Doron Narotzki,* Tariffs Are Taxes, Congress Must Levy Them, 80 U. Mia. L. Rev. Caveat 29 (2026).
Tariffs are taxes. When presidents use emergency tools to set broad, durable tariff programs, taxing choices drift from the elected legislature to the executive. This Article proposes a reset that preserves agility without surrendering Article I. The framework has two tracks. First, Congress legislates any tariff that operates as general revenue or nationwide pricing, with Origination Clause compliance, budget scoring, and public distributional analysis so voters can see who pays. Second, the executive retains a narrow, time-limited track for defined trade harms, subject to written findings, public notice, quantitative caps, automatic sunsets, and refund mechanics. The approach accepts that taxes can regulate, but only within clear statutory boundaries that Congress sets. It aligns with early practice, improves transparency for households and firms, and replaces rolling proclamations with predictable law. The Supreme Court’s 2026 decision holding that the International Emergency Economic Powers Act (IEEPA) does not authorize the President to impose tariffs stresses the stakes. Yet the rapid pivot to tariffs under alternative statutory authorities demonstrates that the deeper issue is structural. A candid statute for taxation and a cabined delegation for emergencies restore accountability and keep needed tools.
Introduction
The true distinction . . . is, between the delegation of power to make the law, which necessarily involves a discretion as to what it shall be, and conferring an authority or discretion as to its execution, to be exercised under and in pursuance of the law. The first cannot be done; to the latter no valid objection can be made.[1]
For years, the American people have complained about outsourcing that moved American jobs overseas, which Congress often allowed or even incentivized by passing certain laws.[2] Yet little has been said about a more troubling form of outsourcing: Congress has been outsourcing its own job of making tax laws to the executive branch.[3] This Article contends that the central problem in contemporary tariff policy is not (only) the particular statutory authority the administration invokes, but the gradual migration of taxing choices from the legislature to the executive.
Article I vests the federal taxing power in Congress.[4] The Constitution gives Congress authority “[t]o lay and collect Taxes, Duties, Imposts and Excises,” subject to uniformity limits,[5] and it requires that revenue bills originate in the House of Representatives.[6] These provisions are not formalities. They locate fiscal choice in the elected legislature and embed accountability through bicameralism and presentment.[7] Within that grant, duties and imposts are taxes at the border.[8] And make no mistake, both law and public finance treat tariffs as taxes.[9] Congress may choose tariffs as a revenue instrument, and the United States has done so for a long period of time,[10] but when tariff programs are imposed by executive action rather than statute, the locus of the taxing power drifts from Congress to the President. Courts have long permitted Congress to delegate some discretion to the executive in customs matters, provided Congress supplies an intelligible principle to guide execution.[11] Marshall Field & Co. v. Clark[12] and J.W. Hampton, Jr., & Co. v. United States[13] upheld tariff-related delegations on that ground, but neither case relocated the taxing power from Congress to the President. They rest on the premise that Congress made the policy choice and the executive filled in the details within defined limits.[14] Put differently, execution may be delegated; the foundational allocation of the tax instrument may not.[15]
The real issue is therefore larger than the International Emergency Economic Powers Act (IEEPA)[16] and the President’s use of this law to impose broad tariffs[17]—a practice the Supreme Court rejected in February 2026.[18] Since 1934, presidential proclamation has been almost the routine method for tariff adjustments, a practice with practical advantages but constitutional costs.[19] The pattern marks a shift in who decides, who bears, and who answers for the burdens of taxation. Hence, more is at stake than a slow drift of rate control from Congress to the executive. Over several decades, delegated tariff regimes have shifted the practical allocation of some of the tax burdens to the President, while investigations and review processes often have narrowed into compliance exercises.[20] At the same time, Congress, with the support of the executive branch, repeatedly preferred income-tax reductions and targeted credits.[21] The cumulative result is that substantial, recurring revenue can be raised through tariffs without the incidence analysis, budget scoring, and electoral accountability that accompany tax legislation.[22] In this setting, the President taxes through tariffs with fewer guardrails than ordinary revenue measures, and the people’s representatives are less visible at the point of fiscal choice.[23] The remedy, however, is not to abolish executive trade tools, but to return broad revenue choices to Congress and to condition any temporary executive measures on transparent findings, public distributional analysis, strict limits, and affirmative legislative renewal.
The Constitution’s procedures are not ornamental. Bicameralism, presentment, and the Origination Clause exist to preserve a balance of power and to ensure that taxes are chosen by the people’s representatives in a transparent forum.[24] That design reflects the framers’ settlement about how a self-governing nation should authorize revenue,[25] rather than a populist slogan or a simplification of democratic theory. Potentially, when broad tariffs function as general taxes outside an Article I enactment, distributional consequences are hidden, fiscal planning is unstable, and accountability for tax choices is blurred. This Article defends a simple proposition: tariffs may serve a legitimate revenue role,[26] but only when Congress legislates them and takes responsibility for their incidence.[27] Constitutional accountability for taxation is not merely compliance with constitutional procedure,[28] but also a clear expression of the core commitment to self-government by the people and for the people.[29] Accordingly, this Article proposes targeted guardrails for any short-term executive measures to ensure transparency, genuine temporariness, and timely legislative reauthorization, including clear findings, public incidence analysis, and affirmative renewal votes.
I. The Deeper Problem: Institutional Accountability, Not Doctrinal Labels
The principal difficulty with contemporary tariff policy is not the specific statutory hook a President selects, nor which doctrinal tool courts might use to evaluate it. The difficulty is institutional. Article I vests the taxing power in Congress.[30] Over time, Congress has tolerated a growing practice in which some tariff programs that function as semi-broad (and now broad) taxes are initiated and sustained by the executive branch.[31] Debates over IEEPA, the nondelegation doctrine, or the major questions canon matter, but they are only contests at the edge of the field. The fundamental question is who chooses tax instruments, on what record, and under what form of public accountability.
The correct allocation of authority is that Congress decides whether to collect meaningful revenue at the border, states the objective, and accepts responsibility for the incidence of that choice. Courts then review specific uses of delegated authority against that legislative decision. In the prevailing allocation, Congress frequently legislates income tax reductions and targeted preferences while large revenue is raised through tariffs adopted by executive action.[32] The result is a mismatch. The incidence analysis and budget scoring that accompany ordinary tax legislation are absent or attenuated in the tariff context, and the choice that citizens should be able to attribute to their representatives is dispersed across agencies and proclamations.
Doctrinal frameworks such as the nondelegation doctrine or the major questions doctrine help identify limits, but they do not resolve the core defect. The nondelegation doctrine permits execution within an intelligible principle only because Congress must first make the policy choice.[33] The major questions doctrine preserves legislative responsibility for decisions of vast economic and political significance only if Congress actually legislates those decisions.[34] Neither doctrine can manufacture the accountability that Article I provides when Congress enacts a tariff as a tax.
Hence, the dispute over IEEPA was important, but it was only a symptom of a broader failure of legislative ownership or, if one prefers a more dramatic lens through which to view this issue, a constitutional breakdown. Therefore, the cure for this problem is legislative, not judicial. Congress must reclaim tariff policy when it functions as taxation and must set guardrails for any temporary executive measure. The next section of this Article explains how a concrete statutory framework can restore congressional accountability while preserving necessary agility in trade policy and address this issue effectively.
On November 5, 2025, the Supreme Court heard consolidated argument in Learning Resources, Inc. v. Trump and Trump v. V.O.S. Selections, Inc.[35] Multiple justices pressed the government on whether labeling the measures “regulatory” can avoid the basic point that tariffs operate as taxes that the Constitution lodges in Congress.[36] Chief Justice Roberts emphasized that IEEPA “doesn’t use the word ‘tariffs.’”[37] While the government replied that “regulate importation” historically encompassed tariff authority,[38] Justice Kagan answered that tariffs are “quintessential taxing powers” delegated to Congress and questioned any special foreign-affairs carveout in this domain.[39] The challengers emphasized that IEEPA had never before been used to justify tariffs, with Justice Sotomayor noting that no president had done so under IEEPA and pressing the government on the difference between statutes that explicitly authorize taxes and those that do not.[40] Justice Barrett and Justice Jackson likewise framed the question as one of statutory fit, contrasting trade statutes that speak in tariff terms with IEEPA’s more general vocabulary.[41] Still, perhaps Justice Gorsuch’s comments during the oral arguments about relocating Congress’ tariff power to the executive through emergency delegations were the most blunt and forward when he took a step back from the issue in front of the Court and asked the following:
[W]hat would prohibit Congress from just abdicating all responsibility to regulate foreign commerce, for that matter, declare war, to the President?
. . . .
. . . General, I’m not asking about the statute. I’m asking for your theory of the Constitution and why the major questions and nondelegation, what bite it would have in that case.[42]
That is where the real problem lies. Congress has to reclaim its authority pursuant to the Constitution.
On February 20, 2026, the Court held that IEEPA does not authorize the President to impose tariffs, affirming the judgment of the Court of International Trade and the Federal Circuit.[43] Although the Court ultimately concluded that IEEPA does not allow the President such broad tariff-making of the kind used in 2025,[44] a determined administration can pivot to other delegations—as demonstrated by the President’s immediate issuance of tariffs under Section 122 of the Trade Act of 1974 following the Court’s ruling.[45] Section 122 authorizes a temporary, generally non-discriminatory import surcharge of up to fifteen percent for up to 150 days absent congressional extension.[46] The executive can seek alternative paths under Section 201 after an International Trade Commission injury finding,[47] invoke national security under Section 232,[48] or proceed under Section 301 for unfair trade practices.[49] It can also use existing rules within the Tariff Act of 1930, as some members of the current administration have already indicated they plan to do.[50] A narrow focus on IEEPA therefore invites a shell game across these authorities. The real question is not which statutory hook the executive selects, but who, in substance, chooses a broad revenue-raising tariff, on what terms, and whether that choice is made through Article I’s processes.
Hence, the IEEPA question is only a minor incident within a larger constitutional injury. The recurring problem arises whenever executive trade instruments are used to implement what functions as tax policy while Congress, for short-horizon and populist political reasons, pursues income-tax reductions and targeted credits.[51] The remedy is legislative re-ownership of any broad revenue tariff and explicit guardrails on temporary executive uses. Congress should require public findings tied to a defined statutory purpose, advance publication of distributional and incidence analyses, Congressional Budget Office scoring, short sunsets with affirmative renewal votes in both chambers, and an unwind or refund mechanism if renewal fails. Congress should also bar coupling unilateral executive tariffs with contemporaneous statutory tax cuts unless both are enacted together in a single budget package. Until choices like these are made by statute, the effective power to tax through tariffs rests with the presidency, and it will be used.
Congress should enact a statutory Tariff Stabilization Rate set at ten percent. The statute should state that the objective is revenue rather than emergency management. It should direct the Congressional Budget Office, in coordination with the Joint Committee on Taxation, to provide a revenue score at enactment and at regular intervals. Alongside budget scoring, Congress should require public distributional and incidence analyses so the public can see who bears the burden across income groups, regions, and sectors. These findings should be released and made publicly available at the time of enactment and on a fixed schedule over the life of the program. A uniform baseline rate adopted by statute would bring tariff revenue back within the ordinary Article I process, while also providing stability to the international trading framework.
For all other tariff actions, governance should proceed on two tracks that reflect the different purposes of trade policy.[52] First, the administrative track would cover narrow, temporary interventions that respond to specific or potential trade harm or injury. In turn, federal agencies would issue clear written findings directly tied to the authorizing statute in a formal report, provide public notice and an opportunity for timely comments, and explain the reasoning that supports the specific measure. Each action on this track would include an automatic sunset so that temporary responses do not become permanent by congressional neglect or hindsight. Second, the legislative track would apply to programs that function as broad taxation or macroeconomic policy. Any tariff initiative that is expected to raise, for example, at least one-tenth of one percent of gross domestic product in a fiscal year, or that is intended to last longer than twenty-four months, would require expedited congressional approval. To follow the Origination Clause,[53] the approval vehicle should originate in the House of Representatives.
Emergency situations cannot be a substitute for legislative consent. Any emergency tariff adopted on the administrative track should lapse on a fixed timetable unless Congress votes to continue it. The continuation vote would rest on a record that includes updated findings, a current budget score, and a public analysis of who pays and how much. This proposed procedural framework is crucial for maintaining the integrity of the constitutional and fiscal framework. Furthermore, this approach preserves agility for genuine emergencies while insisting that sustained taxation requires an affirmative legislative choice.
Budget integrity must be part of the design. The statute should bar pairing unilateral executive tariffs with contemporaneous statutory tax cuts unless both are enacted in a single budget bill. Preventing such pairing closes a familiar pathway in which off-budget tariff receipts subsidize tax reductions without a full accounting. If Congress wants both a tariff and a tax cut, it should own both in the same package. Accountability is the key. It requires that the same elected body that imposes the tariff also takes public responsibility for any offsetting tax relief, on the record and in one vote, so that voters can see the tradeoffs, attribute them to Congress, and judge them at the next election.
The framework should also include unwind and refund mechanics. If Congress declines to continue an emergency tariff, agencies should have clear authority to reduce rates prospectively and to provide refunds or credits in defined circumstances. This prevents temporary experiments from maturing into permanent taxes through inertia or administrative delay. It also protects reliance interests and signals that emergency measures are truly contingent on ongoing legislative approval.
Finally, transparency must be citizen-facing, not only technical. The executive branch and the Congressional Budget Office should publish tables that translate customs-duty collections into household-level burdens, with simple illustrations that connect tariff rates to prices paid by consumers and to costs borne by corporations. A recent survey found that a significant percentage of Americans do not fully understand the impact of tariffs or how they work.[54] Regular publication of this information would allow voters and legislators to evaluate who benefits and who pays, and to adjust policy accordingly. The result is a durable balance: the executive retains the capacity to act quickly when trade conditions warrant action, while Congress reclaims ownership of taxation and the public regains visibility into fiscal choices.
Tariffs are a form of taxation,[55] and the Constitution assigns taxing choices to Congress through Article I’s procedures of bicameralism, presentment, and origination.[56] That allocation is a design choice about accountability, visibility, and consent. It ensures that durable revenue decisions appear in statutes that members must defend to their constituents. None of this denies a role for the President. Rather, it clarifies which role belongs to each branch of the federal government.
Congress should legislate tariff policy whenever the measure functions as a continuing source of revenue or a nationwide pricing instrument. That can include a statutory schedule that sets baseline rates, sectoral adjustments, and a process for periodic revision on the record. Budget scoring, distributional analysis, and stated objectives should accompany those choices so that voters can see both the incidence and the tradeoffs. When tariffs are used as broad fiscal instruments, the decision must run through Article I.
The President needs tools to respond when trade shocks or security concerns arise. History and practice allow Congress to authorize executive action to carry out the policy Congress has set, not to replace it.[57] Delegations should therefore be precise and bounded. They should require public findings tied to an identified statutory standard, short time limits, quantitative caps on coverage or value, and automatic expiration absent affirmative renewal by Congress. Refund, rebate, or escrow mechanics should protect against the risk that temporary measures become de facto permanent taxes through inertia.
Using taxes for regulatory purposes has a long pedigree in American law. As Professor Avi-Yonah has argued, the tax power can legitimately serve regulatory ends when tethered to statutory policy and administered with transparency.[58] Yet, I argue that the presence of regulatory aims does not remove any of the requirements imposed under Article I. It strengthens the case for clarity about who decides, on what record, and with what limits. A targeted, time-limited tariff used to remedy a documented harm can sit within a carefully drawn delegation. An across-the-board revenue program belongs in statute.
This settlement accords with the framers’ arrangement and today’s economic realities.[59] The framers placed revenue authority in the legislature to protect liberty through consent and accountability.[60] Modern supply chains and geopolitical risk require speed in narrow windows. We can meet both demands. Congress should reassert ownership of tariff policy where it operates as taxation, while preserving an executive channel for exceptional and temporary problems. Courts should review executive actions for conformity with the statutory record that Congress creates, not to supply policy judgments that the political branches have avoided.
The proposal offered in this short piece is balanced. It affirms Congress’ unquestioned authority to levy tariffs and to design long-run tariff programs.[61] It also preserves presidential agility, but only within guardrails that prevent the outsourcing of legislative responsibility.[62] It acknowledges that tariffs and taxes can regulate as they raise revenue, while insisting that durable fiscal programs must be debated, scored, and enacted in the open.[63] It respects the Origination Clause by routing sustained revenue measures through the House.[64] It restores clarity for households and corporations by moving general tariff policy out of ad hoc proclamations and back into statute.[65]
Conclusion
Overall, if adopted, this approach would deliver four concrete gains. First, it would make the fiscal effects of tariff programs visible in the budget, alongside any offsetting tax relief, so the full package can be judged as a whole. Second, it would reduce uncertainty by replacing rolling executive announcements with predictable statutory schedules that are periodically revisited. Third, it would preserve rapid response capacity for true emergencies while preventing those responses from hardening into permanent taxes without a vote. Fourth, it would realign incentives in both branches by rewarding forthright legislative choices and constraining executive drift.
The core claim is institutional. Doctrinal debates about nondelegation and major questions will continue, but they cannot substitute for legislative ownership of taxation. Congress must reclaim broad tariff policy when it acts as a tax. The President should retain only those authorities that implement Congress’ policy within narrow, time-bound limits, with transparent findings and automatic sunsets. That settlement honors the constitutional design, secures revenue with candor, preserves legitimate regulatory aims, and equips the nation with the flexibility it needs when circumstances change.
* Doron Narotzki is an Associate Professor of Tax at the University of Akron College of Business, Daverio School of Accountancy, Frank & Karen Steininger Fellow and the Director of the Master of Taxation Program.
[1] Cincinnati, Wilmington & Zanesville R.R. Co. v. Clinton Cnty. Comm’rs, 1 Ohio St. 77, 88–89 (1852).
[2] See, e.g., U.S. Gov’t Accountability Off., GAO-06-5, Offshoring of Services: An Overview of the Issues 1–2 (2005) (“Although ‘offshoring’ has existed for decades in the manufacturing sector, recently concerns have been raised about the emergence of services offshoring. Offshoring generally refers to the practice, by either U.S. companies or government entities, of replacing goods or services previously produced domestically with goods and services produced abroad.”).
[3] See Doron Narotzki, Hidden Taxation and the Rise of the Shadow Fiscal State, 7 Ariz. St. Corp. & Bus. L.J. 59, 77 (2026).
[4] U.S. Const. art. I, § 8, cl. 1.
[7] See id.; Immigr. & Naturalization Serv. v. Chadha, 462 U.S. 919, 956 (1983) (“These carefully defined exceptions from presentment and bicameralism underscore the difference between the legislative functions of Congress and other unilateral but important and binding one-House acts provided for in the Constitution.”).
[8] See Michelin Tire Corp. v. Wages, 423 U.S. 276, 287 (1976).
[9] See U.S. Const. art. I, § 8, cl. 1; J.W. Hampton, Jr., & Co. v. United States, 276 U.S. 394, 407, 409–11 (1928) (citing Cincinnati, Wilmington & Zanesville R.R. Co. v. Clinton Cnty. Comm’rs, 1 Ohio St. 77, 88 (1852)) (treating customs “duties” as within Congress’ taxing power and sustaining limited delegation to adjust rates); Marshall Field & Co.v. Clark, 143 U.S. 649, 692–94 (1892) (upholding tariff-related delegation as execution of Congress’ taxing choice); United States v. U.S. Shoe Corp., 523 U.S. 360, 361–65 (1998) (distinguishing taxes from fees and analyzing a harbor charge as a tax for constitutional purposes); Int’l Monetary Fund, Government Finance Statistics Manual 2014 ¶¶ 5.83–84 (2014) (classifying “[c]ustoms and other import duties” and other taxes on international trade as “taxes”).
[10] Reuven S. Avi-Yonah, Doron Narotzki & Tamir Shanan, From Relic to Relevance, The Resurgence of Tariffs, 77 U.C. L.J. (forthcoming 2026).
[11] Narotzki, supra note 3, at 77.
[12] Marshall Field, 143 U.S. at 696–97.
[13] J.W. Hampton, Jr., 276 U.S. at 413.
[14] See Marshall Field, 143 U.S. at 693–94; J.W. Hampton, Jr., 276 U.S. at 410–11.
[15] See Marshall Field, 143 U.S. at 694; J.W. Hampton, Jr., 276 U.S. at 409, 411; cf. U.S. Const. art. I, § 8, cl. 1 (vesting the taxing power in Congress); U.S. Const. art. I, § 7, cl. 1 (Origination Clause).
[16] See generally International Emergency Economic Powers Act,50 U.S.C. §§ 1701–1708 (authorizing the President, after declaring a national emergency, to regulate certain economic transactions involving foreign interests).
[17] Amna Nawaz & Ali Schmitz, Supreme Court Justices Question Trump’s Authority to Impose Sweeping Tariffs, PBS News (Nov. 5, 2025, at 18:40 ET), https://www.pbs.org/newshour/show/supreme-court-justices-question-trumps-authority-to-impose-sweeping-tariffs [https://perma.cc/HSV8-4RLF]; Doug Palmer, Josh Gerstein & Daniel Desrochers, Justices Appear Skeptical of Trump’s Broad Tariffs, Politico (Nov. 5, 2025, at 14:41 ET), https://www.politico.com/news/2025/11/05/supreme-court-tariffs-donald-trump-oral-arguments-00637544 [https://perma.cc/H8G5-KHNQ].
[18] See Learning Res., Inc. v. Trump, No. 24–1287, slip op. at 20 (U.S. Feb. 20, 2026).
[19] Narotzki, supra note 3, at 72.
[25] Narotzki, supra note 3, at 91.
[26] Avi-Yonah, Narotzki & Shanan, supra note 10.
[27] Narotzki, supra note 3, at 118.
[28] By constitutional accountability, I mean that revenue choices must be made by the people’s representatives through the mechanisms the Constitution specifies: the House’s origination of revenue bills, bicameral passage, and presentment to the President. See U.S. Const. art. I, § 8, cl. 1; id. art. I, § 7, cl. 1; id. art. I, § 7, cl. 2–3. These procedures are structural safeguards, not just formalities. See Immigr. & Naturalization Serv. v. Chadha, 462 U.S. 919, 945–59 (1983) (explaining bicameralism and presentment as “integral” to the lawmaking process); Clinton v. City of New York, 524 U.S. 417, 438–39 (1998) (invalidating the line item veto for bypassing Article I procedures); United States v. Munoz-Flores, 495 U.S. 385, 395–401 (1990) (treating the Origination Clause as a justiciable constraint on revenue legislation). The breadth of Congress’ taxing power underscores that accountability. See Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S. 519, 563–71 (2012) (upholding an exaction as a tax enacted by Congress); J.W. Hampton, Jr., & Co. v. United States, 276 U.S. 394, 409–11 (1928) (sustaining limited customs delegations as execution of a congressional policy); Marshall Field & Co.v. Clark, 143 U.S. 649, 692–94 (1892); The Federalist No. 58 (James Madison) (discussing the House’s control over supply); The Federalist Nos. 30–36 (Alexander Hamilton) (linking taxing authority to legislative responsibility); Doron Narotzki, Tamir Shanan & Julianne Jones, Taxation and the Founding Fathers, 186 Tax Notes Fed. 1413, 1427–36 (2025).
[29] Narotzki, Shanan & Jones, supra note 28, at 1427–36.
[30] U.S. Const. art. I, § 8, cl. 1.
[31] See, e.g., Reuven S. Avi-Yonah & Doron Narotzki, The Tariffs Are Coming! The Tariffs Are Coming!, 116 Tax Notes Int’l 1577, 1577–78 (2024).
[32] See id. at 1578, 1580–84.
[33] See David B. Froomkin, The Nondelegation Doctrine and the Structure of the Executive, 41 Yale J. on Regul. 60, 66 (2024); Note, Nondelegation’s Unprincipled Foreign Affairs Exceptionalism, 134 Harv. L. Rev. 1132, 1136 (2021); Gundy v. United States, 588 U.S. 128, 132 (2019) (“The nondelegation doctrine bars Congress from transferring its legislative power to another branch of Government.”); Paul v. United States, 589 U.S. 1087, 1087 (2019).
[34] Daniel E. Walters, The Major Questions Doctrine at the Boundaries of Interpretive Law, 109 Iowa L. Rev. 465, 467–68, 482 (2024).
[35] See Transcript of Oral Argument at 4, Learning Res., Inc. v. Trump, 145 S. Ct. 2811 (2025) (Nos. 24–1287, 25–250).
[41] Transcript of Oral Argument at 25–28, 40–47, Learning Res., Inc. v. Trump, 145 S. Ct. 2811 (2025) (Nos. 24-1287, 25-250).
[43] Learning Res., Inc. v. Trump, No. 24–1287, slip op. at 20 (U.S. Feb. 20, 2026).
[45] See Fact Sheet: President Donald J. Trump Imposes a Temporary Import Duty to Address Fundamental International Payment Problems, The White House (Feb. 20, 2026), https://www.whitehouse.gov/fact-sheets/2026/02/fact-sheet-president-donald-j-trump-imposes-a-temporary-import-duty-to-address-fundamental-international-payment-problems/ [https://perma.cc/YC3H-AP87]; Dor-on Narotzki, Learning Resources and the Limits of Emergency Tariffs, TaxProf Blog (Mar. 2, 2026), https://taxprofblog.aals.org/2026/03/02/taxprof-op-ed-narotzki-on-learning-resources-and-the-limits-of-emergency-tariffs/ [https://perma.cc/5JKY-MEUF].
[46] Trade Act of 1974, Pub. L. No. 93–618, § 122, 88 Stat. 1978, 1993 (1975).
[47] See generally Understanding Section 201 Safeguard Investigations, U.S. Int’l Trade Comm’n, https://www.usitc.gov/understanding_section_201_safeguard_investigations.htm [https://perma.cc/4M25-JHLY] (last visited Feb. 16, 2026) (explaining that after an affirmative injury determination, the President has authority to determine whether import relief is warranted and to decide the form such relief will take, including tariffs, quotas, or other safeguard measures).
[48] See Paul Wiseman, Trump Has Other Tariff Options if the Supreme Court Strikes Down His Worldwide Import Taxes, AP News (Nov. 6, 2025, at 05:27 ET), https://apnews.com/article/tariffs-imports-trump-supreme-court-de303262a6b215885407cfecb6a80118 [https://perma.cc/LXE7-YN5H] (noting that the president has invoked Section 232 of the Trade Expansion Act to impose tariffs he deems necessary for national security, and that the Commerce Department itself conducts the required investigations, giving the executive significant control over the process).
[49] See id. (noting that Section 301 of the Trade Act of 1974 allows the president to impose tariffs against foreign countries for “unfair trade practices,” and that Trump previously used Section 301 authority against China, providing a fallback mechanism if other tariff powers are curtailed).
[51] See, e.g., Doron Narotzki & Tamir Shanan, Populism and Taxation, 33 S. Cal. Interdisc. L.J. 365, 366–68 (2023) (a broader discussion of populism and taxation in American politics).
[52] Narotzki, supra note 3, at 119.
[53] U.S. Const. art. I, § 7, cl. 1.
[54] Florian Zandt, Only 45 Percent of Americans Know What a Tariff Is, Statista (Jan. 30, 2025), https://www.statista.com/chart/33863/share-of-respondents-who-think-the-following-definition-of-tariffs-is-accurate [https://perma.cc/3CHU-XVYU].
[55] To quote Justice Sotomayor: “It’s a congressional power, not a presidential power, to tax. And you want to say tariffs are not taxes, but that’s exactly what they are. They’re generating money from American citizens, revenue.” Transcript of Oral Argument at 12, Learning Res., Inc. v. Trump, 145 S. Ct. 2811 (2025) (Nos. 24–1287, 25–250).
[56] See U.S. Const. art. I, § 7, cl. 1; id. art. I, § 1.
[57] See J.W. Hampton, Jr., & Co. v. United States, 276 U.S. 394, 409 (1928) (“If Congress shall lay down by legislative act an intelligible principle to which the person or body authorized to fix such rates is directed to conform, such legislative action is not a forbidden delegation of legislative power.”).
[58] Reuven Avi-Yonah, Regulatory Taxation and the Tariffs (Nov. 7, 2025) (unpublished manuscript) (on file with author); see Joseph T. Sneed, The Criteria of Federal Income Tax Policy, 17 Stan. L. Rev. 567, 613 (1965); Reuven S. Avi-Yonah, The Three Goals of Taxation, 60 Tax L. Rev. 1, 3–4 (2006); see generally Pasquale Pistone et al., Fundamentals of Taxation: An Introduction to Tax Policy, Tax Law and Tax Administration (2019) (explaining that taxes may be used to advance public policy goals, including influencing economic behavior, when imposed through lawful governmental authority).
[59] See The Federalist No. 30 (James Madison).
