Wentong Zheng on Presidential Tariffs

University of Florida law professor Wentong Zheng has posted a new paper called "Presidential Tariffs," in which he argues that the IEEPA should not be interpreted to allow the President to proclaim tariff modifications for the purpose of entering into market-opening trade agreements, given that Congress allowed the President’s tariff proclamation authority to expire on July 1, 2021. Here's the abstract:

The Constitution of the United States grants the power to lay and collect tariffs exclusively to Congress. Yet for almost a century, the President has gradually asserted control over the most significant aspects of the U.S. tariff policy.  This crescendo of presidential tariff power culminated in the imposition of worldwide “reciprocal” tariffs under the International Emergency Economic Powers Act (“IEEPA”) by the second Trump Administration.  Legal actions challenging the President’s authority to impose such tariffs are currently pending before federal courts, with appeals widely expected to reach the U.S. Supreme Court.

This Article analyzes the proper contour of the presidential tariff power from the lenses of both statutory interpretation and constitutional separation of powers.  After situating the current tariff events in a historical context, the Article traces three major discretionary authorities over tariffs that Congress has delegated to the President: the trade agreements authority, the national security authority, and the international emergency authority.  This Article argues that these three discretionary authorities need to be analyzed holistically, across statutory schemes when dissecting whether Congress has delegated a tariff authority under the IEEPA and whether such delegation violates the nondelegation doctrine.

Utilizing this cross-statutory interpretative approach, this Article argues that when imposing the worldwide reciprocal tariffs under the IEEPA, the President is indeed negotiating and entering into trade agreements for the purpose of opening foreign markets for U.S. products.  Since 1934, Congress has specifically and repeatedly delegated to the President an authority to proclaim modifications of tariffs without congressional approval in precisely such a context, but that authority last expired on July 1, 2021.  This Article argues that the power to regulate importation under the IEEPA, which is ambiguous, should not be interpreted to allow the President to do what Congress has disallowed the President to do under other unambiguous statutes regulating the very same presidential action, given that Congress allowed the President’s tariff proclamation authority to expire.  This interpretation of the IEEPA, based on statutory interpretation alone, would avoid difficult constitutional separation-of-powers dilemmas.