Tariffs and Trade: International Law Expert Timothy Meyer
Duke Law Professor Tim Meyer discusses presidential authority to impose tariffs and the legal challenges that might arise

Tariffs and trade issues have been hot topics of conversation since President Donald Trump promised tough trade policy and immediate tariffs on imports in his presidential campaign. Duke Law Professor Timothy Meyer is an expert in international law—with specialties in international trade and U.S. foreign relations law—and co-director of Duke Law’s Center for International and Comparative Law. He has served as both counsel and expert in international arbitrations and is a qualified chairperson for arbitrations and disputes arising under European Union trade agreements. In this Q&A, Meyer weighs in on the legal issues surrounding trade policy and foreign relations.
What authority does the president have to impose tariffs without Congressional approval?
During his first term, President Trump relied on three authorities. One is Section 232 of the Trade Expansion Act, and that's the authority the administration used to impose national security tariffs on steel and aluminum. The second is Section 301 of the Trade Act of 1974, and that was the basis for the tariffs on China. The third, which ended up being the least significant, is Section 201 of the Trade Act of 1974, which President Trump used to impose tariffs on solar panels and washing machines.
These authorities are incredibly broad, especially Sections 232 and 301, but they all require an investigation of some kind before the administration can act. For example, under Section 232, the Commerce Department has 270 days to investigate and the Commerce Secretary has to make an affirmative determination that there's been a national security threat from the import of whatever product they're investigating. If, for example, the Commerce Department does an investigation and concludes that steel products represent a threat to national security, the president can impose tariffs on steel products. If the Commerce Department concludes that there is no threat to national security, the president lacks the authority to impose tariffs. The Commerce Secretary, of course, serves at the pleasure of the president, so if the president wants a particular finding from the Commerce Department, he is likely to get it.
But a president can't use these authorities to just impose tariffs across the board. You can't, for instance, just use Section 232 to impose a 25% tariff on all imports, or at least nobody has yet suggested that you could do that. And because of the need for an investigation, these authorities do not allow for immediate action in most circumstances. The authority to impose across the board tariffs without any investigation or administrative process, the administration claims, is found in the International Emergency Economic Powers Act. Under that statute, the president can declare a “national emergency” and once he's done that, he has very broad authority to craft any kind of regulation of foreign commerce that he deems a response to the emergency he's declared.
For example, on February 1, President Trump used the International Emergency Economic Powers Act to impose 25% tariffs on Mexican and Canadian imports and 10% tariffs—on top of existing tariffs—on Chinese imports. To gain access to the statutory authority to impose those tariffs, President Trump declared an emergency involving the illegal import into the United States of fentanyl manufactured in and/or imported from those three countries, in addition to a prior emergency he declared involving illegal immigration at the U.S.-Mexico border. But neither the National Emergency Act, which does not define what constitutes an emergency, nor the International Emergency Economic Powers Act require any factual findings by the president or any administrative agency.
What legal challenges might arise from the use of “national emergency” authority?
One of the things that's happened since the first Trump administration is the development of the Major Questions Doctrine, which basically says that if the administration is using a very broadly worded statutory authority to address a significant economic or political question, the courts want to see a clear statement that Congress had authorized whatever the president did.
I suspect that if President Trump leaves in place the tariffs he imposed on February 1 for any length of time, the courts will be asked to decide if the Major Questions Doctrine applies. The International Emergency Economic Powers Act just does not contain the kind of clear authorization from Congress that you would expect to see for what is a massive tax increase that the president is imposing. Indeed, although the statute is very broadly worded, it does not explicitly mention tariffs or taxes at all. So I would expect to see quite a bit of litigation around any across-the-board tariffs that don't go through some of the authorities, like Section 232 or Section 301, that were vetted and litigated during his first term.
What are some of the implications of imposing new tariffs on trade partners?
With respect to Mexico, Canada and the European Union, these are historic U.S. allies. It has the potential to backfire by pushing these countries to look for alternative trading partners or alternative sources of economic partnership. China has been very effective around the world in using soft economic diplomacy and soft power. [Tariffs] create an opening for a country like China to come in and say, ‘We are prepared to be a more stable partner and not deploy these kinds of threats that the U.S. is prepared to deploy.’
It's bad for businesses as well because they can't plan. Tariffs are just taxes on imports. If you don't know whether goods in your supply chain that you might be importing into the U.S. might suddenly be subject to a 25% tax, it makes it very difficult to have a business plan that you can rely on and so it has the potential to be highly disruptive to business and potentially inflationary for consumers.
Tim Meyer explains how the International Emergency Economic Powers Act grants powers to the executive branch to impose tariffs.