Trump Considers Declaring National Emergency to Speed Tariff Rollout

Donald Trump’s unwavering faith in the power of tariffs was on display again this week as he threatened to use import taxes "at a very high level" against Denmark in his quest to acquire Greenland, and the president-elect is reportedly now considering declaring a national emergency once he takes office to speed the rollout of a new set of tariffs potentially aimed at friends and foes alike.

CNN’s Kayla Tausche reports that, according to multiple sources she has spoken to, Trump is considering the use of the International Economic Emergency Powers Act, a 1977 law that empowers the president to regulate international commerce when there is an extraordinary threat to the nation. Invoking the IEEPA would empower Trump to manage imports during a declared national crisis, providing legal authorization to impose tariff increases.

Although no final decisions have been made on how tariffs will be handled in the coming months, Trump did not shy from using emergency powers for a variety of purposes in his first administration. According to Andrew Boyle of the Brennan Center for Justice at NYU Law School, Trump declared emergencies relying on the IEEPA at least eight times in various contexts. "Once unlocked, its powers are sweeping," Boyle writes, adding that the law provides few guardrails on what the president can do under its authority.

Trump linked the IEEPA specifically to tariffs at least once during his first administration. In 2019, he threatened to impose tariffs on imports from Mexico using IEEPA powers in response to illegal immigration coming across the border, but did not do so after Mexican officials took action to slow the flow of migrants. In another trade-related incident, Trump in 2019 claimed that he ordered U.S. importers to look for alternative suppliers located outside of China, using his IEEPA powers, but no formal declarations were ever made.

Kelly Ann Shaw, a trade attorney who worked in the first Trump administration, told CNN that the IEEPA could work for the incoming president’s stated intention of imposing higher tariffs on many if not all exporters to the U.S. "I think the president has broad authority to impose tariffs for a variety of reasons, and there are a number of statutory bases to do so," she said. "IEEPA is certainly one of them."

An analysis published by the law firm Skadden, Arps, Slate, Meagher & Flom indicates that the IEEPA could be the basis of an increase in tariffs against specific countries, including China, Mexico and Canada, though such a use is untested. "To invoke IEEPA, President-elect Trump would need to declare a national emergency under the National Emergencies Act," the analysts wrote. "In this case, he presumably would declare a national emergency with respect to drug trafficking, particularly involving fentanyl, and with respect to illegal immigration."

It’s not clear, however, whether the law would cover a universal tariff against all exporting nations, as Trump has threatened.

The president has other options for managing tariffs. As CNN’s Tausche notes, Section 338 of the Tariff Act of 1930 empowers the president to impose new duties against countries that are discriminating against the U.S. in trade. The use of that provision lacks a recent track record, however, having not been used since 1949, according to attorneys at the firm Covington & Burlington.

Additionally, Section 301 of the Trade Act of 1974 empowers the executive to impose tariffs or other restrictions on foreign products after determining that "an act, policy, or practice of a foreign country is unreasonable or discriminatory and burdens or restricts United States commerce." Trump used that authority during his first administration to impose tariffs on China, many of which are still in place. But that statute requires a formal investigation before any new tariffs can be imposed, which may be too high a hurdle for a new administration looking for immediate results.