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A 2026 United States Supreme Court decision saying the president doesn’t have power to impose tariffs under the International Emergency Economic Powers Act (IEEPA) has received a lot of attention recently, but Duke Law Professor Timothy Meyer says such moves by the executive branch aren’t new.

Instead, Meyer says, there has been an expansion of executive authority in international economic decision making, dating to early 20^th century, that has happened largely with the acquiescence of the other branches.

While the Constitution grants the power to tax and regulate foreign commerce exclusively to Congress, successive administrations have argued that the president’s constitutional authority over national security and foreign affairs gives the president additional leeway, or even an independent constitutional basis, to regulate foreign commerce.

“Functionally, trade policy has really, since the 1930s, been dominated by the executive branch,” Meyer said.

“Presidents of both parties have relied on their constitutional powers along with broad delegations of authority and general statutes that are often quite old to try to advance their policy agenda. This is not a partisan issue.”

Meyer says Congress has, over time, deferred to the president, effectively handing over much of its power in these areas. However, he notes, there are ways for Congress to take back control.

A shift in policy originating in wartime

In Economic Security and the Separation of Powers, Meyer and Kathleen Claussen of Georgetown Law trace the shift on international economic policy to statutes in the late 19^th and early 20^th centuries, such as the Trading with the Enemy Act of 1917 (TWEA), in which Congress began delegating to the president the power to make discretionary choices about how to regulate foreign commerce.

Presidents have used subsequent delegations of authority by Congress to make trade adjustments and impose tariffs. Those include Section 232 of the Trade Expansion Act of 1962, which granted the president power to place restrictions on imports after a determination of national security risk by the U.S. Secretary of Commerce; Section 301 of the Trade Act of 1974, which gives the U.S. Trade Representative broad powers to investigate risks and impose tariffs; and IEEPA, which gives the president broad powers to impose economic sanctions by declaring a national emergency.

Notwithstanding the Supreme Court’s recent discussion striking down the president’s IEEPA-based tariffs, federal courts have generally affirmed the executive branch’s power to regulate and tax imports. In particular, the Federal Circuit Court of Appeals upheld a 25% tariff President Donald Trump imposed on imported steel products under Section 232 and in 2020, and later it held that the president could increase those duties without a new investigation or findings, reversing a Court of International Trade ruling.

Presidential regulation rests on two different kinds of authority—statutory and constitutional—that can be difficult for courts to disentangle, Meyer says.

“In executive actions justified by a mix of constitutional and statutory authority, courts have tended to defer to the president,” Meyer said. “That’s especially true in the context of actions involving foreign affairs."

Reasserting Congressional authority

Meyer and Claussen suggest three statutory reforms Congress could implement to take back its authority over foreign commerce.

Meyer says one option is imposing automatic expiration of tariffs imposed by a president under laws like Section 232 and Section 301 that authorize the imposition of extraordinary tariffs. A 90- or 180-day sunset would require the president to provide justification for why a tariff should be extended, rather than trying to end one that has been imposed, the authors write. For example, section 122 of the Trade Act of 1974, the basis for tariffs President Trump in February 2026 after his IEEPA-based tariffs were struck down, contains a 150-day sunset provision.

Second, Meyer says, Congress could enact a law requiring that no international trade agreements may take effect without its explicit approval. The president could still negotiate deals, but Congress would need to sign off on any agreement changing the way goods are imported, exported, or regulated.

Last, the authors suggest that trade appeals could be handled by the D.C. Circuit Court of Appeals rather than the Federal Circuit Court of Appeals, where they currently reside. The Federal Circuit primarily handles patent cases, while the D.C. Circuit is the dominant court for administrative matters.

“Most international trade law cases in federal court are matters of statutory interpretation and administrative law,” Meyer says. “It makes sense to assign jurisdiction to the D.C. Circuit.”

Meyer acknowledges that any legislative attempt to limit executive power is likely to be met with a veto, requiring a two-thirds majority in each house to overcome it. But as the representative of diverse economic interests, he says, Congress should reclaim its authority over this domain.

“There are good reasons the Constitution gave Congress, not the president, power over commerce,” Meyer said. “It’s in the nation’s best interest. It's up to Congress to restore that balance.”