Would the Court Find Trump’s Tariff Orders Constitutional in the Era of FDR?

The Trump Administration’s executive orders concerning the implementation of heightened tariffs on a global scale, including in respect to allies such as Canada and the United Kingdom, are raising constitutional concerns over the contemporary expansion of  executive power. [1] However, uncertainty regarding the rightful separation of powers amid an energetic executive is not a novel discourse. During the Great Depression, similar questions arose when President Franklin Roosevelt enacted 3,721 executive orders, many of which directly affected domestic commerce, raising concerns over the expansion of the Commerce Clause’s then-unconventional interpretation. [2] The current administration’s actions are far from unprecedented, in lieu of both President Roosevelt and President Trump justifying their extensive executive actions by citing exceptional National Emergencies. In light of this, would the Trump administration’s tariff regime constitutionally survive like judicial scrutiny to that which President Roosevelt faced in the 1930s? In applying case precedent established in Panama Refining Co. v. Ryan, 293 U.S. 388 (1935); A. L. A Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935); and United States v. Curtiss-Wright Export Corporation, 299 U.S. 304 (1936); along with the test established in Youngstown Sheet and Tube Company v. Sawyer, 343 U.S. 579 (1952); the following analysis will explore the validity of statutory backing and the capacity of legislative encroachment in the Trump administration’s tariff policies. 

In Panama Refining Co. v. Ryan (1935), the Hughes Court ruled that President Roosevelt’s Executive Order 6199, which prohibited the transport of excess amounts of petroleum across interstate and foreign commerce, was unconstitutional. [3] The Supreme Court asserted that Congress must provide an “intelligible principle” when formulating standards for a policy, should the executive branch make rules concerning legislative powers, with national emergencies being no exception. Although the order contained the National Industrial Recovery Act (NIRA) policy goals as statutory backing (for example: “eliminate unfair competitive practices,” “rehabilitate industry,” “conserve natural resources,” et cetera), the courts found the list too general and vague to substantiate intelligible legislative backing that would limit executive discretion. In the case of the Trump Administration, existing tariff orders are more legislatively robust, with each citing either the International Economic Emergencies Powers Act (IEEPA), The National Emergencies Act (NEA), or in some cases the Trade Act of 1964. Unlike the policy aims outlined in NIRA, these statutes define Presidential powers and procedural rules to limit executive power while also containing mechanisms for congressional oversight. [4] For instance, the NEA requires the President to “...report on expenditures incurred during the emergency every six months,” with a national emergency terminating if the President fails to  publish a renewal notice in the Federal Register within a year of reporting. Therefore, the presence of more specialized and diverse legislation establishes a stronger intelligible principle, giving the current tariff orders an advantage in a depression-era judicial review.

In A. L. A. Schecter Poultry Corporation v. United States (1935), the Hughes Court ruled that the President distributing codes of conduct among business groups to regulate certain industries was unconstitutional because it violated the non-delegation doctrine. [5] Chief Justice Hughes, in the majority opinion, stated that,” Congress is not permitted… to abdicate or to transfer to others the essential legislative functions with which it is vested.” Like in the Panama ruling, the Executive’s actions were determined to lack guidelines and restrictions, leaving the President's discretion “virtually unfettered.” This ruling further expanded the Panama decision as it also considered the President’s capacity for legislative encroachment, more specifically concerning the powers outlined in Article 1, Section 8 of the Constitution. [6] Not only did the order in Schecter fail the intelligible standard, but the economic codes it contained were vague enough to justify the expansion of  executive action on a virtually unlimited scale. This issue is raised particularly in the Trump administration’s Executive Order 14245, which imposes tariffs on countries importing Venezuelan oil. EO 14245 fails to establish a measurable threshold of imports, meaning that the same tariff rate would be triggered regardless of how small the importation volume. [7] It also fails to establish procedural limits, deferring determination of direct and indirect oil import standards to the Secretary of State, Secretary of Commerce, and Attorney General, without any technical criteria. Hence, although the Trump administration’s tariff orders would likely be ruled favorably in terms of statutory backing, the lack of specificity in their contents blur the separation of powers.

To elaborate further, the three-pronged test established in Youngstown Street & Tube Co. v. Sawyer (1952) can be applied to bring more clarity as to whether executive action is constitutional or not. Category 1 of the Youngstown Test (Maximum Authority) is realized if “the President acts pursuant to an express or implied authorization of Congress,” which, in the case of the Trump administration tariffs, the strong intelligible statutes allow the orders to meet the standards of Category 1. [8] Category 2 (Zone of Twilight) occurs “When the President acts in absence of either congressional grant or denial of authority... but there is a zone of twilight which he and Congress may have concurrent authority, or in which its distribution is uncertain.” Whether the tariff orders pass Category 2 is heavily reliant on its exemption of Category 3 which occurs “When the President takes measures incompatible with the expressed or implied will of Congress.” Separately, each tariff order adheres to these categories, as they are generally designed to also adhere to the appropriate legislative authorization, with their functions being of an enforcement nature. However, when examined as a collective body, particularly when paired with tariff orders such as Executive Order 14257, in which the President asserts that he can alter the Harmonized Tariff Schedule of the United States “to increase or expand in scope the duties imposed under this order to ensure the efficacy of this action,” it becomes a self-modifying legislative tariff regime. [9] By transforming itself as a legislative within a “zone of twilight,” the orders are directly incompatible with the will of Congress as they violate the non-delegation doctrine and infringe upon the separation of powers. Therefore, similar to President Roosevelt’s actions in Schecter, the tariff orders may be interpreted as functionally legislative and thus be constitutionally condemned by the standards of the depression-era courts.

Another important facet to consider in this denotation is that apart from Proclamation 10947 and 10895 (Both of which pertain to imports of aluminum and steel into the United States), most of Trump’s tariff orders deal with international entities, which could fall under the President’s enumerated powers in Article II of the Constitution. [10] In United States v. Curtiss-Wright Export Corporation (1936), the Hughes Court ruled that President Roosevelt’s proclamation to ban weapons manufacturers from selling fighter planes and bombers to Paraguay or Bolivia during the Chaco War was constitutional. [11] Justice Sutherland, penning the majority opinion, reasoned that the President has “a much broader scope of discretion in foreign affairs,” allowing Roosevelt to have more leeway in such decision-making than he would have in that of domestic affairs. The court contended that the President would not even need congressional authorization, as he becomes “the sole organ of the Federal government” in regards to international relations. Hence, it should be noted that a violation of the non-delegation doctrine may not be a point of concern when certain tariff orders, such as EO 14245, which are designed to weaken the activities of the global terrorist organization known as the Tren De Aragua gang. With Panama, Schecter, and even Youngstown ruling exclusively against executive policy that was strictly domestic, there exists no grounds by which such precedents could be applied in the jurisdiction of foreign relations. However, many of the orders enforce ongoing tariffs on third parties, rather than directly imposing sanctions on the identified target. This action once again raises concerns for legislative encroachment, as the long-term nature of the vague and self-modifying verbiage of the orders could constitute evolving trade policy rather than a short-term act of diplomatic emergency resolution. [12] When dissenting in Panama, Justice Cardozo argued for "elasticity of government… when faced with new problems,” recognizing the importance of swift and effective executive action during “extraordinary circumstances”. Yet merely justifying such action by declaring states of national emergencies does not make it immune to judicial scrutiny. In Schecter, Chief Justice Hughes wrote that,  “Extraordinary conditions, such as an economic crisis, may call for extraordinary remedies, but they cannot create or enlarge constitutional power.” Thus, the depression-era courts would likely extend their concern over legislative encroachment to all tariff orders, even those that may warrant more leeway in presidential discretion. 

In conclusion, the Depression-era courts would likely declare the current administration’s tariff orders unconstitutional in practice. Although they contain stronger statutory backing than President Roosevelt’s proclamations, their vague enforcement criterion and collective functionality could potentially transform into evolving tariff legislation that would encroach upon Article I of the Constitution. The separation between the executive and legislative should never be ambiguous in any and all matters of governance in order to prevent tyranny. The depression-era courts would undoubtedly sympathize with the importance of executive assertiveness in times of crises, yet the danger that it may create in its own expansion is more destructive to the foundation of American democratic freedom than any external threat it seeks to prevent. Even so, the courts would not dismiss every positive contribution that the tariff orders may have to national interests and substantial policy goals. Thus, the Hughes Court would likely think it wise for the legislature to demand more congressional review, enacting clearer and more specific guidelines so that tariff impositions have more delegation limits to balance executive efficiency with the necessary checks and balances needed to secure appropriate separation of powers.

Edited by Sophia Berg

Endnotes

[1] “Congressional Research Service Report R48549.” Congressional Research Service. 

Accessed October 13, 2025. https://www.congress.gov/crs-product/R48549.

[2] “Executive Order: Imposing Tariffs on Countries Importing Venezuelan Oil. Ballotpedia.

March 27, 2025. https://ballotpedia.org/Executive_Order:_Imposing_Tarriffs_on_Countries_Importing_Venezuelan_Oil_%28Donald_Trumpt_2025%29.

[3] Panama Refining Co. v. Ryan, 293 U.S. 388 (1935).

[4] “IN11129: Venezuela-Related Sanctions and Tariffs.” Congressional Research Service. 2017. 

https://www.congress.gov/crs_external_products/IN/PDF/IN11129/IN11129.17.pdf.

[5] A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935).

[6] “Article I, U.S. Constitution Annotated, Cornell Law School.” Legal Information Institute.  https://www.law.cornell.edu/constitution/articlei#section8.

[7] “Imposing Tariffs on Countries Importing Venezuelan Oil, 90 Fed. Reg. 54,040.” Federal 

Register. March 27. 2025. https://www.federalregister.gov/documents/2025/03/27/2025-05440/imposing-tariffs-on-countries-importing-venezuelan-oil.

[8] Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952).

[9] “Regulating Imports with a Reciprocal Tariff to Rectify Trade Practices That Contribute to Large and Persistent Trade Imbalances, 90 Fed. Reg. 60,06.” Federal Register. April 7, 2025. https://www.federalregister.gov/documents/2025/04/07/2025-06063/regulating-imports-with-a-reciprocal-tariff-to-rectify-trade-practices-that-contribute-to-large-and.

[10] “Adjusting Imports of Aluminum and Steel into the United States, 90 Fed. Reg. 10,524.” Federal Register. June 9, 2025. https://www.federalregister.gov/documents/2025/06/09/2025-10524/adjusting-imports-of-aluminum-and-steel-into-the-united-states.

[11] United States v. Curtiss-Wright Export Corp., 299 U.S. 304 (1936).

[12] Galston, William A. “Are President Trump’s Tariffs Legal?” Brookings Institution. September 12, 2025. https://www.brookings.edu/articles/are-president-trumps-tariffs-legal/.