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President Trump imposed broad tariffs in 2025 using emergency powers. The Supreme Court will soon decide whether he exceeded his authority. But here’s what matters more: even if the justices rule against him, Congress probably won’t do anything about it.
Start with the basic constitutional fact: The Constitution says Congress—and only Congress—has the power to collect taxes and fees on imports. The Founders made sure the power to tax would rest with the branch closest to the people.
Yet presidents gained the ability to impose tariffs almost without limits. Declare a national emergency? You can raise tariffs. Claim it’s a national security issue? Tariffs approved. Claim foreign trade practices are unfair? More tariffs. The president became, in practice, the nation’s tariff-setter—accountable to no one until courts stepped in to challenge him.
Now 63 percent of Americans say the Supreme Court should limit presidential tariff power. Congress has legislation ready to go—the Trade Review Act, which both Republicans and Democrats support, would require congressional approval for tariffs lasting longer than 60 days.
Why Congress Won’t Act
Most Republicans have aligned themselves with Trump’s tariff agenda. Voting against Trump means risking a primary challenge from Trump-backed opponents. The constitutional principle matters less than the political reality: voting to constrain presidential tariff authority reads as rejecting Trump himself.
Democrats face their own conflicting incentives. They’d love to constrain Trump’s tariff power right now. But when they control the White House again, executive flexibility on trade policy could serve progressive priorities—addressing climate change through supply chain regulations, enforcing labor standards, responding to Chinese trade practices. Permanently constraining that flexibility might feel good today but costly tomorrow.
The Trade Review Act’s sponsors understood this. They designed the bill to flip the burden of proof: tariffs would expire automatically after 60 days unless Congress voted to extend them. This means supporters of tariffs have to actively vote to keep them, rather than opponents having to vote to stop them. But it doesn’t solve the veto problem—the bill still faces a presidential veto and the need for a two-thirds supermajority to override it.
Historical Precedent
Congress has tried to reclaim delegated powers before. The Budget and Impoundment Control Act of 1974 created the Congressional Budget Office and constrained presidential authority to refuse spending appropriated funds. The Congressional Budget Office remains important. But even this relatively successful reassertion has been partially worked around. Presidents found ways to stay technically within the law while still controlling spending priorities. Congress often passes continuing resolutions rather than budgets, effectively giving power back to executive agencies.
The pattern is consistent: Congress passes constraints in response to crisis. Initially, presidents comply or appear to comply. Over time, as the crisis fades, executive-branch lawyers find loopholes that preserve presidential flexibility. Members of Congress, distracted by other priorities or divided by partisan incentives, fail to push back. Eventually the formal constraint remains on the books, but its practical effect has diminished.
Congress Lacks Trade Expertise
Congress has lost the ability to make detailed trade policy decisions. Modern tariff policy requires expertise in how to sort products and decide what tariff rate applies to each one, how to determine where products are made in trade agreements, World Trade Organization obligations, and complex negotiations with multiple countries. Congress lacks the staff and technical resources to manage this complexity directly.
The executive branch employs hundreds of trade lawyers, economists, and specialists who analyze tariff impacts and negotiate with foreign governments. The Ways and Means Committee and Senate Finance Committee have shrunk in influence and expertise relative to these executive agencies. If Congress reclaimed tariff authority, it would need to either develop that capacity itself or rely on executive-branch analysis—which somewhat defeats the purpose.
When Congress directly set tariffs in earlier eras—the Tariff of 1890, Smoot-Hawley in 1930—the results weren’t pretty. Intense lobbying by affected industries led to politicians trading favors to protect their local industries, leading to excessive tariffs that many economists blame for worsening economic crises. Congress delegated this authority for a reason.
A Trade Review Act requiring congressional approval for tariffs would mean Congress voting on dozens or hundreds of specific tariff proposals each year, each laden with technical details, each subject to intense lobbying pressure. Some members would welcome that visibility and direct input. Others would prefer the current arrangement, where they can criticize executive-branch tariff decisions while avoiding responsibility for making those decisions themselves.
Congressional Options After a Court Ruling
If the Supreme Court rules against Trump’s tariffs, Congress would have options.
The Congressional Review Act
The CRA, enacted in 1996, provides a faster way for Congress to cancel specific executive actions through a vote to reject the action. Congress could use the CRA to reject Trump’s specific tariff proclamations.
The problems are immediate. The CRA establishes specific time periods for congressional action, though the precise application of these deadlines to the 2025 tariffs depends on when the rules were formally submitted to Congress and the specific session days counted—procedural details that may have already foreclosed this option. Tariffs announced through executive order might not count as “rules” under the CRA. More fundamentally, the CRA addresses only specific tariffs, not the underlying statutory authorities. Even if Congress successfully used it to overturn Trump’s tariffs, the laws that enabled him would remain available for any future president.
The Trade Review Act
Introduced by Representatives Jeff Hurd, Don Bacon, Josh Gottheimer, and Gregory Meeks, with a Senate companion from Maria Cantwell and Chuck Grassley, this legislation represents the most concrete effort to reclaim congressional tariff authority in the modern era.
Presidents must notify Congress within 48 hours of imposing or increasing tariffs. The tariffs last 60 days unless Congress enacts a joint resolution of approval to extend them. Congress could terminate any tariffs at any time through a joint resolution of disapproval—which can pass with a simple majority in both chambers. However, if the president vetoes that joint resolution, Congress would need a two-thirds supermajority to override the veto, making practical termination significantly more difficult than the simple majority threshold suggests.
Comprehensive Reform
The most ambitious approach would be rewriting the laws that currently let presidents impose tariffs—repealing or substantially amending the laws that give presidents this power. A reform might permit presidents to impose temporary tariffs up to a certain level without congressional approval, but require explicit approval for higher tariffs or longer-term measures.
It would need to go through the full legislative process—committee reviews, floor debates, amendments, and negotiations between the two chambers. It would invite intense lobbying from industries with different tariff interests and from the executive branch itself, which would vigorously resist constraints on presidential authority. And it would require overcoming the procedural and political barriers that have made major legislation increasingly difficult to pass in recent years.
What the Court’s Decision Determines
The specific content of the Court’s decision matters for what Congress could realistically do next.
If the Court rules narrowly that the International Emergency Economic Powers Act doesn’t authorize tariffs—saying that “regulate importation” doesn’t give the president power to impose tariffs—then IEEPA tariffs would be invalidated, but Section 232 and Section 301 tariffs would remain available. Trump could simply call tariffs national security measures instead and continue implementing them. Congress might not feel urgent pressure to act.
If the Court rules more broadly that presidential tariff authority is limited by a legal principle requiring explicit congressional approval for big economic decisions, then even Section 232 and Section 301 might be subject to challenge. This would give Congress a reason to act, claiming the Court’s decision required legislative clarification.
A Supreme Court decision saying Trump’s tariff authority is legal would effectively eliminate the possibility of congressional action, because it would remove any judicial basis for challenging executive actions taken under the statute.
Conditions for Congressional Action
For Congress to reclaim meaningful tariff authority, several conditions would need to change.
First, there would need to be significantly greater political will across party lines to care more about following the Constitution than about winning elections. Both parties would need to believe their long-term interest was served by Congress rather than the president making decisions about tariffs. Currently, each party prefers executive flexibility when their party holds the White House and legislative constraints when the other party does.
Second, there would need to be either a weakening of Senate filibuster rules or a time when one party controls Congress and wants to take back this power. The filibuster can be changed—it’s been modified before. But changing it would be controversial and invite the other party to retaliate later.
Third, Congress would need to develop greater institutional capacity and expertise in trade policy. This would require investing more resources in the Ways and Means and Finance committees, or in Congress’s own research and analysis teams.
Fourth, there would need to be clearer public demand. While 63 percent of Americans support limiting presidential tariff power in the abstract, the issue isn’t a major focus of political debate. For Congress to risk the political costs of reclaiming tariff authority, there would likely need to be more intense and sustained public demand.
Most fundamentally, Congress would need to decide whether it could make better tariff decisions. The Constitution clearly says Congress should make these decisions. But the executive branch’s trade experts might make better decisions than members of Congress in a complex global economy.
The Structural Problem
The American constitutional system places extraordinary faith in legislative power. The Founders designed Congress to be the dominant branch, closest to the people, most accountable for consequential decisions about taxes and spending and war and trade.
But Congress has gradually given up its power over trade and tariffs to the executive. It faces formidable obstacles to reasserting that authority even when a majority of the public supports doing so and even when the Supreme Court might invite such reassertion.
The filibuster, partisan incentives, technical complexity, and institutional decline all conspire against legislative action. The result is a system in which constitutionally delegated power rests with the executive, it’s unclear who’s responsible for these decisions, and both parties have incentive to preserve executive flexibility even as they criticize its use.
This is about a century-long trajectory of Congress giving up its power that no single Supreme Court decision or legislative proposal is likely to reverse. The Trade Review Act represents a genuine attempt to reclaim constitutional authority. It has thoughtful sponsors, bipartisan support, and a design that balances executive flexibility with congressional oversight.
It probably won’t pass. History suggests that even if it did, it would face gradual erosion—creative executive-branch interpretations, congressional distraction, partisan incentives that shift with control of the White House, and power gradually shifting back to the president.
The Supreme Court’s pending decision in Learning Resources, Inc. v. Trump will determine whether President Trump exceeded his authority when imposing broad tariffs in 2025. A ruling against the administration would represent the courts saying the president can’t use emergency powers this way.
But even a clear Supreme Court victory for those challenging the tariffs won’t automatically lead to Congress reclaiming the tariff authority the Constitution grants it. That would require political will that’s difficult to mobilize in an era of deep polarization, narrow majorities, and strong partisan incentives to preserve executive flexibility for one’s own party while criticizing its abuse by the other side.
Congress could pass the Trade Review Act. It could rewrite the laws that give the president this power. The constitutional case for such measures is strong, and precedent shows Congress can sometimes successfully reassert delegated powers.
But Congress would need to want to take back this power. Until one party is willing to constrain executive power in a way that might benefit the opposing party, until both parties agree that congressional control of tariffs would serve the national interest better than executive discretion, Congress will likely continue to exercise tariff authority primarily through criticism of executive decisions rather than through direct legislative control.
The most probable outcome remains the status quo: a system in which Congress delegates authority to the executive, complains about how that authority is used, and lacks the political will to take back what the Constitution grants it.
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