The IEEPA Tariffs Are Based on Pretext

Title: The IEEPA Tariffs Are Based on Pretext

Source: Lawfare

Date of Publication: October 17, 2025

Author: Stratos Pahis. Pahis is an associate professor of law and co-director of the Dennis J. Block Center for the Study of International Business Law at Brooklyn Law School.

Introduction: The U.S. trade deficit is not an “unusual and extraordinary threat.”

Lawfare Editor’s note: This is a modified excerpt from “This Is (NOT) an Emergency: On the Trump Tariffs and Emergency Powers,” 64 Colum. J. Transnat'l L. (forthcoming Dec. 2025)

On April 2, President Trump declared that the U.S. trade deficit in goods was a national emergency and raised tariffs to the highest level in 100 years to address it.  Three courts have now ruled that those tariffs are illegal, and an appeal by the government will soon be heard by the Supreme Court. As I write elsewhere, the decisions striking down the tariffs are persuasive and should be upheld. But each also ignores a key question: whether the U.S. trade deficit constitutes an “unusual and extraordinary threat” that justifies emergency measures in the first place.

The reticence to answer that question is understandable: There is a long history of courts deferring to the executive on the declaration of emergencies and with respect to foreign affairs, including under the International Emergency Economic Powers Act (IEEPA)—the statute that President Trump invoked to order the tariffs. But it is also unfortunate, because the Trump tariffs are predicated on a transparently pretextual emergency and as such present an ideal case for drawing some sorely needed boundaries around IEEPA powers.

As I elaborate below, the U.S.’s trade deficit in goods is a broad, chronic, foreseeable, and foreseen trade-off of 80 years of U.S. trade strategy. Identifying it as an “unusual and extraordinary threat” is a transparent attempt to reverse that strategy and “eviscerate[]” the laws that establish it. It begs disbelief that Congress intended IEEPA to be used this way. The Supreme Court should make clear that it did not.

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