Who Has the Power to Tariff? Congress After the 2026 Midterms
The short answer
The Constitution gives the power to tax — including tariffs — to Congress, not the President. On February 20, 2026, the U.S. Supreme Court held 6–3 that the International Emergency Economic Powers Act (IEEPA) does not authorize the President to impose tariffs. But broad tariffs remain in place under other statutes Congress passed decades ago, and only Congress can decide how much of its taxing power it wants to keep delegating.
The Congress Americans elect on November 3, 2026, takes office on January 3, 2027. Whichever party controls it, that Congress will face a basic choice:
Keep the status quo: let Presidents of either party set and reset tariffs on most imports, using emergency and trade statutes with few practical checks.
Reclaim Article I: narrow those delegations, require congressional approval for broad or lasting tariffs, and restore the oversight votes that Congress has, at times, chosen to set aside.
This is not a question of left or right, or of whether tariffs are good policy. Reasonable people disagree about trade. The question is who decides. The Framers placed the power to tax in the branch closest to the voters for a reason. Country over party. Patriot over partisan.
Biazzo Law's Government Oversight Program filed an amicus curiae brief at the U.S. Supreme Court urging the Court to hold that the President cannot impose these taxes without Congress. This post explains what the Court decided, what has happened since, what it costs American families and businesses, and what a new Congress can do.
What happened? The emergency tariffs and the court fight
In early 2025, the President declared national emergencies under IEEPA, a 1977 sanctions law, and used them to impose tariffs on nearly every country. Two sets were challenged:
"Trafficking" tariffs (February–March 2025): 25% on most goods from Canada and Mexico and 20% on goods from China, tied to fentanyl and border emergencies.
"Reciprocal" tariffs (April 2, 2025): a 10% baseline duty on imports from all trading partners, with higher rates of 11% to 50% for 57 countries, tied to an emergency declared over persistent trade deficits.
Small businesses — a wine importer, a pipe maker, an educational toy company and others — and twelve States sued. The courts below ruled against the tariffs at every level:
Date | Court | Result |
Nov. 5, 2025 | U.S. Supreme Court | Oral argument in the consolidated cases |
Aug. 2025 | Federal Circuit (en banc, 7–4) | Affirmed that the tariffs exceeded IEEPA |
May 29, 2025 | U.S. District Court for D.C. | Held IEEPA authorizes no tariffs at all (Learning Resources) |
May 28, 2025 | U.S. Court of International Trade (3-judge panel, unanimous) | Declared the tariff orders invalid and permanently enjoined them (V.O.S. Selections) |
The Court of International Trade opened its opinion with the constitutional premise: the Constitution assigns Congress the exclusive powers to "lay and collect Taxes, Duties, Imposts and Excises" and to "regulate Commerce with foreign Nations." It declined to read IEEPA as delegating unbounded tariff power.
What each side argued
The Government argued that IEEPA's authority to "regulate … importation" plainly includes tariffs, a traditional tool for regulating trade since the Founding. It relied on United States v. Yoshida (1975), which upheld President Nixon's 1971 import surcharge under IEEPA's predecessor. It argued that courts should defer to the President in foreign affairs, that the major-questions doctrine does not apply to the President in that field, and that IEEPA itself gives Congress — not judges — the job of checking emergency powers. It warned that losing would be "catastrophic" for trade deals and national security.
The challengers argued that "regulate" has never meant "tax" in Congress's vocabulary. IEEPA never mentions tariffs, duties or revenue, while every real tariff statute does — and with strict limits. They added that reading "regulate … exportation" to include taxes would collide with the Constitution's ban on export taxes. And they argued that the major-questions and nondelegation doctrines forbid finding a trillion-dollar taxing power in a vague emergency statute.
What the Justices asked at oral argument
The November 5, 2025 argument transcript shows that the separation of powers was front and center. Chief Justice Roberts observed that, while tariffs face foreign nations, the vehicle is the imposition of taxes on Americans, which has always been the core power of Congress. Justice Gorsuch pressed what Congress could do to retrieve power once it is handed over, given the President's veto. He called it a one-way ratchet toward the gradual accretion of power in the executive branch and away from the people's elected representatives. Justice Alito asked how refunds of collected tariffs could possibly be handled. Several Justices also questioned the challengers about where the line between a regulation and a tax falls.
What did the Supreme Court decide?
On February 20, 2026, the Court held 6–3 that IEEPA does not authorize the President to impose tariffs. It affirmed the Federal Circuit in Trump v. V.O.S. Selections (No. 25-250). In Learning Resources v. Trump (No. 24-1287), it vacated the D.C. district court's judgment because the Court of International Trade has exclusive jurisdiction over these claims.
The majority (Chief Justice Roberts, joined by Justices Sotomayor, Kagan, Gorsuch, Barrett and Jackson): The words "regulate" and "importation" cannot bear the weight of a power to tax all imports. IEEPA does not mention tariffs or duties. No President in IEEPA's nearly fifty-year history had read it that way. Reading "regulate" to include taxes would also make the statute partly unconstitutional, because IEEPA covers exports and the Constitution forbids taxing exports.
A three-Justice plurality (Roberts, Gorsuch, Barrett) added that the major-questions doctrine independently defeats the Government's reading. When Congress delegates tariff power, it does so in explicit terms and with strict limits.
Concurrences:
Justice Gorsuch wrote separately on the nondelegation doctrine and on Congress's own responsibility to legislate rather than leave tariff policy to the President.
Justice Kagan, joined by Justices Sotomayor and Jackson, agreed with the result but said ordinary statutory interpretation was enough, without the major-questions doctrine.
Justices Barrett and Jackson also wrote separately.
Dissents: Justice Kavanaugh, joined by Justices Thomas and Alito, argued that tariffs are a traditional means of regulating imports, that other statutes could support most if not all of the tariffs, and that the ruling could disrupt trade deals and require costly refunds. Justice Thomas also wrote separately on the historical scope of the tariff power.
What the Court did not do: It did not decide how refunds would work, and it did not rule on tariffs imposed under other statutes. Those gaps are exactly where Congress now matters most.
Our amicus brief at the U.S. Supreme Court
On October 8, 2025, Corey J. Biazzo, Esq., through Biazzo Law's Government Oversight Program, filed an amicus curiae brief supporting the businesses challenging the tariffs in both consolidated cases. The brief argued:
Article I vests the taxing power in Congress. A tariff is a duty, and a duty is a tax. Article II gives the President no power to impose one on his own.
IEEPA and the National Emergencies Act do not authorize a presidential tariff program. IEEPA's verbs — block, regulate, prohibit — are the verbs of sanctions, not taxation. When Congress delegates tariff power, as in Sections 122, 232 and 301 of the trade laws, it says so expressly and adds findings, time limits and review.
The major-questions and nondelegation principles confirm that reading. A decision to tax nearly all imports is a decision of vast economic significance that Congress must make clearly, if at all.
Lasting changes to the separation of powers belong to Congress and the Article V amendment process, not to executive orders or litigation.
The Court's majority reached the conclusion the brief urged: IEEPA does not authorize these tariffs. Its reasoning tracked several of the brief's themes, including that IEEPA never mentions tariffs and that Congress delegates tariff power expressly and with limits. To be precise, an amicus brief does not represent any party, and the Court did not state that it adopted any argument in our brief. Many other amici also filed.
Official Supreme Court docket, No. 24-1287 (Learning Resources, Inc. v. Trump): supremecourt.gov/docket/docketfiles/html/public/24-1287.html
Official Supreme Court docket, No. 25-250 (Trump v. V.O.S. Selections, Inc.): supremecourt.gov/docket/docketfiles/html/public/25-250.html
Read the brief: https://www.supremecourt.gov/DocketPDF/24/24-1287/379179/20251008214716172_Biazzo%2010.08.25%20Amicus%20Brief%20to%20File.pdf
What has happened since the ruling?
The IEEPA tariffs ended, but broad tariffs did not. The President moved to other statutes Congress had already delegated, and Congress has not enacted any law reshaping tariff authority.
Date | Development |
Sept. 30, 2026 | CRS lists active tariffs under Section 232 (steel, aluminum, copper, autos, trucks, lumber, semiconductors, pharmaceuticals and more), Section 301 (Brazil; "forced labor" tariffs on 60 economies) and Section 338 (50% on selected Canadian goods) |
July 24, 2026 | Section 122 surcharge expires at its 150-day limit; Congress does not extend it. Section 301 "forced labor" tariffs of 10%–12.5% on 60 economies take effect the same day |
May 2026 | Court of International Trade holds the Section 122 surcharge unauthorized for the plaintiffs before it; the Federal Circuit stays that ruling pending appeal |
May 11, 2026 | About $35.5 billion in IEEPA refunds, with interest, approved so far |
Apr. 20, 2026 | Customs opens its refund system for an estimated $166 billion owed to more than 330,000 importers |
Mar. 2026 | USTR opens Section 301 investigations into dozens of trading partners; 24 States sue over the Section 122 surcharge |
Feb. 24, 2026 | A 10% global surcharge takes effect under Section 122 of the Trade Act of 1974, which caps such tariffs at 15% and 150 days |
Feb. 20, 2026 | Supreme Court holds IEEPA does not authorize tariffs |
Feb. 11, 2026 | House passes a resolution to end the Canada tariff emergency, 219–211, with six Republicans joining |
Feb. 10, 2026 | House rejects, 214–217, a rule provision that would have blocked votes on ending the tariff emergencies until July 31 |
How Congress handled its own review powers
The National Emergencies Act gives each chamber a fast-track vote to end a national emergency. During 2025, House leadership repeatedly used procedural rules to suspend those votes on the tariff emergencies: in March, in April and again in September 2025. The House majority approved each of those rules. That pattern broke on February 10, 2026, when three majority-party members joined the minority to defeat a fourth such rule. The next day, the House voted to end the Canada tariff emergency. The Senate had also passed resolutions disapproving several tariff emergencies in 2025. None became law, and a veto was widely expected.
That history is the heart of the matter. The Supreme Court resolved one statute. But Congress, not the courts, controls whether the many other tariff delegations still on the books are used with — or without — its continuing consent.
What are tariffs costing the economy?
Tariffs are paid by U.S. importers when goods cross the border, and much of that cost flows to American businesses and consumers. As of July 24, 2026, Yale's nonpartisan Budget Lab estimated:
Measure | Estimate |
Average statutory U.S. tariff rate | 11.1%, projected to reach 11.8% by year-end |
Long-run consumer price increase | About 0.7% |
Cost per household | About $1,100 per year |
Federal revenue | About $1.9 trillion over ten years, before accounting for slower growth |
For comparison, the average U.S. tariff rate was in the low single digits before 2025.
Costs Americans have already felt
Unlawful taxes, slow refunds. Roughly $166 billion in IEEPA tariffs were collected from more than 330,000 importers under a law the Supreme Court held did not authorize them. Refunds began in April 2026, but many businesses carried that cash cost for more than a year. Consumers who paid higher prices generally have no direct refund path, which has spawned class-action suits against retailers.
Small businesses carry the risk. The lead plaintiffs were small companies — a wine importer, a pipe maker, an educational toy company. Unlike large firms, they have little room to absorb sudden cost increases or reroute supply chains.
Uncertainty. Rates changed repeatedly through executive orders, pauses and new proclamations. Businesses cannot plan hiring, pricing or investment around a tax that can change overnight.
Risks ahead
Legal whiplash. The replacement tariffs face their own litigation, including challenges to the Section 122 surcharge. A future reversal could trigger another refund cycle.
Retaliation. Trading partners can respond with their own tariffs on American exports, including farm goods and manufactured products.
Pricing pass-through. Section 232 and 301 tariffs on steel, aluminum, copper, lumber, semiconductors and pharmaceuticals can raise costs for builders, manufacturers and patients.
Policy by emergency. Any authority used this way today will be available to the next President of either party, for that President's priorities.
The case supporters make
Supporters of the tariffs argue they raise substantial revenue, encourage manufacturing investment in the United States, and give negotiators leverage that produced new trade agreements. Those are serious policy arguments that deserve debate. Our point is structural: that debate belongs in Congress, with recorded votes, because the Constitution makes tariffs a tax.
What trade powers does the President lawfully have?
Real ones — because Congress gave them. Article II makes the President the nation's chief diplomat and Commander in Chief, and the Supreme Court has long recognized broad executive latitude in foreign affairs. But Article II contains no power to tax. Every presidential tariff power today exists because Congress delegated it by statute:
Statute | What it lets the President do | Built-in limits |
Section 232, Trade Expansion Act of 1962 | Adjust imports that threaten national security | A Commerce Department investigation and findings first |
Section 301, Trade Act of 1974 | Respond to unfair foreign trade practices, including with tariffs | A USTR investigation, findings and public comment |
Section 122, Trade Act of 1974 | Impose a temporary surcharge for balance-of-payments problems | Capped at 15% and 150 days unless Congress extends it |
Section 201, Trade Act of 1974 | Provide temporary relief to industries injured by import surges | An International Trade Commission finding first |
Section 338, Tariff Act of 1930 | Impose duties of up to 50% on countries that discriminate against U.S. commerce | Requires a finding of discrimination; a rarely invoked Depression-era provision |
The Supreme Court upheld broad delegations like these in J.W. Hampton (1928) and Federal Energy Administration v. Algonquin (1976), as long as Congress supplies an "intelligible principle." Justice Kavanaugh's dissent emphasized that statutes like these could support most of the tariffs the Court struck down.
That is precisely why the issue now sits with Congress. Each of these statutes is a policy choice Congress made — and can revisit. The President acts lawfully when he uses them as written. Whether those delegations are too broad is a question only Congress can answer.
What can a new Congress do after the 2026 midterms?
Article I, Section 8 gives Congress the power to "lay and collect Taxes, Duties, Imposts and Excises" and to "regulate Commerce with foreign Nations." The Congress sworn in on January 3, 2027, can decide how much of that power to keep delegating, and on what terms.
Tool | What Congress can do | Practical limit |
Require approval for lasting tariffs | Pass a law (similar to proposals introduced in recent Congresses) providing that new tariffs expire after a set period, such as 60 days, unless Congress approves them | Needs the President's signature or a two-thirds override |
Close the IEEPA question for good | Amend IEEPA to state expressly that it does not authorize tariffs, duties or other taxes | Codifies the Court's holding; future Courts could not revisit it |
Tighten Sections 232, 301 and 338 | Define "national security," cap rates and durations, require ITC economic analysis, and add a congressional vote for broad or lasting actions | Same veto math; must preserve real tools for real threats |
Restore emergency review | Stop using House rules to suspend the National Emergencies Act's fast-track votes, and require emergencies to lapse unless Congress affirms them | A rules change needs only a House majority; a statute needs presentment |
Oversight and transparency | Hold hearings and require public reporting on tariff revenue, costs to households, refund progress and the legal basis for each action | Executive cooperation can be slow |
Protect taxpayers | Direct how refunds of unlawfully collected tariffs are processed and reported, and fund the systems to pay them promptly | Appropriations must pass both chambers |
Debate tariffs on the merits | Enact the tariffs Congress actually supports, by law, with recorded votes | Requires Congress to take ownership of hard choices |
The limits a new Congress must respect
The veto. Any binding change to delegated tariff power needs the President's signature or two-thirds of each chamber. Durable reform usually comes through bipartisan, must-pass legislation.
Foreign-affairs realities. Trade tools sometimes need speed and confidentiality. Smart reform keeps fast, targeted responses to genuine threats while requiring Congress to sign off on broad, long-term taxes.
Consistency. Whatever rule Congress writes will bind the next President of either party. The test for every member: would I support this limit if the other party held the White House?
Why the 2026 election matters for this question
In 2025, the House majority repeatedly voted to set aside its own fast-track review of the tariff emergencies. In 2026, a small bipartisan group showed that independent votes can change the outcome. The 120th Congress will decide whether that independence becomes the rule or the exception. Voters can ask every candidate, regardless of party: Will you vote to require congressional approval before broad tariffs — which are taxes on Americans — stay in place?
Why should every American care?
Because a tariff is a tax, and the Constitution guarantees that Americans are taxed only by representatives they can vote out.
No taxation without representation. Among the grievances in the Declaration of Independence was that the King imposed "Taxes on us without our Consent." The Framers answered by placing the taxing power in Congress, the branch that answers to voters every two years.
You pay at the checkout. At roughly $1,100 per household per year, tariffs are among the largest federal tax changes in a generation, and the rates were set by executive action rather than by a recorded vote of Congress.
Small businesses pay first. Importers pay the duty when goods arrive, before a single sale. Family businesses, farmers who face retaliation, and manufacturers who buy imported parts feel it fastest.
The rules outlast any President. A taxing power left with one President stays with the next, of either party, for whatever priorities that President holds.
Separation of powers protects every other right. The Constitution splits power so that no single official can both make the law and enforce it. When Congress gives away a core power and cannot practically take it back, that protection weakens for everyone.
This is patriot over partisan. Supporting or opposing a particular tariff is a policy choice. Insisting that the people's representatives make that choice in the open is a constitutional duty.
Frequently asked questions
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. A President may impose tariffs only where Congress has delegated that authority by statute.
What did the Supreme Court decide about the IEEPA tariffs?
On February 20, 2026, in Learning Resources, Inc. v. Trump and Trump v. V.O.S. Selections, Inc., the Court held 6–3 that the International Emergency Economic Powers Act does not authorize the President to impose tariffs. Chief Justice Roberts wrote the majority opinion; Justices Kavanaugh, Thomas and Alito dissented.
Are tariffs still in effect after the ruling?
Yes. Tariffs remain under other statutes, including Section 232 (national security), Section 301 (unfair trade practices) and Section 338 (discrimination against U.S. commerce). A temporary Section 122 surcharge expired on July 24, 2026.
Will importers get refunds of the IEEPA tariffs?
Customs opened a refund system on April 20, 2026 for an estimated $166 billion owed to importers, and had approved about $35.5 billion with interest by May 11, 2026. Consumers who paid higher prices generally have no direct refund claim against the government.
Can Congress take back its tariff power?
Yes, by passing a law that narrows or conditions the delegations in the trade statutes, or that requires congressional approval for broad or lasting tariffs. Like any law, it needs the President's signature or a two-thirds override of a veto.
When does the new Congress take office?
The midterm elections are on November 3, 2026. Under the Twentieth Amendment, the new Congress convenes at noon on January 3, 2027.
Did Biazzo Law file a brief in the tariff case?
Yes. Corey J. Biazzo, Esq. filed an amicus curiae brief on October 8, 2025 supporting the businesses challenging the tariffs. The official dockets are No. 24-1287 and No. 25-250.
The Biazzo Law Government Oversight Program
This analysis is part of the Biazzo Law Government Oversight Program, a nonpartisan public-service initiative that applies the same constitutional standards to every President, party, agency and official. The Program:
Files amicus curiae briefs in significant constitutional cases at the U.S. Supreme Court, including the IEEPA tariff cases and Trump v. Illinois
Submits and litigates Freedom of Information Act requests on executive authority and emergency powers
Publishes plain-language explanations of constitutional rights and pending cases
Supports only lawful, peaceful civic engagement
The Program examines the current administration because it presently exercises federal executive power. It will hold future administrations of either party to the same standards.
Follow our work: Government Oversight Program and amicus tracker · Media inquiries or constitutional litigation: (703) 297-5777 · corey@biazzolaw.com
Disclaimer: This post is for general informational and educational purposes only and is not legal, tax or trade-compliance advice. It does not create an attorney-client relationship. Biazzo Law's participation in U.S. Supreme Court matters was through amicus curiae briefing and does not imply party representation. Courts are not required to adopt any amicus argument, and past results do not guarantee future outcomes. Biazzo Law does not support or oppose any political party or candidate.
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