The 1977 Law That Governs Presidential Emergency Economic Powers

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The Supreme Court heard arguments about President Trump’s tariffs on November 5, 2025. As of Friday, February 13, 2026—99 days later—the justices still haven’t issued their decision, though the case remains pending before the Court. That delay tells you something the oral arguments couldn’t: the justices disagree on how to limit presidential power without breaking the emergency authority framework itself.

Fast-tracked cases usually take 39 to 67 days from argument to decision. The tariff case has now exceeded even the upper end of that range by approximately one month. When the Court moves this slowly on a case it scheduled quickly, the delay itself becomes evidence—not of laziness, but that the justices can’t agree on *why* to limit the power or *how much* to limit it.

The case challenges billions in tariffs Trump imposed by declaring national emergencies and using the International Emergency Economic Powers Act (IEEPA), a law that was supposed to constrain presidential power, not expand it. Those tariffs are collecting roughly $1 billion per day.

What the 1977 Law Says—And Doesn’t Say

Notice what’s missing: the word “tariff.” The word “duty.” Any explicit mention of the power to tax imports.

The Trump administration argued that “regulate importation” includes tariffs—that they’re regulatory restrictions on goods, not taxes. But Congress knows how to authorize tariff authority when it wants to. Section 232 of the Trade Expansion Act explicitly uses phrases like “adjust imports” and authorizes the President to impose “duties or other import restrictions” after a Commerce Department investigation.

Congress knows how to be specific about tariff power in other laws. Why be vague here?

Why Lower Court Unanimity Makes the Supreme Court’s Job Harder

When lower courts agree, it makes the Supreme Court’s job harder, not easier. The justices can’t say one judge got it wrong and reverse. If they want to reverse and uphold the tariffs, they have to explain a new legal principle about why IEEPA means something different from what two unanimous courts concluded.

That requires real constitutional work. They’d need to explain which past court decisions they’re overruling or distinguishing, articulate a new theory of emergency economic authority, and grapple directly with whether allowing unlimited presidential tariff power violates the Constitution’s assignment of taxing authority to Congress.

And if they affirm the lower courts? The complexity remains. They still have to articulate the precise limits on IEEPA, explain what emergency declarations do and don’t authorize, and potentially address whether some narrower form of presidential tariff authority might survive.

Either way, the lower court unanimity removes the ability for the justices to fix a small mistake and move on. They have to directly address whether Congress or the President controls tariffs.

Three Legal Paths for Limiting Presidential Emergency Authority

The first option is to look at what the law says. Congress knows how to delegate tariff authority explicitly, and its failure to use that language in IEEPA signals no such delegation occurred. The justices could say: “We’re not changing how courts review laws that give power to the President. We’re simply declining to infer sweeping tax authority from ambiguous text when Congress knows how to speak clearly about tariffs, and when the legislative history shows Congress intended to constrain rather than expand emergency authority.”

That might appeal to Chief Justice Roberts and others concerned about institutional legitimacy. It’s narrow and doesn’t require breaking new constitutional ground.

The second framework is the major questions doctrine, which requires Congress to be crystal clear when giving the President power over huge economic decisions. Imposing tariffs affecting hundreds of billions in international commerce, impacting domestic prices and consumer costs, and raising massive federal revenue qualifies as a major question. IEEPA’s broad wording might work for other situations, but it doesn’t clearly allow this much tariff power.

The problem: major questions doctrine remains contested, and Justice Alito and others have expressed skepticism about applying it to foreign affairs and national security contexts.

The third framework is the nondelegation doctrine—the constitutional principle that Congress can’t hand over its power to make laws without clear rules limiting what the President can do. If the President can set tariffs however he wants during an emergency with no limits, that violates the Constitution’s rule that only Congress can create taxes.

Most likely, the decision will employ some combination of these frameworks. The delay suggests the justices are negotiating what the decision will say and how to explain it, seeking language that can command a majority while articulating principles that future presidents, lower courts, and Congress can reliably understand.

What Oral Arguments Revealed

The November 5 oral arguments showed a Court skeptical of the government’s position but divided on how far to go in limiting it. Justice Sotomayor asked whether calling a tariff “regulatory” instead of a “tax” changes what it is when it brings in billions for the government.

The Refund Problem

If the justices strike down the tariffs, what happens to the money already collected? Importers who paid tariffs don’t automatically get their money back. They have to challenge the tariffs in court or with customs officials and go through a complicated process. The longer tariffs remain in place pending Supreme Court resolution, the larger the pool of collected funds grows, and the more difficult the refund process becomes.

A previous case involving unconstitutional customs duties offers a cautionary example. In a case about an unconstitutional harbor tax, a special refund process eventually paid back about $730 million over two years. That meant setting up a system for importers to claim refunds, checking who paid, figuring out how much each person was owed, and handling the paperwork.

The justices might try to limit refunds by only stopping tariffs going forward—stopping tariffs from now on but not refunding tariffs already paid. Justice Jackson wrote in a past case that when a law breaks the Constitution, you don’t always have to refund people—you stop doing it.

Justice Gorsuch disagreed strongly, saying people should get refunds when they’re charged illegally and that the majority was doing painful surgery to avoid refunding people for an illegal fee.

If Jackson wants to avoid big refunds, the justices might find a way to stop the tariffs without paying back all the money already collected. But if Gorsuch and others think people deserve full refunds, they have to figure out how to do that without creating an impossible mess.

All of this math may be why the decision is taking so long. They aren’t deciding if the law allows tariffs. They’re also figuring out what to do if they decide the tariffs are illegal, and that question has massive financial and administrative implications.

Presidential Emergency Authority After This Decision

The Supreme Court’s resolution will have implications far beyond tariffs. The decision will set rules about how much power the President has in emergencies and how courts should check that power.

If the justices agree with the lower courts, they will make clear that the President can’t use this law for massive tariffs, and that declaring an emergency doesn’t give the President more power than Congress gave him. This would give Congress back some control over tariffs and let courts enforce the law’s limits on the President.

If they overturn the lower courts and allow the tariffs—unlikely but possible—it would give the President much more power and weaken the Constitution’s checks on that power.

Most likely, the justices will split the difference: allowing the President to use tariffs for real emergencies but not for the broad tariff program Trump created. This would address the lower courts’ worry that unlimited tariff power breaks the Constitution’s rules about who controls what, while still letting the President act in real emergencies.

Why 99 Days Matters

The delay isn’t slow paperwork. It’s evidence the justices understand how important this is and are taking time to write a decision that correctly explains the Constitution’s limits on presidential power—even as each day of delay adds billions to tariff revenue that may eventually need refunding and as businesses continue paying duties whose legality remains uncertain.

When the Court takes time even on fast-tracked cases, it shows the justices disagree not on who wins but on why and how much the decision should change the law. When the justices decide fast—like the TikTok case in a week or Bush v. Gore in a day—it means either there’s a deadline forcing speed or almost all of them agree.

Taking 99 days—50 percent longer than usual—almost always means the justices probably agree the tariffs should be stopped, but disagree on how strictly to limit the President’s emergency powers in the future.

Chief Justice Roberts cares about keeping the Court’s reputation in cases about who controls what. His history suggests he’ll try to get as many justices as possible to agree, and stress that law, not politics, is driving the decision. The delay may show he’s trying to get Justice Kavanaugh and others to agree, even if it means writing something that respects different views about trusting the President on foreign policy and limiting his power.

As of mid-February 2026, they haven’t released the decision. Big controversial decisions usually come in June or July to give time for writing and getting justices to agree. The decision could come anytime through June. The long delay suggests multiple justices will write separate opinions explaining their different reasons for limiting the President’s power.

Whatever they decide will be a major ruling about how much power the President has in emergencies, whether courts can limit that power in foreign policy, and whether the Constitution still stops Congress from giving the President too much power.

The Constitutional Stakes Beyond Tariffs

This case reaches beyond trade policy into fundamental questions about separation of powers. If the President can impose hundreds of billions in tariffs by declaring an emergency without clear congressional authorization, what other economic powers might future presidents claim under IEEPA or similar statutes?

The 1977 law was designed to prevent exactly this kind of expansive interpretation. Congress specifically rejected the broad emergency powers presidents had exercised under earlier laws. The legislative history shows lawmakers worried about unchecked executive authority over the economy. They wanted to create a framework that preserved presidential flexibility for genuine emergencies while preventing the kind of sweeping economic intervention Trump’s tariffs represent.

If the justices uphold these tariffs, they risk undermining that careful congressional design. Future presidents could cite this precedent to justify other aggressive uses of emergency authority—potentially affecting financial markets, investment flows, or other aspects of international commerce that Congress never intended to place under unilateral presidential control.

Conversely, if they strike down the tariffs too broadly, they might hamstring legitimate presidential responses to actual emergencies. The challenge is articulating a principle that distinguishes genuine emergency measures from policy preferences dressed up as crisis response.

That distinction matters for more than tariffs. It affects how courts will evaluate presidential emergency declarations across multiple policy areas, from immigration to public health to financial regulation. The justices are writing not for this case alone, but for the next several decades of emergency power litigation.

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