Assistance from Claude AI.
Author and Context
Peter Navarro is currently serving as Senior Counselor for Trade and Manufacturing in Trump’s second administration, a position he was appointed to in January 2025. He had a similar role in the first Trump administration. This creates a significant conflict of interest. He is an active, current White House official arguing for legal authority that would directly empower his own position and the policies he’s currently implementing.
The Federalist is a conservative online magazine that publishes political commentary and opinion pieces. It’s not an academic or legal journal, but rather a platform for right-leaning perspectives.
Citation: Navarro, Peter. “If Trump Has the Power to Ban Trade, Then He Has the Power to Moderate It Through Tariffs.” The Federalist, November 17, 2025. https://thefederalist.com/2025/11/17/if-trump-has-the-power-to-ban-trade-then-he-has-the-power-to-moderate-it-through-tariffs/.
Theme and Central Argument
One-sentence summary: Navarro argues that the International Emergency Economic Powers Act implicitly authorizes presidential tariffs because the power to “regulate importation” naturally includes tariffs, the traditional tool for controlling trade, and because presidents who can ban imports entirely should also be able to impose the lesser measure of taxing them.
The article’s thesis is that IEEPA gives presidents authority to impose tariffs during national emergencies, even though the statute never mentions the words “tariff,” “duty,” or “tax.”
Key Arguments Presented
1. The “No Magic Words” Argument
Navarro claims that citing Soto v. United States (2025), Congress doesn’t need to use specific terminology when delegating authority—the phrase “regulate… importation” is sufficient to include tariffs.
2. The “Greater Includes Lesser” Doctrine
If presidents can completely ban imports (which everyone agrees IEEPA allows), they must also be able to impose partial restrictions like tariffs. Navarro asks: “How could a president bar all imports but not impose even a 1 percent tariff?”
3. Historical Understanding
He cites Chief Justice Marshall in Gibbons v. Ogden (1824) noting that duties have long been understood as regulating commerce, and Federal Energy Administration v. Algonquin SNG (1976), where “adjust imports” was interpreted to include “license fees and duties.”
4. Economic and Diplomatic Context
The article argues tariffs are superior to alternatives because:
- Embargoes are too extreme (citing Jefferson’s 1807 embargo leading to war, 1941 embargoes on Japan triggering Pearl Harbor)
- Quotas are inferior because they transfer profits to foreign producers rather than collecting revenue for the U.S. Treasury, and they’re easier to evade
Technical Terms Explained
IEEPA (International Emergency Economic Powers Act): A 1977 law giving presidents authority to regulate economic transactions during national emergencies. It was passed to limit presidential emergency powers after concerns about executive overreach.
Tariffs: Taxes on imported goods, traditionally set by Congress under its constitutional power to “regulate Commerce with foreign Nations” (Article I, Section 8).
Quotas: Limits on the quantity of specific goods that can be imported.
Embargoes: Complete bans on importing goods from specific countries or specific types of goods.
Solicitor General: The federal government’s chief lawyer before the Supreme Court. John Sauer is defending the Trump administration’s position in this case.
Statutory interpretation: The process courts use to determine what a law means, looking at text, context, purpose, and precedent.
Counterarguments Not Addressed
1. The Text Matters
Congress knows how to authorize tariffs—it has done so explicitly in multiple statutes (Section 232 for national security, Section 301 for unfair trade practices, Section 201 for import surges). If Congress wanted IEEPA to include tariff authority, it could have said so. The absence of such language is significant, not incidental.
2. IEEPA’s Legislative History
IEEPA was passed specifically to restrict presidential emergency powers after concerns about executive overreach during the Vietnam War era. The National Emergencies Act and IEEPA were reforms meant to rein in presidential authority, not expand it. Reading IEEPA broadly contradicts this historical context.
3. Constitutional Separation of Powers
The Constitution explicitly gives Congress the power to “lay and collect Taxes, Duties, Imposts and Excises” and to “regulate Commerce with foreign Nations” (Article I, Section 8). Allowing presidents to impose tariffs without clear congressional authorization raises serious questions about whether this delegation is constitutionally permissible under the non-delegation doctrine.
4. The “Greater Includes Lesser” Argument Is Flawed
This doctrine doesn’t always apply in law. Different powers serve different purposes and have different constitutional implications. A complete ban eliminates trade entirely; a tariff continues trade while collecting revenue. These aren’t just different degrees of the same power—they’re different types of economic tools with different effects. Moreover, bans are binary and temporary emergency measures, while tariffs are typically ongoing revenue measures traditionally within Congress’s domain.
5. Textual Anomalies
IEEPA authorizes regulating “any property in which any foreign country or a national thereof has any interest.” Tariffs don’t regulate foreign property—they tax domestic importers. This textual mismatch weakens the government’s argument.
6. The Economic Arguments Are Irrelevant
Whether tariffs are better policy than quotas or embargoes doesn’t answer whether Congress authorized them in IEEPA. Courts interpret statutes based on what Congress wrote, not what would make better policy. Navarro conflates legal interpretation with policy preferences.
7. Existing Tariff Authority
Congress has already given presidents substantial tariff authority through other statutes. If IEEPA includes tariff power, these other provisions would be largely superfluous. Courts generally avoid interpretations that render statutory provisions redundant.
8. “Emergency” Limitation
Even if IEEPA allows tariffs, it only does so during genuine national emergencies. Using IEEPA for routine trade policy (which is what broad-based tariffs represent) would evade the statute’s emergency requirement and effectively give presidents permanent tariff authority Congress never intended to grant.
Is the Article Successful?
Partially. Navarro clearly explains the government’s legal theory and provides helpful historical context about embargoes and quotas. The “greater includes lesser” argument is presented accessibly.
However, the article fails as legal analysis because:
- It ignores the strongest counterarguments
- It conflates policy arguments (tariffs are better than quotas) with legal arguments (IEEPA authorizes tariffs)
- It doesn’t engage with separation of powers concerns
- It doesn’t acknowledge IEEPA’s purpose to limit executive power
- It presents one side of a genuinely contested legal question as if the answer were obvious
Is the Article Correct?
This is genuinely uncertain—which is precisely why the Supreme Court is hearing the case.
Arguments favoring Navarro’s position:
- The “greater includes lesser” logic has some intuitive appeal
- “Regulate importation” is broad language that could encompass tariffs
- Presidents need flexible tools for genuine emergencies
Arguments against:
- Congressional intent matters, and IEEPA was meant to restrict executive power
- The Constitution gives tariff authority to Congress
- Multiple other statutes explicitly authorize presidential tariffs, suggesting IEEPA doesn’t
- The statute’s text focuses on blocking property transactions, not collecting revenue
- Allowing IEEPA tariffs would effectively transfer Congress’s constitutional power to the president
Most legal scholars and commentators I’m aware of (based on coverage before my knowledge cutoff) viewed the government’s IEEPA tariff argument as a significant stretch of statutory authority. The plaintiffs’ position—that “regulate importation” doesn’t include imposing taxes that were traditionally Congress’s constitutional prerogative—has substantial textual and constitutional support.
The fundamental question: When Congress wants to authorize presidential tariffs, it says so explicitly (as it has in other statutes). Should courts read that authority into IEEPA’s silence, or respect Congress’s choice not to include it?
Navarro’s piece is advocacy, not balanced analysis. It presents the government’s best arguments while ignoring the substantial legal problems with stretching IEEPA to cover tariffs—problems that will determine whether this legal theory survives Supreme Court scrutiny.