Scholars argue that Congress should act to halt expanded presidential trade power.
In recent decades, the U.S. Congress has watched its constitutional authority over foreign commerce dissolve, according to two legal experts. In a recent article, they claim that, under the modern banner of “economic security,” presidents now wield tariffs, sanctions, and trade agreements as weapons.
These scholars—Kathleen Claussen of Georgetown University Law Center and Timothy Meyer of Duke University School of Law—argue that the open-ended justification of economic security allows presidents to recast ordinary trade regulation as matters of foreign affairs. Increased use of the economic security rationale has expanded executive authority, sidelined Congress, and left courts deferential to the executive, they explain.
According to Claussen and Meyer, economic security is not a single statutory concept—it is a modern framing of national security that presidents invoke to justify tariffs, sanctions, and trade restrictions. Once a policy is placed under this label, courts tend to extend the same deference they give to national security decisions. Claussen and Meyer explain that this deference “constitutionalizes” presidential control over trade, allowing for executive actions that combine delegated authority with inherent constitutional claims.
Congress exercises its power to regulate commerce under the U.S. Constitution. But Claussen and Meyer argue that Congress has delegated increasing authority to the President, beginning with authorizing presidents to negotiate tariff reductions in 1934. The Trade Expansion Act of 1962 allowed the executive to restrict imports on national security grounds, while the Trade Act of 1974 expanded presidential discretion to retaliate against unfair trade practices. Claussen and Meyer argue that this legislation, along with the establishment of the Office of the United States Trade Representative, the passage of the International Emergency Economic Powers Act, and limited judicial review, has entrenched presidential control over foreign commerce at the expense of congressional authority.
Claussen and Meyer explain that trade legislation has formalized security-based exceptions to rules that have otherwise liberalized international trade, creating two tracks for the exercise of presidential authority—one for liberalizing trade and another for restricting it. For decades, presidents primarily used the liberalizing track to strike trade deals. But Claussen and Meyer note that, in recent years, the restrictive track has gained prominence.
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