What A President Can Do Under The International Emergency Economic Powers Act

NPR's Ari Shapiro talks with Elizabeth Goitein of the Brennan Center for Justice about presidential powers acts, and the state of Congressional authority when a president invokes one.

ARI SHAPIRO, HOST:

When President Trump announced the new tariffs on imports from Mexico, he cited his authority under a law called the International Emergency Economic Powers Act. Elizabeth Goitein is an expert on presidential power at the Brennan Center, and she joins us now to explain what this law is all about. Welcome to the program.

ELIZABETH GOITEIN: Thanks for having me.

SHAPIRO: So what can a president do under this law, the International Emergency Economic Powers Act?

GOITEIN: The International Emergency Economic Powers Act, which we call IEEPA, is an incredibly powerful authority that allows the president to declare a national emergency with respect to any unusual and extraordinary threat to the national security foreign policy or economy of the United States that has its source, in substantial part, from overseas. So as long as the president declares that there is such a threat and identifies that threat, he can then invoke IEEPA and can take, really, a staggering range of economic actions and impose severe economic penalties on people or entities or countries that are designated as being associated in some way with that threat.

SHAPIRO: And is the nature and extent of the threat totally subjective? Is it just up to the president to say, yeah, I think this is an extraordinary threat?

GOITEIN: It really is up to the president. The IEEPA authority comes within the umbrella of the National Emergencies Act, which means that Congress has the ability to pass a resolution to terminate the emergency. But that's basically just a law that the president has to sign. So unless Congress can muster a veto-proof majority to pass it, the emergency stays in place.

SHAPIRO: You tweeted today that this act has been used more frequently than any other emergency power by the president. Can you give us some examples of how other presidents have used it?

GOITEIN: The oldest declaration under IEEPA dates back to 1979, and that was declared in the wake of the Iranian hostage crisis. That is still in effect. So we are still in a state of emergency over the Iranian hostage crisis. Since then it's been used for a number of purposes. In the beginning, it was mostly to impose sanctions against foreign governments, foreign countries. But over time, it's been loosened a bit, and it's been used to impose sanctions on individuals and political organizations, suspected terrorists and terrorist groups, drug traffickers and the like.

SHAPIRO: And even as presidents have used this authority more broadly over time, this use of the authority by President Trump seems to be novel. Tell us what's new about this.

GOITEIN: This is an unprecedented use of IEEPA. IEEPA has not been used by any previous president to impose tariffs on goods from another country. So it's really a first. Now, there was a law before IEEPA, the Trading with the Enemy Act, which in many ways was the precursor to IEEPA. And that act was used to impose tariffs. So I'm certain that the administration is going to say that IEEPA can be and should be used in the same way. Then ultimately, I think this will be challenged in court, and it will come down to a court's reading of what Congress's intent was in passing this law.

SHAPIRO: Is all the president has to do just declare that the emergency exists, or are there any other steps that the White House needs to take in order to enact these tariffs by June 10?

GOITEIN: All the president has to do is issue an executive order that contains the magic words, that there is an extraordinary and unusual threat - in this case, he's going to say unlawful immigration - that poses a threat to the national security or foreign policy or the economy of the United States. Presumably, he will then delegate to the secretary of commerce the job of actually imposing the tariffs. But there's nothing else that needs to be done between now and then. There's no waiting period. There's no opportunity for Congress to weigh in.

There is a requirement in the act that the President consult with Congress wherever possible before invoking IEEPA. I'm sure the president will try to construe some of the conversations (laughter) that have happened between him and Congress on immigration as his efforts to consult.

SHAPIRO: That's Elizabeth Goitein, co-director of the Brennan Center for Justice's Liberty and National Security Program. Thanks for talking with us.

GOITEIN: Thanks so much.

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