Restoring Congress's Tariff Power: 120th Congress Plan
Restoring Congress's Tariff Power: How the 120th Congress Can Lawfully Investigate Unauthorized Executive Tariffs, Build the Record, and Legislate So It Never Happens Again
By Corey J. Biazzo, Esq., Biazzo Law, PLLC — part of the Biazzo Law Government Oversight Program. Country over Party. Patriot over Partisan.
In short: The Constitution gives Congress — not the President — the power "[t]o lay and collect Taxes, Duties, Imposts and Excises" and "[t]o regulate Commerce with foreign Nations" (Art. I, § 8, cls. 1, 3). On February 20, 2026, in Learning Resources, Inc. v. Trump, the Supreme Court held 6–3 that the International Emergency Economic Powers Act (IEEPA) does not authorize the President to impose tariffs. The same day, the administration replaced those tariffs with a 10% global surcharge under Section 122 of the Trade Act of 1974, which the Court of International Trade held unlawful on May 7, 2026 — and then rebuilt much of the program on three other statutes (Sections 301, 338, and 232), each now in court. Americans paid well over $100 billion in duties that courts have now ordered refunded. This post gives members of the 120th Congress a lawful, step-by-step plan to investigate how this happened, preserve the evidence, hold officials accountable through lawful channels, make sure every importer is repaid, and pass reforms so that no President of either party can again impose taxes on Americans without Congress — under IEEPA or any other statute.
Key facts at a glance (as of November 13, 2026)
Event | What happened | Status |
IEEPA "trafficking" tariffs (Feb.–Mar. 2025) | Tariffs on Canada, Mexico, and China citing drug-trafficking emergencies | Held unlawful |
IEEPA "worldwide and retaliatory" tariffs (Apr. 2025) | Tariffs on nearly every country citing trade deficits as an emergency | Held unlawful |
V.O.S. Selections v. United States (Ct. Int'l Trade, May 28, 2025) | Three-judge panel held IEEPA does not authorize "unbounded" tariffs and that the trafficking tariffs did not "deal with" the threats cited | Affirmed by the Federal Circuit (en banc) |
Learning Resources, Inc. v. Trump (Feb. 20, 2026) | Supreme Court held 6–3 that IEEPA does not authorize tariffs; Chief Justice Roberts wrote for the Court | Final |
Section 122 surcharge (Feb. 24 – July 24, 2026) | 10% global "balance-of-payments" surcharge imposed the day of the ruling (an announced increase to 15% never took effect) | Ct. Int'l Trade held it unlawful May 7, 2026 (2–1), with relief limited to Washington State and two importers; Federal Circuit stayed that ruling June 11, so duties were collected until the 150-day limit ran out; appeal pending |
Section 301 replacements | 10–12.5% "forced labor" tariffs on 60 economies (July 24, 2026) and a 25% tariff on most Brazilian goods (July 22, 2026); a separate "excess capacity" investigation of 16 economies is pending | Challenged in In re Section 301 Forced Labor Cases (argued Sept. 30, 2026); no decision |
Section 338 (Canada) | First use ever of this 1930 statute to impose a tariff: 50% on about $20 billion of Canadian goods (Aug. 22, 2026), then import bans (Sept. 29) | Challenged in a proposed class action; argument set for January 2027 |
New Section 232 tariffs | Patented pharmaceuticals (100%), large drones (100%), polysilicon (15%, Dec. 4); more investigations pending | In effect or pending |
IEEPA refunds | Ct. Int'l Trade ordered refunds (Atmus Filtration, Mar. 4, 2026); CBP built the CAPE system; about $128.4 billion sent to Treasury for payment as of Nov. 5, 2026; a class of non-suing importers certified Oct. 8, 2026 | The government is appealing the universal refund order; about $166 billion total at issue |
Disclosure: Corey J. Biazzo, Esq. filed an amicus curiae brief in the Supreme Court on October 8, 2025, in Nos. 24-1287 and 25-250, supporting the challengers to the IEEPA tariffs. This post is written for every member of Congress, regardless of party.
What happened with the IEEPA tariffs and their replacements?
1. Emergency tariffs under IEEPA (2025)
In early 2025 the President declared national emergencies and, citing IEEPA (50 U.S.C. §§ 1701–1708), imposed "trafficking" tariffs on Canada, Mexico, and China and then "worldwide and retaliatory" tariffs on goods from nearly every country, treating long-running trade deficits as an "unusual and extraordinary threat." IEEPA had never before been used to impose a tariff.
2. The courts said no
Court of International Trade (May 28, 2025). In V.O.S. Selections, Inc. v. United States, a unanimous three-judge panel held that IEEPA does not confer "unbounded" tariff authority and that "an unlimited delegation of tariff authority would constitute an improper abdication of legislative power to another branch of government" (Slip Op. 25-66, at 28). It also held the trafficking tariffs failed IEEPA's requirement that they "deal with" the stated threat, because "'[d]eal with' connotes a direct link between an act and the problem it purports to address" (id. at 44). The court pointed out that Congress had already written a narrower, time-limited balance-of-payments tool — Section 122 — for trade-deficit problems.
Federal Circuit (en banc) affirmed that IEEPA did not authorize the challenged tariffs.
Supreme Court (Feb. 20, 2026). In Learning Resources, Inc. v. Trump and Trump v. V.O.S. Selections, Inc., the Court held 6–3, in an opinion by Chief Justice Roberts, that IEEPA's authority to "regulate . . . importation" does not include the power to impose tariffs. The Court treated a tariff as a tax — a power the Constitution gives to Congress. A plurality added that "[t]here is no exception to the major questions doctrine for emergency statutes." Justice Kavanaugh, joined by Justices Thomas and Alito, dissented, relying on the text and history of IEEPA and on Federal Energy Administration v. Algonquin SNG, Inc., 426 U.S. 548 (1976), which upheld license fees on oil imports under a statute authorizing the President to "adjust the imports."
3. The replacements
The administration said the Court had "merely overruled a particular use of IEEPA TARIFFS" and that IEEPA's power to "block, embargo, restrict, license" trade remained. It then moved the tariffs onto other statutes:
Section 122 of the Trade Act of 1974 (19 U.S.C. § 2132). A 10% global surcharge took effect February 24, 2026. Section 122 caps such surcharges at 15% and 150 days unless Congress extends them; Congress did not. On May 7, 2026, a divided Court of International Trade held the surcharge unlawful because the proclamation did not identify "balance-of-payments deficits" as Congress understood that term in 1974. Relief was limited to the plaintiffs, the Federal Circuit stayed the ruling on June 11, and the duties were collected until the surcharge expired on July 24. The appeal remains pending.
Section 301 of the Trade Act of 1974 (19 U.S.C. § 2411). In March 2026 the U.S. Trade Representative opened investigations of 60 trading partners and described them as a way to replace the IEEPA tariffs. "Forced labor" tariffs of 10% or 12.5% took effect July 24, 2026, covering economies that account for more than 99% of U.S. imports. A separate 25% Section 301 tariff on most Brazilian goods took effect July 22. A second "excess capacity" investigation covering 16 economies is pending. Small businesses and a 25-state coalition have challenged the forced-labor tariffs; the Court of International Trade heard argument September 30, 2026.
Section 338 of the Tariff Act of 1930 (19 U.S.C. § 1338). For the first time in its history, this statute was used to impose a tariff: 50% on about $20 billion of Canadian goods from August 22, 2026, followed by import bans. Section 338 requires no investigation and sets no time limit. A proposed class action challenges it; argument is set for January 2027.
Section 232 of the Trade Expansion Act of 1962 (19 U.S.C. § 1862). Existing national-security tariffs on steel, aluminum, copper, and lumber remain, and new ones were added on patented pharmaceuticals, large drones, and polysilicon, with more investigations pending.
4. The refunds
Because the IEEPA tariffs were collected without legal authority, the Court of International Trade ordered Customs and Border Protection (CBP) to refund them (Atmus Filtration, Inc. v. United States, Mar. 4, 2026). CBP built a new refund system called CAPE. As of November 5, 2026, about $128.4 billion had been sent to Treasury for payment, out of roughly $166 billion at issue. The court certified a class of importers who never sued on October 8, 2026, but the government argues only importers who filed suit should be repaid and is appealing the universal refund order. Importers with finally liquidated entries face filing deadlines in early 2027.
Why this matters to every citizen: tariffs are paid by American importers and, in large part, passed on to American businesses and consumers. When the executive collects a tax that Congress never authorized, it takes money from Americans without the consent of their elected representatives — the exact grievance the Declaration of Independence lists against King George III: "imposing Taxes on us without our Consent."
What do the Constitution and federal law say about tariffs?
The Framers put the power to tax in the branch closest to the people.
Taxing power (Art. I, § 8, cl. 1): "The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises . . . but all Duties, Imposts and Excises shall be uniform throughout the United States."
Foreign commerce (Art. I, § 8, cl. 3): Congress has power "[t]o regulate Commerce with foreign Nations."
Origination Clause (Art. I, § 7, cl. 1): "All Bills for raising Revenue shall originate in the House of Representatives." Revenue measures must start in the chamber elected every two years.
Bicameralism and presentment (Art. I, § 7, cls. 2–3): a law requires passage by both Houses and presentment to the President.
Appropriations Clause (Art. I, § 9, cl. 7): "No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law" — relevant to how refunds are paid.
Necessary and Proper Clause (Art. I, § 8, cl. 18): Congress may make all laws necessary and proper to carry out its powers, including setting limits on any authority it delegates.
Delegation: what Congress may hand off
Congress may delegate some trade authority if it supplies an "intelligible principle" to guide the executive (J.W. Hampton, Jr., & Co. v. United States, 276 U.S. 394, 409 (1928)). But, as the Court of International Trade explained in V.O.S., an "unlimited delegation of tariff authority would constitute an improper abdication of legislative power." The President's power "must stem either from an act of Congress or from the Constitution itself" (Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 585 (1952)), and the Constitution itself gives the President no power to tax.
The statutes Congress has written
Statute | What it allows | Built-in limits |
IEEPA, 50 U.S.C. §§ 1701–1708 | Blocking, regulating, or prohibiting transactions during a declared national emergency | Held not to authorize tariffs (Learning Resources) |
National Emergencies Act, 50 U.S.C. §§ 1601–1651 | Procedures for declaring and ending emergencies | Congress can end an emergency by joint resolution, which after INS v. Chadha, 462 U.S. 919 (1983), requires the President's signature or a veto override |
Section 122, Trade Act of 1974, 19 U.S.C. § 2132 | Temporary surcharge for "large and serious" balance-of-payments deficits | 15% cap; 150 days unless Congress extends |
Section 301, Trade Act of 1974, 19 U.S.C. §§ 2411–2420 | Action against foreign practices that are unjustifiable, unreasonable, or discriminatory and burden U.S. commerce | Investigation, consultation, notice-and-comment, and determinations by USTR |
Section 232, Trade Expansion Act of 1962, 19 U.S.C. § 1862 | Adjusting imports that threaten to impair national security | Commerce Department investigation and report; limited congressional review |
Section 338, Tariff Act of 1930, 19 U.S.C. § 1338 | Additional duties of up to 50% on countries that discriminate against U.S. commerce | No investigation requirement and no time limit; never used for a tariff until 2026 |
Section 201, Trade Act of 1974, 19 U.S.C. §§ 2251–2254 | Safeguard relief for injured domestic industries | International Trade Commission finding; time limits |
The pattern is clear: every time Congress has delegated tariff authority, it has attached conditions — findings, investigations, caps, or time limits. The administration's strategy after Learning Resources has been to find the statute with the fewest conditions. That is the gap Congress can close.
What the administration argues
Fairness requires stating the other side. The administration has argued that drug trafficking and persistent trade deficits are genuine emergencies that harm national security and American workers; that IEEPA's power to "regulate . . . importation" naturally includes tariffs, as three Justices agreed; that the courts should defer to the President in foreign affairs; that the tariffs produced trade agreements and revenue; and that Sections 301, 338, and 232 — unlike IEEPA — expressly mention duties, so Learning Resources does not reach them. In the Section 301 litigation, the government argues the determinations are largely unreviewable because the President directed them. Those are serious arguments, and some of them may prevail in court. But whether a policy is wise is a question for Congress to decide in the open, by recorded vote — which is exactly what the Constitution requires for a tax.
Does Congress have the authority to investigate executive tariffs?
Yes — and its footing could hardly be stronger. Tariffs are taxes, and the taxing power is Congress's own.
The power exists. "[T]he power of inquiry — with process to enforce it — is an essential and appropriate auxiliary to the legislative function." McGrain v. Daugherty, 273 U.S. 135, 174 (1927).
It reaches as far as Congress's power to legislate and appropriate. "[T]he scope of the power of inquiry . . . is as penetrating and far-reaching as the potential power to enact and appropriate under the Constitution." Eastland v. U.S. Servicemen's Fund, 421 U.S. 491, 504 n.15 (1975) (quoting Barenblatt v. United States, 360 U.S. 109, 111 (1959)). Congress can repeal, amend, or condition every tariff statute discussed above, so nearly every question about how they were used serves a legislative purpose.
It includes oversight of agencies. The power "comprehends probes into departments of the Federal Government to expose corruption, inefficiency or waste." Watkins v. United States, 354 U.S. 178, 187 (1957). It does not include a power "to expose for the sake of exposure." Id. at 200.
The President's own information gets heightened scrutiny. Under Trump v. Mazars USA, LLP, 591 U.S. 848 (2020), courts weigh whether Congress can get the information elsewhere, whether the subpoena is no broader than necessary, the evidence of legislative purpose, and the burden on the President. Records of USTR, Commerce, Treasury, CBP, and other agencies fall under the ordinary standard.
Accommodation comes first. The branches have an "implicit constitutional mandate to seek optimal accommodation." United States v. AT&T, 567 F.2d 121, 127 (D.C. Cir. 1977).
Trump v. United States is not an obstacle here. That decision concerns criminal immunity for official acts. Imposing tariffs rests on authority Congress delegated by statute, not on a "conclusive and preclusive" constitutional power of the President. Congress may investigate how its delegations were used and rewrite them.
A model statement of legislative purpose
The Committee is investigating the use of the International Emergency Economic Powers Act, the National Emergencies Act, Section 122 and Section 301 of the Trade Act of 1974, Section 232 of the Trade Expansion Act of 1962, and Section 338 of the Tariff Act of 1930 to impose duties on imports since January 20, 2025; the legal advice, economic analysis, and findings relied on; the collection and refund of duties later held unlawful; and the economic effects on American businesses, workers, and consumers — in order to determine whether Congress should repeal, amend, or condition these delegations of its Article I, Section 8 taxing and foreign-commerce powers; whether appropriated funds were used as Congress directed; whether unlawfully collected duties are being refunded promptly and fully; and what legislation is needed to ensure that duties are imposed only as Congress authorizes.
Linking each topic to Congress's powers
Topic | Constitutional and statutory hook | Legislation it informs |
IEEPA tariffs and the emergency declarations behind them | Taxing and Foreign Commerce Clauses; National Emergencies Act | Codify that IEEPA never authorizes duties; automatic sunset of emergencies unless Congress approves |
Section 122 surcharge | 19 U.S.C. § 2132 | Define "balance-of-payments deficit"; require findings and congressional notice |
Section 301 replacement tariffs | 19 U.S.C. §§ 2411–2420 | Require country-specific findings and congressional approval for broad, multi-country actions |
Section 338 (Canada) | 19 U.S.C. § 1338 | Repeal or condition a 1930 statute with no investigation or time limit |
Section 232 sector tariffs | 19 U.S.C. § 1862 | Strengthen the national-security nexus and add congressional approval for new actions |
Refunds and CBP's CAPE system | Appropriations Clause; 28 U.S.C. § 1581; 19 U.S.C. § 1514 | Automatic refunds with interest for every importer when duties are held unlawful |
Economic effects on Americans | Taxing and Commerce Clauses | Required economic-impact reporting before any new tariff |
What is a lawful five-phase investigative plan?
The 120th Congress convenes January 3, 2027. Because subpoenas lapse at the end of each Congress, the work starts on day one.
Phase 1 — Organize and preserve (January 2027). Adopt an authorizing resolution or chair's memorandum stating the legislative purpose above. Send preservation letters (see below) to the White House, USTR, Commerce, Treasury, CBP, DHS, and the Justice Department on the first day. Assign bipartisan staff, a trade economist, and a customs-law specialist; invite the minority into document review.
Phase 2 — Build the public record (days 1–60). Collect every proclamation, executive order, Federal Register notice, USTR determination, and Section 232 report since January 2025, and every opinion and filing in V.O.S., Learning Resources, the Section 122 cases, In re Section 301 Forced Labor Cases, the Section 338 litigation, Atmus Filtration, and the refund class action. Ask the GAO for a legal and financial review of duty collection and refunds; the Congressional Budget Office for revenue and economic estimates; and the Congressional Research Service for legal analysis. Use 19 U.S.C. § 1332(g), which lets the House Ways and Means Committee and the Senate Finance Committee direct the U.S. International Trade Commission to conduct factual investigations — for example, on who actually paid the tariffs and how prices changed.
Phase 3 — Voluntary requests and accommodation (days 30–120). Send document requests with reasonable deadlines, offer rolling productions and in-camera review for sensitive trade-negotiation material, and record every exchange. Hear first from those who bore the cost: importers, small businesses, farmers facing retaliation, ports, customs brokers, state attorneys general, and economists of differing views.
Phase 4 — Compulsory process. When agencies refuse or delay, issue narrow subpoenas tied to the stated purpose — agencies first, then career officials, then senior officials, and the President's own information last and only where Mazars can be satisfied. Follow the enforcement options in our subpoena playbook: civil enforcement, criminal contempt referral under 2 U.S.C. §§ 192 and 194, and appropriations and nomination leverage.
Phase 5 — Hearings, report, and legislation. Hold public hearings with the documents in hand, publish a report that separates findings from allegations, vote on joint resolutions to terminate emergencies, and pass the reforms below. Because revenue bills must originate in the House, the House should take the lead on any bill that imposes, repeals, or alters duties.
Which committees have jurisdiction?
Chamber | Committee | Focus |
House | Ways and Means | Tariffs, trade agreements, USTR, customs revenue, refunds; directs ITC studies |
House | Judiciary | Separation of powers, delegation, DOJ litigation positions on refunds |
House | Foreign Affairs | Emergency declarations, IEEPA, Section 338 and foreign relations |
House | Energy and Commerce; Agriculture; Small Business | Effects on manufacturers, farmers, and small businesses |
House | Homeland Security | CBP collection and the CAPE refund system |
House | Oversight and Government Reform | Government-wide oversight, records, GAO coordination |
Senate | Finance | Tariffs, USTR, customs, refunds; directs ITC studies |
Senate | Banking, Housing, and Urban Affairs | IEEPA (jurisdiction over sanctions authorities) and export controls |
Senate | Foreign Relations | Emergency declarations and foreign-policy justifications |
Senate | Homeland Security and Governmental Affairs | CBP, records, National Emergencies Act oversight |
Senate | Agriculture; Small Business | Retaliation and small-business effects |
Both | Appropriations | Funding conditions on USTR, Commerce, and CBP |
Joint | Joint Economic Committee | Economic analysis of tariff effects |
What can members without a gavel do?
Write letters and record requests; ask GAO, CBO, and inspectors general to open reviews; use the "seven-member rule" (5 U.S.C. § 2954) for agency information (its enforceability in court is unsettled); hold forums with affected businesses; file amicus briefs in the pending tariff cases; introduce joint resolutions to terminate national emergencies under 50 U.S.C. § 1622, which receive expedited consideration; and help constituents navigate the refund process.
How should Congress preserve evidence and what should it request?
Preservation letters come first
Send preservation letters to the Executive Office of the President (including the National Economic Council, the Office of Trade and Manufacturing Policy, and the White House Counsel), USTR, the Commerce Department and its Bureau of Industry and Security, Treasury, CBP, DHS, the State Department, the Justice Department's Civil Division, the Office of Legal Counsel, and the National Archives. Letters should cite the Presidential Records Act (44 U.S.C. § 2201 et seq.), the Federal Records Act (44 U.S.C. ch. 31 and 33), and 18 U.S.C. §§ 1505 and 1519; cover text and Signal messages, personal email and devices used for official business, calendars, call logs, drafts, spreadsheets and economic models, and CBP collection and refund databases; and request written confirmation within 10 days. Because subpoenas expire at the end of each Congress (Committee on the Judiciary v. Miers, 542 F.3d 909 (D.C. Cir. 2008)), early preservation protects the record for the full two years.
Documents, data, photos, and videos to request
Topic | Records |
Emergency declarations | Drafts, legal reviews, and the factual basis for each IEEPA national emergency; any Office of Legal Counsel opinion on IEEPA tariff authority |
Tariff rates | How each country's rate was calculated, including any formulas, models, or spreadsheets; who approved them; records of changes announced on social media before formal proclamations |
Section 122 | The economic analysis behind the "balance-of-payments" finding; any Treasury or Council of Economic Advisers views; legal advice on the 1974 meaning of the term |
Section 301 | Investigation files, comments received, country-specific findings, communications describing the actions as replacements for IEEPA tariffs |
Section 338 | The legal basis for first-ever use; findings of discrimination; why no investigation was conducted |
Section 232 | Commerce investigation reports, national-security analyses, exclusion and exemption decisions, and who received them |
Exemptions and exclusions | Requests for tariff exemptions, who made them, who decided, and any contacts with donors, lobbyists, or officials' financial interests |
Market-sensitive announcements | Timing and handling of tariff announcements and pauses, and controls on advance disclosure to anyone outside government |
Revenue and refunds | Daily collection data by authority, CBP's CAPE system design and staffing, refund backlogs, DOJ litigation positions on limiting refunds to importers who sued |
Economic effects | Internal estimates of price, employment, and retaliation effects; farm-aid payments tied to retaliation |
Photos and video | Recordings of public tariff announcements and briefings; any internal presentations or briefing materials used to explain rates |
Witnesses
Witness | Why | Approach |
Importers, small businesses, farmers, port and customs-broker representatives | Who paid and how refunds are working | Voluntary hearing testimony |
State attorneys general and solicitors general from the challenging states | Litigation record and state economic harm | Voluntary |
Former and current career staff at USTR, Commerce, Treasury, and CBP | How decisions departed from normal process | Voluntary interview with counsel; subpoena only if needed; whistleblower protections |
Trade economists of differing views, ITC commissioners, CBO and GAO | Independent analysis | Invitation |
CBP Office of Trade leadership | Refund system and timelines | Invitation, then subpoena if needed |
U.S. Trade Representative, Commerce Secretary, Treasury Secretary | Decisions and legal bases | After the documentary record is built |
Federal employees have a statutory right to communicate with Congress (5 U.S.C. § 7211), and whistleblower reprisal is prohibited (5 U.S.C. § 2302(b)(8)); see our guide Whistleblowers and Congress. Executive privilege belongs to the President, must be asserted specifically, and does not cover ordinary agency economic data or public determinations. A committee seeking presidential communications must show they are "demonstrably critical to the responsible fulfillment of the Committee's functions" (Senate Select Committee on Presidential Campaign Activities v. Nixon, 498 F.2d 725, 731 (D.C. Cir. 1974) (en banc)). For privilege claims by White House advisers, see Stephen Miller, Executive Privilege, and What Congress Can Do.
How can Congress hold officials accountable — lawfully?
Accountability here starts with an honest distinction. Losing a hard statutory question in court is not, by itself, misconduct: three Justices agreed with the administration's reading of IEEPA. Accountability concerns what officials do after the law is clear — whether they comply with court orders, refund what was unlawfully taken, follow the procedures Congress wrote, tell Congress and the courts the truth, and keep personal or political interests out of tariff decisions.
Tool | What it does | Notes |
Public hearings and a written report | Builds a factual record of how each tariff was imposed and how refunds are handled | Separate findings from allegations |
Joint resolutions terminating national emergencies (50 U.S.C. § 1622) | Ends the emergencies underlying IEEPA actions | Expedited procedures; requires presentment and, if vetoed, two-thirds to override |
Power of the purse | Bars funds for collecting duties a court has held unlawful, or for actions beyond statutory limits; funds CBP refund processing | Appropriations riders can pass by simple majority as part of must-pass bills |
Advice and consent | The Senate can examine trade nominees about their legal positions and compliance with court orders | |
Referrals | To inspectors general, the GAO, the SEC (if evidence suggests misuse of market-moving tariff information), or DOJ | A referral is a recommendation, not a finding |
Impeachment | Reserved for serious abuses, such as defying final court orders or using tariff power for personal gain | Should rest on evidence, not policy disagreement; see our model articles and investigative plan |
Amicus briefs | Members can tell courts how Congress understands its own statutes | Useful in the pending Section 301, 338, and 122 appeals |
Guardrails that keep the investigation lawful and fair
State the purpose and stay within it (Watkins; Mazars). Tie every request to the written legislative purpose.
Protect sensitive negotiating material. Use in-camera review and closed sessions for genuinely sensitive trade negotiation records, and public sessions for everything else.
Protect business confidential information. Importer data, pricing, and supply-chain details should be handled under confidentiality agreements, as the ITC and courts do.
Protect career staff and whistleblowers. Career employees who followed lawful instructions are witnesses, not targets.
Respect the Fifth Amendment and immunity rules. Grants of use immunity (18 U.S.C. §§ 6002–6005) can make later prosecution very difficult (United States v. North, 910 F.2d 843 (D.C. Cir.), modified, 920 F.2d 940 (D.C. Cir. 1990)).
No legislative punishment. Reforms must be general rules for every President, not measures aimed at named individuals (United States v. Lovett, 328 U.S. 303 (1946)).
Know the limits of Speech or Debate protection. Committee work is protected; press releases and newsletters are not (Hutchinson v. Proxmire, 443 U.S. 111 (1979)).
Hear all sides. Invite economists and businesses that supported the tariffs as well as those that opposed them. A record that includes both is harder to dismiss.
What reforms should Congress pass so this never happens again?
The lesson of 2025–2026 is that fixing one statute is not enough: when IEEPA was closed off, the tariffs moved to Sections 122, 301, 338, and 232. Reform should cover every tariff delegation and apply to every future President. Model text and veto strategy are in our model bills and veto-proof reforms guides.
# | Reform | Constitutional basis | What it does |
1 | No Taxation Through Emergency Powers | Art. I, § 8, cls. 1, 3 | Amends IEEPA to state expressly that it never authorizes duties, tariffs, fees, or other taxes on imports, codifying Learning Resources |
2 | Congressional approval for new tariffs | Art. I, § 8; Art. I, § 7 | Any new or increased duty under any delegated statute lapses after 60 days unless Congress approves it by joint resolution, with expedited procedures. The bipartisan Trade Review Act (S. 1272) takes this approach |
3 | Emergency sunset | Necessary and Proper Clause | National emergencies expire after a fixed period unless Congress affirmatively extends them, reversing the current rule that requires a veto-proof majority to end one |
4 | Section 122 clarity | Art. I, § 8 | Defines "balance-of-payments deficit," requires published findings by Treasury, and requires notice to Congress before any surcharge |
5 | Section 301 guardrails | Art. I, § 8 | Requires country-specific findings for each trading partner, bars using one investigation to cover dozens of countries without congressional approval, and confirms full judicial review |
6 | Repeal or condition Section 338 | Art. I, § 8 | Repeals the 1930 authority, or adds an investigation requirement, findings, a duration limit, and congressional approval |
7 | Section 232 reform | Art. I, § 8 | Defines the national-security nexus, requires Defense Department input, and requires congressional approval for new actions or derivative-product expansions |
8 | Automatic refunds with interest | Appropriations Clause; Due Process | When a court finally holds a duty unlawful, every importer that paid it is refunded with interest automatically — not only those who sued — and liquidation deadlines are tolled while litigation is pending |
9 | Economic and ethics transparency | Art. I, § 8; Necessary and Proper Clause | Requires publication of rate methodology and economic-impact estimates before tariffs take effect; a public database of exemption requests and decisions; disclosure of lobbying for exemptions; and recusal by officials with financial interests |
10 | Market-sensitive announcement controls | Commerce Clause | Requires tariff changes to be announced through formal channels with controls against advance disclosure, and applies insider-trading rules to tariff information |
11 | Judicial review clarity | Art. III; Art. I, § 8, cl. 9 | Confirms Court of International Trade jurisdiction, authorizes relief for all similarly situated importers, and bars deference to executive interpretations of tariff statutes |
12 | Origination and accountability for revenue | Art. I, § 7, cl. 1 | Requires Treasury to report tariff revenue by statutory authority monthly, so Congress and the public can see what is being collected and under what law |
Other pending proposals reported in late 2026 include a bill to repeal Section 338 and refund the Canada duties and a bill requiring approval of new trade restrictions on NATO allies. Many analysts expect vetoes, which makes appropriations conditions and bipartisan coalitions important. The Trade Review Act's Republican and Democratic sponsors show that protecting Congress's tariff power can be a point of bipartisan agreement.
Let's talk
No taxation without representation is not a slogan from a history book. It is the first principle of American self-government, and it does not depend on which party holds the White House or whether a particular tariff is good policy. If you are a member of the 120th Congress, a committee staffer, a state official, or a career public servant who wants to build a lawful record and restore Congress's control over taxes on Americans, the Biazzo Law Government Oversight Program can help with investigative plans, preservation letters, subpoena strategy, and model legislation. Contact us here.
Companion resources for the 120th Congress
Frequently asked questions
Can the President impose tariffs under IEEPA? No. In Learning Resources, Inc. v. Trump (Feb. 20, 2026), the Supreme Court held 6–3 that IEEPA does not authorize the President to impose tariffs.
Who has the power to impose tariffs under the Constitution? Congress. Article I, Section 8 gives Congress the power to "lay and collect Taxes, Duties, Imposts and Excises" and to regulate foreign commerce. The President may impose tariffs only when, and as far as, Congress has delegated that power by statute.
Are the replacement tariffs under Sections 122, 301, 338, and 232 lawful? That is being decided now. The Court of International Trade held the Section 122 surcharge unlawful, but that ruling was stayed and is on appeal. Challenges to the Section 301 and Section 338 tariffs are pending, and no court has issued a final ruling on them as of November 13, 2026.
Will importers get their IEEPA tariffs refunded? Courts have ordered refunds, and CBP's CAPE system had sent about $128.4 billion to Treasury for payment as of November 5, 2026. The government is appealing the order requiring refunds to every importer, and deadlines apply to some entries, so importers should consult counsel.
Why should consumers care about tariffs paid by importers? Tariffs are taxes collected at the border, and much of the cost is passed through to American businesses and consumers in higher prices. A tax that Congress never voted on is a tax imposed without the consent of the people's representatives.
Can Congress stop future executive tariffs? Yes. Congress can amend or repeal any tariff statute, require congressional approval for new tariffs, set time limits, require findings, mandate automatic refunds, and condition funding. Because a President can veto such bills, bipartisan support and appropriations conditions matter.
Disclaimer
This post is for general informational and educational purposes only. It is not legal advice and does not create an attorney-client relationship. Importers seeking refunds should consult counsel about deadlines that apply to their entries. Facts about pending litigation are current as of November 13, 2026 and may change. Corey J. Biazzo, Esq. filed an amicus curiae brief in the Supreme Court in Learning Resources, Inc. v. Trump and Trump v. V.O.S. Selections, Inc. supporting the challengers.
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