The Danger from Trump’s Mexico Tariff Threat

Congress must stand up to the president’s latest claim of emergency powers.

June 4, 2019
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President Trump is on track to continue his clear abuse of emergency powers, this time by using them to put economic pressure on Mexico to block immigrants to the United States from Central America.

Last week, the White House issued a statement by the president claiming that “Mexico’s passive cooperation” in allowing migrants to pass through and reach the American border “constitutes an emergency and extraordinary threat to the national security and economy of the United States.”

Trump stated that beginning on June 10, he would use purported authority under the International Emergency Economic Powers Act (IEEPA) to place a 5 percent tariff on goods coming from Mexico and that tariff would be raised in 5 percent increments every month thereafter until it reaches 25 percent on October 1. The tariffs would then remain at that level until “the illegal migration crisis is alleviated through effective actions taken by Mexico, to be determined in our sole discretion and judgment.”

Whether the president follows through or not, this incident provides another stark reminder that reform to national emergency powers is necessary to curb abuses not only by President Trump, but by future presidents as well.

IEEPA is one of 123 emergency powers a president can invoke by declaring a national emergency, and it is by far the most commonly used. Fifty-five of 61 national emergencies declared since the governing law, the National Emergencies Act, took effect in 1978 have relied solely or primarily on IEEPA. The majority of the declarations invoking IEEPA identify a particular country involved in some objectionable activity and impose sanctions on the government itself or individuals, like sanctions against Venezuelan officials in 2015 for human rights violations.

A smaller group of IEEPA declarations instead target an activity as opposed to a country. For example, a 2017 executive order targeted  people involved in serious human rights abuses or corruption, covering individuals from a range of places including The Gambia, Ukraine, and Guatemala. While IEEPA has primarily been used against targets abroad, it can be and has been used against persons and entities within the United States.

IEEPA is to be used “to deal with any unusual and extraordinary threat, which has its source in whole or substantial part outside the United States, to the national security, foreign policy, or economy of the United States.” It allows the president to regulate or prohibit financial exchanges and property in a number of ways.

While the Constitution generally gives Congress the power to regulate trade between the United States and other countries and to impose tariffs, Congress has over the years delegated a number of those powers to the president through various statutes. Nevertheless, IEEPA has never been used to impose tariffs, and some have expressed skepticism that it even allows the president to do so, including members of the president’s own party. Reacting to Trump’s statement, Senate Finance Committee Chairman Chuck Grassley (R-IA) said, “Trade policy and border security are separate issues. This is a misuse of presidential tariff authority and counter to congressional intent.”

Even if the president were allowed to use IEEPA to impose tariffs, there is no valid claim that conditions on the southern border constitute a “national emergency” within the meaning of the law. Many of Trump’s factual claims regarding the border are provably wrong, but even taking them at face value, they at most constitute an ongoing problem that should be resolved in conjunction with Congress, not a sudden and unexpected development necessitating the extraordinary remedy of emergency powers.

While Trump’s announcement is significant for its stated intention to invoke emergency powers, by itself it has no legal effect. In order to use IEEPA powers, the president would need to issue an executive order making the required finding of an “unusual and extraordinary threat,” and he would have to transmit a notification to Congress. One possibility is that the president adds IEEPA powers to the February emergency declaration regarding the border (presumably by further characterizing that emergency as an “unusual and extraordinary threat”).

If he does, or if IEEPA is in some other way operationalized, it would be just a small additional step to add other entities to the sanctions list under the same claim that conditions at the border constitute “an unusual and extraordinary threat” from abroad. Indeed, the president would not even have to make any such additional designations himself. He could, as often happens with IEEPA invocations, delegate the authority to sanction particular entities to, say, the secretary of the treasury or the secretary of commerce.

Such additional designations could strike much closer to home and be even more problematic. For instance, an organization that assists migrants in Mexico ― or in the United States ― could be targeted for providing aid. In addition, should such an organization (or anyone else) interact financially with Mexico or other designated entities in that process, they could be potentially prosecuted or fined for violating IEEPA sanctions. Such entities in the United States would have some access to redress in courts in a way that foreign entities may not, but that is little comfort, for several reasons: many legal issues surrounding IEEPA’s application have not yet been definitively resolved by the courts, courts are usually deferential to the executive in regards to claims concerning national security, and IEEPA sanctions could bankrupt an organization or person by the time the court process concludes.

Some wonder if this statement by Trump isn’t just a tactic for the current trade negotiations with Mexico. There’s recent precedent for this: last month, Trump declared a national emergency concerning threats to U.S. technology infrastructure and invoked IEEPA. Many presume the declaration will eventually be used to target Chinese telecom companies, particularly, Huawei. But the declaration came in the midst of trade war with China, and Trump indicated that he would be willing to lift sanctions as part of a trade deal, signifying that he saw emergency powers in that context as negotiating leverage.

The United States and Mexico are also in the midst of trade negotiations, and there are similar indications in Trump’s statement regarding Mexico. There, the president discusses not only his claims regarding the health and safety of Americans, but also laments that in his view “Mexico has made massive amount of money in its dealings with the United States, and this includes the tremendous number of jobs leaving our country.” He goes on to exhort: “Remember, our great country has been the ‘piggy bank’ from which everybody wants only to TAKE. The difference is that now we are firmly and forcefully standing up for America’s interests.”

Further, this would not be the first time the president has imposed tariffs under the guise of national security concerns to achieve political goals. Protecting the U.S. steel industry had long been a political priority of the current administration, and in March 2018, the president claimed a national security justification to place tariffs on steel and aluminum imports. While this action did not require declaration of a national emergency, there are clear parallels with what the president now says he is planning to do.

Even if the president does not ultimately follow through on his threat to use emergency powers, his casual invocation of them outside their intended use degrades and distorts their significance. To be clear, Trump is not alone among presidents in taking license with IEEPA powers. Other presidents have used IEEPA to pursue foreign policy goals in the absence of true emergencies, and Congress has acquiesced. But Trump has proven willing to abuse emergency powers under the National Emergencies Act to an unmatched degree. That is why the time is now for Congress to reform the law and place greater limits on the use of emergency powers.

The Brennan Center is advocating sensible reform measures. These include requiring renewal of emergency declarations by Congress after a short time, such as 30 days, and adding a definition of national emergency. As the presidential abuses of emergency powers add up, no one can honestly claim to not see the next — possibly worse — abuse of emergency powers coming.

(Image: Win McNamee/Getty)