Congressional Republicans have suggested they might join Democrats in pushing back against President Donald Trump’s vow to use emergency powers to impose a sharp tax increase on Americans when they buy Mexican goods, unless and until the Mexican government does more to stop migrants from reaching and illegally crossing the U.S. border.
Trump’s threat to impose tariffs on Mexican goods would be his latest unorthodox use of standby authorities that Congress has delegated to the presidency for exigent circumstances, a set of unilateral powers he has been invoking with increasing aggression to bypass the legislative branch.
It would be a change if significant numbers of congressional Republicans followed through on their vows to stand up to the president — and for the role of Congress as an equal branch of government — by voting to block his move, instead of acquiescing to it as they have before.
But here is how they could if they so chose and what mechanisms the president could use to prevail.
What are emergency powers?
Congress has enacted laws giving the president the ability to activate enhancements to his normal powers if he declares a national emergency. The idea is to enable the government to respond quickly to a crisis.
The laws generally do not set detailed standards for when a president may declare an emergency. But where previous presidents of both parties exercised self-restraint in how they used such powers — by limiting their use to situations that Congress anticipated and agreed with — Trump has been becoming far more aggressive.
What is Trump planning for Mexico?
Trump has said he will unilaterally impose tariffs on imports of most Mexican goods, from auto parts to food, using one of the laws that creates emergency powers, the International Emergency Economic Powers Act of 1977. If he follows through, Americans will start paying what is essentially a tax of 5% on imports from Mexico starting Monday, and the tariff rate would ramp up monthly, reaching 25% by October.
Economists warn that this will damage the economies of both countries. It will raise prices for U.S. consumers, and Mexico will probably impose retaliatory tariffs on U.S.-produced goods — driving down demand to buy them. Mexico is the United States’ third-largest trading partner; in 2018, the United States imported $371.9 billion in goods and services from Mexico and exported $299.1 billion in goods and services there.
Is this a normal use of that law?
No. The International Emergency Economic Powers Act says that if the president decides that circumstances abroad have created “any unusual and extraordinary threat” to “the national security, foreign policy, or economy of the United States,” he can declare a “national emergency.” This triggers special authority for him to regulate “any transactions in foreign exchange” by Americans.
But the law does not mention tariffs, and no previous president has used it to impose them, according to the Congressional Research Service. The law has been used to impose sanctions on foreign adversaries and wrongdoers — blocking their property and prohibiting transactions with them — for things like terrorism, human rights abuses, malicious hacking, narcotics trafficking and the proliferation of weapons of mass destruction.
What can Congress do about it?
Under the National Emergencies Act of 1976, Congress can legally terminate an “emergency” that a president says exists — and turn off the special powers the president has activated — by enacting a resolution to do so. Senate Republicans apparently threatened to join Democrats in doing just that after a lunch this week in which they were briefed by administration lawyers about the tariffs proposal.
“I will yield to nobody in passion and seriousness and commitment for securing the border,” Sen. Ted Cruz, R-Texas, told reporters afterward. “But there’s no reason for Texas farmers and ranchers and manufacturers and small businesses to pay the price of massive new taxes” — a burden he estimated would be about $30 billion in his state alone.
But Trump predicted Republican lawmakers who are openly angry at his plans would back down, saying it would be “foolish” for them to try to block him. And because he can veto such a resolution, at least two-thirds of the lawmakers in each chamber must be willing to vote to override his veto for such a resolution to prevail, meaning many Republicans would have to take the political risk of publicly breaking ranks with Trump.
What other emergency actions has Trump taken or threatened?
In February, after a standoff with House Democrats over funding for his border wall caused a record-breaking government shutdown, Trump declared that illegal migration and drug smuggling along the southern border had created a “national emergency” there, enabling him to redirect billions of dollars in Pentagon funds, which Congress had appropriated for other purposes, to border barriers.
That move is currently tied up in court. But Congress separately tried to stop it by passing a resolution to terminate his emergency declaration, with about a dozen Republican lawmakers in each chamber joining Democrats to approve it. Trump vetoed the resolution, and with most Republicans still sticking with him, an override effort failed to reach the two-thirds threshold to pass the House.
The Trump administration also declared an emergency last month to permit it to circumvent Congress and sell about $7 billion in arms to Saudi Arabia, the United Arab Emirates and Jordan that had been stopped by lawmakers last year, invoking a provision of the Arms Export Control Act of 1976 for national-security exigencies. A bipartisan group of senators announced this week that they would push a set of resolutions to block that move, but their fate was unclear.
In a related move, the Trump administration has also been weighing invoking an older law, the Insurrection Act of 1807, in order to use federal troops to enforce immigration laws, according to people familiar with the matter. Those deliberations were first reported by The Daily Caller.
Normally, under the Posse Comitatus Act, federal troops cannot be used for domestic policing. But the Insurrection Act makes an exception for “whenever the president considers” that unlawful obstructions have made it “impracticable to enforce the laws of the United States” in the ordinary way. Previous presidents have used that law to send in troops to suppress riots or deal with natural disasters, not to bolster immigration enforcement, but the words of the statute place few limits on when a president can decide to use it.
Why did Congress delegate such broad powers to the president?
Partly by accident. When Congress last overhauled emergency powers laws in the 1970s, it wrote few standards governing what counts as the sort of emergency that a president can declare. Lawmakers wanted the government to have flexibility to rapidly respond to a crisis whose precise contours might not be foreseeable.
But at the time, lawmakers believed that they could keep the presidency from abusing those powers by using so-called legislative vetoes — the ability to overrule any particular use of those powers by enacting a resolution with a simple majority vote.
In 1983, however, the Supreme Court struck down legislative vetoes as unconstitutional. The ruling said that for an action of Congress to have legal effect outside the legislative branch, it had to be submitted to the president for signature or veto like a bill. As a result, lawmakers need the votes of two-thirds of both chambers — enough to override a veto — to overrule a president’s use of emergency power, a much more difficult political feat to achieve.
This change potentially unleashed presidents to use the congressionally delegated emergency powers in ways that contradicted the will of congressional majorities — an opportunity Trump is now taking advantage of.