Executive Tariffs and the Taxing Power

• In Event: Legal Perspectives on the Trump Tariffs

Abstract

On April 2, 2025, the Trump Administration announced sweeping new tariffs on imported goods from virtually every U.S. trading partner, at levels not seen in nearly a century. These measures were an inflection point in the Executive Branch’s use of tariffs as a policy tool—both to increase protectionism and generate revenue.

The Trump tariffs stem from the notion that the Executive Branch has broad fiscal powers that were once thought reserved to Congress. Indeed, as a historical matter, tariffs were once understood to be the core element of Congress’s taxing power, until they were largely supplanted by the federal income tax in the twentieth century. At the same time, a series of public laws created the legal framework for the executive tariff and planted the seeds for their dramatic expansion today. Yet that expansion raises legal questions about whether Congress can delegate broad tariff authority to the Executive Branch and historical questions about why practice changed.

This Article examines the new executive tariffs from the perspective of first principles—those governing the distinction between Congress’s taxing powers and executive authority over foreign policy. It examines the historical arc of the tariff power, and explains how and why it shifted from the Legislative to the Executive Branch. It also assesses the defining features of the new executive tariffs, and how they may undermine Congress’s Article I taxing power. The Article ultimately proposes a new settlement in defining the boundaries between the new executive tariffs and Congress’s taxing power.

Authors

• Ari Glogower, Northwestern Pritzker School of Law

• Conor Clarke, Washington University in St. Louis