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Scholars argue that Congress should act to halt expanded presidential trade power.
In recent decades, the U.S. Congress has watched its constitutional authority over foreign commerce dissolve, according to two legal experts. In a recent article, they claim that, under the modern banner of “economic security,” presidents now wield tariffs, sanctions, and trade agreements as weapons.
These scholars—Kathleen Claussen of Georgetown University Law Center and Timothy Meyer of Duke University School of Law—argue that the open-ended justification of economic security allows presidents to recast ordinary trade regulation as matters of foreign affairs. Increased use of the economic security rationale has expanded executive authority, sidelined Congress, and left courts deferential to the executive, they explain.
According to Claussen and Meyer, economic security is not a single statutory concept—it is a modern framing of national security that presidents invoke to justify tariffs, sanctions, and trade restrictions. Once a policy is placed under this label, courts tend to extend the same deference they give to national security decisions. Claussen and Meyer explain that this deference “constitutionalizes” presidential control over trade, allowing for executive actions that combine delegated authority with inherent constitutional claims.
Congress exercises its power to regulate commerce under the U.S. Constitution. But Claussen and Meyer argue that Congress has delegated increasing authority to the President, beginning with authorizing presidents to negotiate tariff reductions in 1934. The Trade Expansion Act of 1962 allowed the executive to restrict imports on national security grounds, while the Trade Act of 1974 expanded presidential discretion to retaliate against unfair trade practices. Claussen and Meyer argue that this legislation, along with the establishment of the Office of the United States Trade Representative, the passage of the International Emergency Economic Powers Act, and limited judicial review, has entrenched presidential control over foreign commerce at the expense of congressional authority.
Claussen and Meyer explain that trade legislation has formalized security-based exceptions to rules that have otherwise liberalized international trade, creating two tracks for the exercise of presidential authority—one for liberalizing trade and another for restricting it. For decades, presidents primarily used the liberalizing track to strike trade deals. But Claussen and Meyer note that, in recent years, the restrictive track has gained prominence.
Presidents from both major political parties have invoked economic security to justify unilateral action. During his first term, President Donald J. Trump claimed economic security authority to impose tariffs on steel and aluminum, levied duties on Chinese imports, and attempted to ban the use of TikTok and WeChat. He further threatened to impose tariffs on Mexico unless it stemmed immigration and hinted at the U.S. withdrawal from the North American Free Trade Agreement.
When some of President Trump’s tariff policies were challenged in court, the government defended them by claiming that Congress appropriately delegated authority, and that the President has independent constitutional power over tariffs. A federal court of appeals upheld those tariffs, relying on Supreme Court precedent and deferring to the executive’s national security determinations.
Claussen and Meyer point out that the Constitution explicitly grants Congress the authority to tax and regulate foreign commerce, arguing that presidential tariff power exists only through delegation and not as an independent authority.
In a case challenging President Trump’s changes to tariffs on Turkish steel, the federal government claimed the President had “inherent authority” to act. A federal court of appeals agreed, reasoning that the Trade Expansion Act permitted the President to adjust an existing tariff “plan of action” even after the statutory deadline. Claussen and Meyer argue that this logic stretches presidential authority into a domain reserved for Congress.
Similar arguments were presented in other disputes, where the government argued that trade actions should be exempt from the usual transparency rules in the Administrative Procedure Act. Courts, however, rejected those arguments, holding that trade actions cannot be shielded by invoking national security or foreign policy.
Furthermore, the Office of the United States Trade Representative has likened trade negotiations to military agreements that presidents can make unilaterally. Claussen and Meyer counter that tariffs act as taxes on imports paid by U.S. consumers, unlike military measures, which bypass typical oversight and transparency mechanisms.
Claussen and Meyer emphasize that by treating economic harms—such as industry job losses or import competition—as “national security” risks, courts have allowed the executive to regulate trade. They argue that this approach blurs the line between economic regulation and national defense, shifting control of foreign commerce from Congress to the presidency and causing an imbalance of powers.
To restore balance, Claussen and Meyer propose three statutory reforms. First, Congress should require automatic sunset of presidential tariffs after 90–180 days unless they are extended by Congress. This reform would alter the current system, in which tariffs lapse only when a supermajority overrides the President.
Second, Claussen and Meyer recommend that Congress bar the executive from using international agreements as authority for regulating goods or services unless authorized or approved by Congress. They posit that this reform would stop presidents from relying on vague or unauthorized agreements to expand their trade powers, and would allow flexibility when Congress grants advance approval.
Finally, Claussen and Meyer suggest that Congress remove the exclusive jurisdiction of the U.S. Court of Appeals for the Federal Circuit over most trade appeals, arguing that moving review to the D.C. Circuit or broadening oversight would reduce reversal rates and ensure that the U.S. Supreme Court addresses separation-of-powers issues.