of Section 301 of the Trade Act of 1974, which allows for tariffs or other trade restrictions in response to unfair trade practices. Following an investigation by USTR, Section 301 had become nearly obsolete after the creation of the WTO because U.S. law limited its use. In particular, Trump refused to bring Section 301 disputes that involved violations of WTO rules to that organization’s dispute-settlement body.[12] Instead, USTR self-initiated all six of the Trump administration’s 301 investigations, using vague language to obscure the specific trade rules that were allegedly being violated, insisting that the actions did not neatly fall within the purview of the WTO. Figure 2 shows Section 301 investigations from 1975 to 2024.
This approach was made possible by the level of authority granted to USTR by the statute: “the USTR and the USTR alone decides whether a certain foreign trade practice is covered by trade agreement rules, and there is no express requirement that Section 301 cases all proceed through the agreement’s dispute settlement system.”[13] The lack of a check on those determinations enabled the Trump administration to pursue Section 301 remedies, even in cases where the contested trade practices were arguably within the bounds of WTO law.[14]
Trump’s trade representative, Robert Lighthizer, pushed the boundaries of traditional delegated fast-track authorities further. For example, before consultation could advance with Congress on the United States-Mexico-Canada Agreement (USMCA), Lighthizer issued a draft of the Statement of Administrative Action, which typically kicks off the congressional review process and sets the clock for a vote on implementing legislation. House Speaker Nancy Pelosi (D-CA) warned that this action was “not a positive step” and “indicates a lack of knowledge on the part of the Administration on the policy and process to pass a trade agreement.”[15] His actions emphasized the growing lack of balance between the president and Congress on trade policy.
Trump’s current willingness to use his delegated trade authorities and work without Congress is not new, nor is he is alone in abusing those authorities. President Joe Biden kept Trump’s 232 policies largely in place and expanded existing Section 301 tariffs on China, including a 100 percent tariff on Chinese electric vehicles.[16] Despite the fact that only 22 percent of stakeholders submitting comments to the Section 301 review process supported their continuation, the Biden administration has expanded the Trump 301 tariffs, and has also overseen a similarly opaque exclusion process.[17] (See table 2.) In total, USTR self-initiated two 301 investigations under the Biden administration, and received a petition for two additional investigations, though one was withdrawn. While the total amount of 301 investigations in recent years is still low, it is a departure from the overall decline in the use of 301 since the creation of the WTO.
Furthermore, Biden drew criticism from a bipartisan group of lawmakers for insufficient consultation with Congress on the president’s signature trade initiative, the Indo-Pacific Economic Framework.[18] They expressed that “there appears to be a misunderstanding as to whether an agreement like IPEF, which aims to regulate foreign commerce and reshape international trade flows, requires similar approval. It does.”[19]
And, after the Biden administration claimed to conclude a trade agreement with Taiwan, Congress took action to reassert its role in trade negotiations, passing legislation requiring Trade Promotion Authority–like transparency and consultative mechanisms for any subsequent deals, while still ratifying the agreement.[20] Upon signing the bill, Biden issued a statement that he would treat those requirements “as non-binding” in situations that “would impermissibly infringe upon [his] constitutional authority to negotiate with a foreign partner.”[21] Here, Biden appears to have blended the president’s Article II treaty powers with Congress’ express Article I powers to regulate trade. Law professors Kathleen Claussen and Timothy Meyer assert that while “the executive may enjoy more latitude to engage with trading partners in the absence of legislation to the contrary . . . once Congress has spoken, the executive is bound to adhere to any rules or restrictions that Congress may make.”[22]
As such, Biden effectively legitimized Trump’s trade policies and provided him, in his second term, with the ability to pick up work on several policies that he started. As political scientist Daniel Drezner observes, Biden’s “logically contradictory foreign economic policy” may just have “paved the way for more protectionism.”[23] Questions remain about what Trump will do over the next four years, but in the absence of executive restraint and congressional action to effectively rein in presidential abuse of trade authority, not much stands in the way of an expansive executive trade policy.
Ways That the President Can Raise Tariffs
In the run-up to and aftermath of the 2024 presidential election, Trump made a series of bold trade policy proposals. On February 27, 2023, he outlined a four-year plan to phase out all Chinese imports, impose restrictions on U.S. companies investing in China, and ban federal contracts for any companies that outsource to China.[24] By June 2023, he proposed the Trump Reciprocal Trade Act, which would allow the president to impose reciprocal tariffs on countries with rates on U.S. goods that are higher than those imposed by the United States.[25] And, in the last few months, he has called for imposing a range of broad tariffs including a 10–20 percent universal tariff, 10–60 percent on China, 25 percent on Canada and Mexico, and up to 100 percent on BRICS nations should they create a rival currency to the U.S. dollar. He has also threatened to revoke China’s permanent normal trade relations (PNTR) status, among many other threats.[26] There are a variety of ways that Trump can execute this trade agenda; some have been referenced in the America First Trade Policy.[27]
Section 301 of the Trade Act of 1974
As noted, Section 301 of the Trade Act of 1974 grants the USTR authority to investigate and take action against unfair foreign trade practices. During the first Trump administration, six Section 301 investigations were launched by USTR. Notably, five of the cases were brought against U.S. allies, including the EU and France.[28] The only investigation that led to the imposition of tariffs however was against China, which kicked off the U.S.-China trade war.
With the experiences from his first administration and Biden’s continued use of Section 301 tariffs against China, Trump could, in theory, expand existing Section 301 tariffs. Trump could also plausibly impose new tariffs as the law grants the USTR full oversight to identify “an act, policy, or practice of a foreign country that is unreasonable or discriminatory and burdens US commerce,” grants Congress no authority over whether USTR should impose a Section 301 remedy, and sets no limit on the duration of a Section 301 action.[29] Just before Biden exited office, his USTR released the findings of its last 301 investigation and “determined that China’s targeting of the maritime, logistics, and shipbuilding sectors for dominance is actionable under Section 301.”[30] The incoming USTR now has the opportunity to pick this up and determine what action, if any, is needed to address it. Thus, while Section 301 tariffs are not as broad a tool as Trump would need to impose universal or country-wide tariffs, he could still leverage the law for targeted actions.
Section 232 of the Trade Expansion Act of 1962
Where Section 301 tariffs respond to unfair trade practices, Section 232 of the Trade Expansion Act of 1962 authorizes the president to modify imports through the imposition of tariffs or quotas where there is an identified threat to national security resulting from an investigation pursued by the Department of Commerce. With no clear definition outlining what constitutes a national security threat, there is broad room for interpretation.[31] As political scientist Drezner highlights in Foreign Affairs, the set of what are considered national security threats and priorities have increasingly expanded: “From climate change to ransomware to personal protective equipment to critical minerals to artificial intelligence, everything is national security now.”[32] The Trump administration has also been the first to assert that “economic security is national security,” as stated in the 2017 National Security Strategy.[33]
Such a broad definition of national security threats expands the range of justifiable Section 232 applications. While it would result in a more narrowly defined trade restrictions, limited to the product level, Trump could launch Section 232 investigations through the Department of Commerce, as he did for steel and aluminum. Importantly, the courts are unlikely to challenge the president’s authority on Section 232. Recent analysis from the Center for Strategic and International Studies demonstrates that the courts routinely defer to presidents on trade policy and the use of Section 232 tariffs, citing USP Holdings, Inc. v. United States and American Institute for International Steel (AIIS) v. United States as examples.[34] Scott Lincicome and Clark Packard from the Cato Institute likewise argue that “recent history indicates that domestic and international institutions might be unable or unwilling to check a broad unilateral tariff action implemented by the president.”[35]
The International Emergency Economic Powers Act
The International Emergency Economic Powers Act (IEEPA) permits the president to regulate imports in response to 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” if a national emergency has been declared related to that threat.[36] The language is broad enough to allow for a variety of potential actions, including raising tariffs. Procedurally speaking, for Trump to impose tariffs under IEEPA, he would have to issue an executive order declaring a national emergency, enabling him to invoke IEEPA as a corresponding action so long as Congress does not push back through a joint resolution of disapproval, which is unlikely.
While no president has used IEEPA to impose tariffs, President Richard Nixon used its precursor statute, the Trading with the Enemy Act of 1917, to impose a 10 percent tariff on all imports into the United States.[37] Trump is well aware of this potential course of action, having previously announced his intention to use it to impose a 5 percent tariff on all goods imported from Mexico on May 30, 2019, during ongoing discussions over the final text of the USMCA.[38]
Although Trump ultimately did not invoke the statute, Congress’ response offered valuable insights into the process. Notably, much of the controversy over the announcement for members of Congress stemmed from the fact that the president did not cite the IEEPA in Proclamation 9844, which declared a national emergency at the southern border. The ensuing debate in Congress was thus not over whether the IEEPA could be used to impose tariffs, but rather whether its use had to be cited in the initial executive order declaring the national emergency, or whether Trump could simply reference the national emergency declaration in a subsequent executive order.[39]
Despite efforts from members of Congress to restrict the IEEPA’s use for increasing tariffs, little tangible progress has been made.[40] Consequently, the IEEPA remains one avenue through which Trump could enact broad-based tariffs on all imports, though it would likely face significant legal action.
Section 338 of the Tariff Act of 1930
An additional route Trump could take to impose tariffs would be to invoke Section 338 of the Tariff Act of 1930. Under this law, the president has the authority to unilaterally raise tariffs up to 50 percent of the product’s value after the U.S. International Trade Commission makes a finding that a foreign country has discriminated against U.S. commerce.[41] If this discriminatory treatment persists, the president can further block imports from that country. No president has made this finding. While there have been a handful of instances where Section 338’s use has been considered, it has never been used to impose trade restrictions. Its use would reasonably invite retaliation from targeted countries.
Revoking Permanent Normal Trade Relations with China
Trump has directly threatened to revoke permanent normal trade relations (PNTR) with China, which would have a significant impact on U.S.-China trade relations. When China joined the WTO in 2001, the United States granted this legal status, affording the country nondiscriminatory treatment. This means that Chinese imports receive all the basic trade benefits extended to other countries aside from additional preferences granted through free trade agreements or development assistance agreements, which get special rates listed in Column 1 of the U.S. tariff schedule. Nearly every country trades with the United States under those terms. Only four countries are not covered by PNTR—Belarus, Cuba, North Korea, and Russia—and instead receive the duty rates listed in Column 2 of the Harmonized Tariff Schedule.[42]
Column 2 rates reflect the 1930 Smoot-Hawley law and vary in size depending on the product at issue. For instance, the law imposed high tariffs on manufactured goods and farm products but granted low tariffs for many natural resource goods. This is precisely why the impact on Russia and Belarus, who had PNTR revoked at the outset of the invasion of Ukraine, was so limited. As the Progressive Policy Institute’s Ed Gresser explains, the penalties on Russia “in most cases” were “not very significant” due to the composition of Russia’s exports, which include a lot of natural resources, such as crude oil, specialty metals, diamonds, and pig iron.[43]
On the other hand, China’s export profile would result in a more significant impact if its PNTR status were to be revoked. Megan Hogan, Warwick McKibbin, and Marcus Noland identified the increase in weighted-average tariffs after revocation of China’s PNTR status by sector, based on increase in percentage point: tariffs in the nondurable manufacturing sector would increase by 42.9 percentage points; tariffs in the durable manufacturing sector by 36.9 percentage points; agriculture, forestry, fishing, and hunting by 24.5 percentage points; mining by 5.7 percentage points; and energy by 1.1 percentage point.[44] Table 3 shows the top fifteen goods imported from China in 2023 by their total import value and details the different tariff rates. The MFN (most favored nations) rate is the standard rate for all WTO members; the 301 tariffs were introduced by the Trump administration and expanded by the Biden administration; the Column 2 rates are the Smoot-Hawley rates; and the final column shows the potential tariff on China for those imports if PNTR is revoked and the 301 tariffs remain in place. At the moment, there is no indication that 301 tariffs would be removed if China loses PNTR.
Revoking PNTR for China would thus have the effect of raising tariffs nearly across the board. While the president would need Congress to pass necessary legislation, Congress has already shown some appetite for such action. In November 2024, Jon Moolenaar (R-MI), chairman of the Select Committee on the Chinese Communist Party, introduced the Restoring Trade Fairness Act, which included the revocation of PNTR for China.[45] The U.S.-China Economic and Security Review Commission’s 2024 annual report to Congress similarly calls for the repeal of PNTR for China, explaining that doing so “could reintroduce annual reviews of China’s trade practices, giving the United States more leverage to address unfair trade behaviors. This move would signal a shift toward a more assertive trade policy aimed at protecting U.S. industries and workers from economic coercion.”[46] President Trump acknowledged this congressional activity by calling on his incoming secretary of commerce and USTR to “assess legislative proposals . . . and make recommendations regarding any proposed changes to legislative proposals.”[47]
The President Can Actually Do a Lot on Trade, for the Most Part
Since 1934, Congress has increasingly delegated trade authority to the president, and recent years have witnessed a robust exercise of those delegated powers. This is by no means a comprehensive set of potential avenues that the president can use to take action, as there are many other creative possibilities at his disposal.
The president’s delegated powers have significant implications for the United States and its leadership in the international trading system. Critically, in taking unilateral action, the president risks injecting uncertainty in the global economy. This move could create economic instability and encourage U.S. trading partners to look elsewhere. Eschewing negotiation for new trade rules and instead going at it alone also undermines the United States’ role as a global institution-builder. The current trading system is based on a core set of values that the United States was crucial in constructing; today, the United States risks not only undoing the system it has tremendously benefitted from but marginalizing its leadership position within it.
Ultimately, because Congress was responsible for the delegation of its trade authority to the executive, it also has the power to rein in its abuses.[48] For any changes to U.S. law, including the implementation or withdrawal of a trade agreement, Congress reigns supreme. Congress also retains the right to consultation, and when consultations are not forthcoming, it has the power to subpoena administration officials to provide testimony of their actions. While Congress has taken some action to push back in recent years, it has fallen short of asserting its full authority. At the same time, if Congress aligns with President Trump’s agenda, there is little that will stand in his way.