My New Lawfare Article on Why “The President Doesn’t Have Unlimited Power to Impose Import Bans”

Today, Lawfare published my new article “The President Doesn’t Have Unlimited Power to Impose Import Bans.” Here is an excerpt:

President Trump recently tried to use Section 338 of the notorious Smoot-Hawley Tariff Act of 1930 to ban several categories of Canadian imports outright, as well as to impose tariffs on others. This led some to fear that Trump has discovered a largely unlimited power for the president to restrict imports.

Courts have thus far constrained Trump’s efforts to impose sweeping tariffs, most notably in the Supreme Court’s decision in Learning Resources, Inc. v. Trump (a case I helped litigate), which struck down Trump’s massive imposition of tariffs under the International Emergency Economic Powers Act of 1977 (IEEPA). But perhaps import bans would be different. Trump himself said after the IEEPA decision that “I can destroy the trade. I’m even allowed to impose a foreign country destroying embargo.”

That claim is badly wrong. Like tariffs, import restrictions are a congressional power under the Constitution, not an executive one. Thus, the president cannot impose import bans without congressional authorization. While some statutes delegate import restriction authority to the president, that power is strictly limited. And, as with tariffs, interpreting these authorities in a way that gives the president a blank check to impose import bans would run afoul of the major questions doctrine and constitutional nondelegation.

It remains to be seen whether Trump or a future president might decide to claim sweeping authority to impose import bans at will. But when and if such an effort materializes, courts should strike it down.

The rest of the article goes into the relevant issues in greater detail, including considering several statutes that might potentially be used in any effort to institute sweeping executive-imposed import bans.