The Libertarian Can the President Declare a Trade ‘Emergency’? On the Supreme Court’s Tariff Case
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Oct 31, 2025 
Richard Epstein, a noted legal scholar and expert on constitutional law, explores the pressing question of whether the president can impose tariffs under emergency powers. He breaks down the nuances of Article I, highlighting the legislative limits on such delegation. Epstein contrasts historical definitions of 'emergency' with routine tariffs and cautions against using tariffs as political tools. He also warns that expanding the unitary executive theory could dangerously broaden presidential authority. The discussion sheds light on the potential impact on trade and separation of powers.
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Tariff Power Lies With Congress
- The Constitution vests tariff and commerce powers in Congress, not the president.
- Text leaves delegation details open, creating separation-of-powers disputes over who sets tariffs.
Hampton Sets Delegation Standard
- Delegations must meet an 'intelligible principle' as in J.W. Hampton (1928).
- Taft upheld some tariff delegations when Congress provided clear guiding objectives and formulas.
Emergency Powers Are Narrow
- Emergency powers historically cover imminent threats to life, liberty, or major financial stability.
- Courts treat emergency authority as narrow, not a broad license for routine economic intervention.