by Olivia Baldwin*

In February of 2025, President Trump declared a national emergency under the International Emergency Economic Powers Act (“IEEPA”) in order to impose sweeping tariffs on major U.S. trading partners. Exercising such expansive economic authority on the basis of vague statutory language raises serious separation of powers concerns under the nondelegation doctrine. Although the Supreme Court has invalidated statutes on nondelegation grounds only twice, the current Court has signaled renewed interest in enforcing the doctrine. This resurgence raises a critical question: Should the nondelegation canon apply less rigorously when Congress delegates power to the President in matters of foreign affairs? The asserted “foreign affairs” exception, based largely on the Court’s opinion in U.S. v. Curtiss-Wright Exp. Corp. has long insulated such legislative delegations from meaningful scrutiny. However, a foreign affairs exception has no basis in the text of the Constitution and is inappropriate given modern convergence between foreign and domestic matters. This Contribution argues that the nondelegation doctrine should apply with equal force in both foreign and domestic contexts, and that the proper analysis is whether the President possesses independent power over the delegated matter. Using IEEPA as a focal point, this Contribution demonstrates that “foreign affairs” provide no coherent or constitutionally grounded justification for relaxing the nondelegation doctrine.

After taking office in 2025, President Trump unilaterally imposed tariffs on major U.S. trading partners, including China, Canada, and Mexico.1 However, the U.S. Constitution exclusively grants Congress the power to “lay and collect, Taxes, Duties, Imposts and Excises,” not the executive.2 This power has been interpreted to encompass the imposition of tariffs, as tariffs were historically the primary source of federal revenue.3 Congress has previously delegated tariff authority to the President under specific circumstances and in accordance with established procedures.4 However, President Trump did not rely on such explicit statutory delegations for the challenged tariffs. Instead, he purported to act pursuant to a broad grant of authority under the International Emergency Economic Powers Act (“IEEPA”). IEEPA authorizes the president to regulate or prohibit a wide range of international economic transactions after declaring a national emergency in response to an “unusual and extraordinary threat” to national security, foreign policy, or the economy.5 No previous president has used IEEPA as authorization for tariffs, and this novel exercise of power faced immediate legal challenges in V.O.S. Selections, Inc. v. U.S. and Learning Res., Inc. v. Trump.6 These cases were consolidated and two issues were presented to the Supreme Court for review: (1) Whether IEEPA legally authorizes the tariffs imposed by President Trump; and (2) if IEEPA does authorize the tariffs, whether the statute unconstitutionally delegates legislative authority to the President.

In addressing unconstitutional delegations of legislative authority, the Supreme Court has previously recognized an exception to strict nondelegation principles in matters of foreign affairs, relying primarily on U.S. v. Curtiss-Wright Exp. Corp..7 The reasoning in Curtiss-Wright was largely functional and prudential, with little reference to the power expressly vested in the President by the Constitution. Additionally, the distinction between foreign and domestic affairs has become increasingly difficult to draw overtime due to increased globalization. A lack of grounding in the text of the Constitution, along with changing circumstances in the nature of foreign and domestic affairs, warrants a closer examination into the merits of the foreign affairs exception to nondelegation. This Contribution will argue that the proper inquiry is whether the President has independent Article II power over the delegated matter. Looking specifically at IEEPA, this reframing of the foreign affairs exception would fail to justify President Trump’s purported tariff authority. Here, implementation of the proposed tariffs has significant impacts on the domestic economy, and the President possesses no independent Article II tariff power to support such action.8 Broad and undefined grants of authority in realms traditionally reserved to Congress, with significant impact on the domestic economy, threatens the Framer’s vision against an overly powerful unitary executive.

The Constitution vests all legislative powers in Congress.9 While the text of the Constitution does not explicitly grant Congress the authority to delegate this power to other branches of government, the Supreme Court has frequently upheld statutory delegations.10 These decisions reflect an understanding that Congress would be incapable of operating efficiently if it could not delegate some of its functions to other branches.11 However, such delegations are still subject to constitutional limitations.12 The nondelegation doctrine prevents Congress from “transferring its legislative power to another branch of Government.”13 To be considered constitutional, statutory delegations require an “intelligible principle to which the person or body authorized to [exercise the delegated authority] is directed to conform.”14

In order to satisfy the intelligible principle standard, Congress must establish an essential policy and the standards for carrying out that policy.15 Pursuant to a statute, another branch is permitted to make subordinate rules and findings of fact to determine whether the policy, as declared by the legislature, applies to a given situation.16 In Panama Refining Co. v. Ryan, Section 9(c) of Title I of the 1933 National Industrial Recovery Act (NIRA) of authorized the President to prohibit the transportation of petroleum in interstate commerce.17 However, Section 9(c) provided no standards to guide the President’s decision, ultimately granting the President complete discretion as to when and how to impose such a ban.18 The Court held that this grant of authority amounted to a legislative policy decision as opposed to an execution of a law, therefore violating the nondelegation doctrine.19 Similarly, in A.L.A. Schechter Poultry Co. v. U.S., Congress statutorily authorized the President to approve codes of fair competition in Section 3 of NIRA.20 This provision did not define “fair competition,” nor did it provide standards for evaluating whether competition is fair.21 Section 3 therefore granted the President unfettered discretion to formulate codes believed to be “wise and beneficent” measures for the rehabilitation and expansion of certain trades or industries.22 Such a decision once more amounted to a legislative choice as opposed to subordinate rulemaking or fact-finding, in opposition to the foundational principles of the nondelegation doctrine.

Despite being decided in the same year, this trend of striking down statutes on nondelegation grounds did not continue. Panama Refining Co. and Schechter Poultry are the only two instances where the Supreme Court struck down statutes on legislative nondelegation grounds.23 While lying mostly dormant since the New Deal Era, several members of the current Supreme Court have signaled a desire to reinvigorate the nondelegation doctrine including Justice Gorsuch, Justice Kavanaugh, and Justice Thomas. These justices have expressed a more formalist view of separation of powers and have criticized the intelligible principle standard as lacking meaning.24 This increased interest in the nondelegation doctrine invites the question as to whether there should be a foreign affairs exception to the modern implementation of the nondelegation doctrine.

The foreign affairs exception to nondelegation originated in Curtiss-Wright, where the Court upheld a statute granting the President authority to ban arms and munitions sales to certain countries engaged in the Chaco War.25 The ban could be activated via proclamation if the President found that such a ban would contribute to peace.26 In his majority opinion, Justice Sutherland noted that the President has distinct and broad powers in matters of foreign affairs that warrant greater deference from Congress.27 Justice Sutherland famously labeled the President the “sole organ” of the nation in matters of external relations and international affairs.28 However, he cited no constitutional text in support of this proposition.29 According to Justice Sutherland, these powers exist outside of the Constitution and inherently belong to the federal government under the law of nations.30

Curtiss-Wright came a year after the Supreme Court’s rulings in Panama Refining and Schechter Poultry, signaling a retreat on the reach of the nondelegation doctrine. In defense of this changing attitude toward nondelegation, Justice Sutherland distinguished Curtiss-Wright from prior precedent based on subject matter.31 While the earlier cases dealt with matters of internal affairs, the challenged action in Curtiss-Wright implicated foreign affairs.32 Even so, the previous decisions on nondelegation were justified not on subject matter, but on how much discretion was granted via statutory delegation.33 Curtiss-Wright was decided during the height of the New Deal Era and the rapid expansion of the administrative state. The largely functional reasoning of the opinion can be viewed as an attempt to cut back on administrative power and preserve presidential power in matters of foreign affairs.34 Since Curtiss-Wright, the Supreme Court has continued to affirm the notion that nondelegation plays a more limited role in areas of national security and foreign policy.35 Justice Robert Jackson in his Youngstown Sheet & Tube Co. v. Sawyer concurrence emphasized that the “strict limitations upon Congressional delegations of power to the President over internal affairs does not apply with respect to delegations of power in external affairs.”36 These cases reflect a constitutional understanding that statutorily granted presidential authority in foreign affairs is subject to fewer nondelegation constraints than exercises of such authority over domestic affairs.

Curtiss-Wright has faced criticism for greatly expanding the power of the President in matters of foreign affairs without grounding this expansion in the Constitution itself. A more persuasive view rejects a categorical “foreign affairs” exception to the nondelegation doctrine and instead focuses on the President’s independent constitutional powers.37 On this view, delegation concerns are reduced to three instances: (1) Where Congress authorizes the President to take actions that the President already has independent constitutional authority to take; (2) where a Congressional action unlocks the President’s independent authority to take actions; and (3) where Congress authorizes the President to take actions the President could not otherwise take, but conditions that authority on a determination the President is independently empowered to make.38 These categories more accurately capture the underlying logic of Curtiss-Wright, which emphasized the President’s independent and exclusive powers in matters of foreign affairs, rather than establishing a new exception to the nondelegation doctrine.39 Notwithstanding the different characterizations of the exception, since it is generally recognized that the President has some independent powers relating to national defense, the military, diplomacy, and recognition of foreign affairs, there is overlap between the President’s independent powers and powers relating to foreign affairs.40 Accordingly, foreign affairs should not be understood as an exception to the nondelegation doctrine, but as a domain in which the executive possesses more independent constitutional power.

Despite criticism of the Supreme Court’s reasoning in Curtiss-Wright, courts have frequently afforded special deference to delegations that grant the President expansive powers in matters relating to foreign affairs.41 However, the Supreme Court has expressed a concern with an overly broad reading of Curtiss-Wright that grants the President “unbounded power.”42 In Zivotofsky ex rel. Zivotofsky v. Kerry, the Court narrowed the holding of Curtiss-Wright and emphasized that the case did not stand for the idea that the President has exclusive authority to conduct diplomatic relations.43 Revivalists of the nondelegation doctrine, who have an interest in maintaining a foreign affairs exception, have attempted to ground the exception in the text of the Constitution itself, perhaps to avoid the criticism faced by Curtiss-Wright.44 Under this view, a foreign affairs exception should exist when delegated authority overlaps with the President’s foreign affairs powers under Article II.45 In his Gundy v. U.S. dissent, Justice Gorsuch noted that Congress may grant the President “broad authority regarding the conduct of foreign affairs or other matters where he enjoys his own inherent Article II powers.”46 According to Justice Gorsuch, when Congress’s legislative authority overlaps with authority that is constitutionally vested in another branch, there are no separation of powers concerns.47 The executive would therefore be free to act pursuant to their own independent Article II powers, eliminating the need for an intelligible principle from Congress. This understanding of authority correctly focuses on the President’s independent power as opposed to one that merely considers whether the delegation falls in a foreign or domestic domain.

Additionally, a subject-matter exception based on a distinction between foreign and domestic affairs is no longer workable given the extent to which these two domains have converged. The Curtis-Wright exception rested on the notion that foreign affairs was an identifiable category separate from domestic matters, but this characterization does not adequately reflect the current state of the world. Since Curtiss-Wright was decided in 1936, increased globalization has altered the relationship between foreign policy and domestic regulation. Statutes that implicate foreign affairs may also implicate domestic affairs, so determining whether a particular economic action is “foreign” or “domestic” is an increasingly challenging task which would require courts to anticipate the effects of a regulation.48 This difficulty in distinguishing is heightened for economic legislation. For example, although tariffs are targeted at foreign nations, they greatly impact the domestic economy by altering prices and impacting supply chains.49 Considering their original purpose as a revenue-raising tool for the newly established United States, tariffs were traditionally a domestic policy.50 Their increased use as a political bargaining chip in foreign affairs did not begin until the twentieth century.51 The historical purpose and current domestic consequences of tariffs contravene any attempt to classify them as falling solely with the “national security and foreign policy realms.”52

The more formalistic view of an exception to nondelegation, which emphasizes independent executive powers in matters of foreign affairs, would still not save the delegation under IEEPA. As an initial matter, IEEPA requires the President to define an emergency.53 It is unclear whether the President possesses an “emergency assessment power,” which is needed to access the actions authorized by IEEPA.54 Even assuming the President has this assessment power, IEEPA grants the President the authority to impose broad and open-ended economic restrictions that he could not implement pursuant to his own independent foreign affairs powers.55 In a very basic sense, tariffs can be construed as a matter of foreign affairs in that they tax specified imports from other nations. But taxing and spending power is a core legislative function. It is the first enumerated power and was understood by the Framers to encompass tariff power.56 As this is a core legislative function over a subject wherein the President has no independent powers under the Constitution, no exception to the default nondelegation principles should apply. IEEPA is therefore subject to the full scope of the “intelligible principle” standard. To satisfy this standard, IEEPA would need to, at a minimum, set guidelines for when and to what extent tariffs are appropriate, like previous delegations of tariff authority.57

As the President possesses no independent power in this domain, the nondelegation doctrine applies with full force. Previous delegations of tariff authority were upheld because the statutes contained sufficient specifications to survive the nondelegation doctrine.58 As such, they are instructive of the level of specificity required. For instance, Section 232 of the Trade Expansion Act requires an initial finding and report by the Secretary of Commerce that an article is being imported “in such quantities or under such circumstances as to threaten to impair the national security.”59 If a President decides to act under Section 232, the President must 1) do so in accordance with a specified set of procedures and 2) explain to Congress via a written statement the reasons why the President has decided to act, or has refused to take action.60 Other Constitutional delegations of tariff power similarly contain strict limitations. Section 122 of the 1974 Trade Act gives the President temporary authority to impose tariffs of up to 15% in certain specified circumstances.61 Section 122 requires a determination of “large and serious United States balance-of-payment deficits” or an “imminent and significant depreciation of the dollar.” In prior delegations of tariff power, the President’s authority to regulate tariffs is clearly specified and subject to limitations. In those instances, there must be some finding of an underlying economic security concern that the imposition of tariffs is meant to address. IEEPA lacks these features. Since IEEPA fails to set sufficient standards, it constitutes an improper delegation of legislative authority.

Given the current Supreme Court’s increased interest in revitalizing the nondelegation doctrine, the Court should also reevaluate the traditional “foreign affairs” exception. Subject-matter carveouts based on post-hoc determinations are inconsistent with separation of powers notions and favor an overly deferential approach. This approach has no constitutional basis, grants the President broad and virtually unchecked power, and allows Congress to shirk its own responsibilities. The correct approach instead analyzes the executive’s independent powers. Foreign affairs should not be treated as an exception to the nondelegation doctrine, but rather as an area in which the executive exercises independent constitutional authority that does not require congressional delegation. Although the Supreme Court left the question of nondelegation unresolved in Learning Res., Inc. v. Trump, if forced to approach the issue in future litigation, courts should apply the nondelegation doctrine with equal force to foreign and domestic matters. For statutes that lack the level of specificity required by the nondelegation doctrine, courts should conduct a full analysis into whether the President possesses any independent power over the delegated matter. These steps would ensure greater adherence to separation of powers principles.

* Olivia Baldwin is a J.D. Candidate (2026) at New York University School of Law. This Contribution is a commentary on the nondelegation issues raised by President Trump’s exercise of tariff authority under IEEPA. This piece was written prior to the Supreme Court’s ruling in Learning Res., Inc. v. Trump, No. 24–1287, 2026 WL 477534 (U.S. Feb. 20, 2026). That case was decided on statutory interpretation grounds and left the question of nondelegation unanswered.

1. Exec. Order No. 14,193, 90 Fed. Reg. 9113 (Feb. 1, 2025); Exec. Order No. 14,194, 90 Fed. Reg. 9117 (Feb. 1, 2025); Exec. Order No. 14,195, 90 Fed. Reg. 9121 (Feb. 1, 2025).

2. U.S. Const. art. 1, § 8, cl.1.

3. John M. Dobson, Two Centuries of Tariffs: The Background and Emergence of the U.S. International Trade Commission 1 (U.S. Int’l Trade Comm’n, 1976).

4. See, e.g., Trade Expansion Act of 1962, Pub. L. No. 87-794, § 232, 76 Stat. 877 (codified at 19 U.S.C. § 1862).

5. International Emergency Economic Powers Act, Pub. L. No. 95-223, 91 Stat. 1626 (1977) (codified as amended at 50 U.S.C. §§ 1701–10).

6. V.O.S. Selections, Inc. v. United States, 772 F. Supp. 3d 1350 (C.I.T. 2025) aff’d in part, vacated in part, remanded sub nom. V.O.S. Selections, Inc. v. Trump, 149 F.4th 1312 (Fed. Cir. 2025), cert. granted, 146 S. Ct. 73 (2025), and aff’d sub nom. Learning Res., Inc. v. Trump, No. 24–1287, 2026 WL 477534 (U.S. Feb. 20, 2026); Learning Res., Inc. v. Trump, 784 F. Supp. 3d 209 (D.D.C. 2025), cert. granted before judgment, 146 S. Ct. 73 (2025), and vacated and remanded, No. 24–1287, 2026 WL 477534 (U.S. Feb. 20, 2026).

7. U.S. v. Curtiss-Wright Exp. Corp., 299 U.S. 304, 319 (1936).

8. See Erica York & Alex Durante, Trump Tariffs: Tracking the Economic Impact of the Trump Trade War, Tax Foundation (Dec. 1, 2025), https://taxfoundation.org/research/all/federal/trump-tariffs-trade-war/.

9. U.S. Const. art. 1, § 1.

10. See, e.g., Mistretta v. United States, 488 U.S. 361, 372 (1989) (noting that the principle of separation-of-powers does not prevent Congress from obtaining the assistance of other branches of government).

11. See, e.g., Am. Power & Light Co. v. Sec. and Exch. Comm’n, 329 U.S. 90, 105 (1946).

12. See, e.g., Mistretta, 488 U.S. at 372 (citing J.W. Hampton, Jr., & Co. v. United States, 276 U. S. 394, 406 (1928)).

13. Gundy v. United States, 588 U.S. 128, 132 (2019).

14. Mistretta, 488 U.S. at 372 (citing J.W. Hampton, Jr., 276 U. S. at 409 (1928)).

15. A.L.A. Schechter Poultry Co. v. U.S., 295 U.S. 495, 530 (1935); Pan. Refin. Co. v. Ryan, 293 U.S. 388, 421 (1935).

16. Schechter Poultry, 295 U.S. at 530; Pan. Refin., 293 U.S. at 421.

17. Pan Refin., 293 U.S. at 421.

18. See id. at 430.

19. Id. at 418.

20. Schechter Poultry, 295 U.S. at 521–22.

21. Id. at 532.

22. Id. at 538.

23. See Schechter Poultry, 295 U.S. at 541; Pan. Refin., 293 U.S. at 430–31.

24. Gundy, 588 U.S. at 157–59 (2019) (Gorsuch, J., dissenting) (finding that delegation is only appropriate in three narrow situations: to “fill up the details” of a general policy, to engage in fact finding when the application of a rule depends on it, and to carry out certain non-legislative responsibilities that are already within the scope of executive power); Dep’t of Transp. v. Ass’n of Am. R.R.s, 575 U.S. 43, 85 (2015) (Thomas, J., concurring in the judgment) (“Under the guide of the intelligible-principle test, the Court has allowed the Executive to go beyond the safe realm of factual investigation to make political judgments…”); Paul v. U.S., 589 U.S. 1087, 1088 (2019) (Kavanaugh, J., concurring) (noting that Justice Gorsuch’s dissent in Gundy raised “important points that may warrant further consideration in future cases.”).

25. Curtiss-Wright, 299 U.S. at 312, 319.

26. Id. at 312.

27. Id. at 320 (“It is quite apparent that if, in the maintenance of our international relations, embarrassment—perhaps serious embarrassment—is to be avoided and success for our aims achieved, congressional legislation which is to be made effective through negotiation and inquiry within the international field must often accord to the President a degree of discretion and freedom from statutory restriction which would not be admissible were domestic affairs alone involved.”).

28. Id. at 319–20.

29. Id.

30. Id. at 318.

31. Curtiss-Wright, 299 U.S. at 315–16.

32. Id.

33. Schechter Poultry, 295 U.S. at 530; Pan. Refin., 293 U.S. at 421.

34. See Nondelegation’s Unprincipled Foreign Affairs Exceptionalism, 134 Harv. L. Rev., 1132, 1134 (2021).

35. See, e.g., Fed. Commc’n Comm’n v. Consumers’ Rsch., 606 U.S. 656, 706 (2025) (Kavanaugh, J., concurring in the judgment).

36. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 636 n.2 (1952) (Jackson, J., concurring in the judgment).

37. See Curtis A. Bradley & Jack L. Goldsmith, Foreign Affairs, Nondelegation, and the Major Questions Doctrine, 172 U. Pa. L. Rev. 1743, 1744 (2024).

38. Id. at 1768–69.

39. Curtiss-Wright, 299 U.S. at 315–16, 319–20.

40. Consumers’ Rsch., 606 U.S. at 706 (Kavanaugh, J., concurring in the judgment) (“[I]n the national security and foreign policy realm, the nondelegation doctrine . . . appropriately has played an even more limited role in light of the President’s constitutional responsibilities and independent Article II authority.”).

41. See, e.g., United States v. Henry, 888 F.3d 589, 596 (2d Cir. 2018) (“[A] delegation of legislative authority to the executive is accorded special deference if it concerns foreign affairs. This deference is justified by the ‘degree of discretion and freedom’ that the executive requires to conduct foreign relations effectively.”) (citing Curtiss-Wright, 299 U.S. at 320); see also Loving v. United States, 517 U.S. 748, 768 (1996) (the nondelegation doctrine did not preclude Congress from delegating its constitutional authority to the President to define aggravating factors that permit imposition of statutory penalty of death in military capital cases).

42. Zivotofsky ex rel. Zivotofsky v. Kerry, 576 U.S. 1, 20 (2015).

43. Id. at 20.

44. See, e.g., Consumers’ Rsch., 606 U.S. at 706 (2025) (Kavanaugh, J., concurring in the judgment).

45. Id.

46. Gundy, 588 U.S. at 169 (Gorsuch, J., dissenting).

47. Id. at 159 (Gorsuch, J., dissenting).

48. See Timothy Meyer & Ganesh Sitaraman, The National Security Consequences of the Major Questions Doctrine, 122 Mich. L. Rev. 55, 81 and 86 (2023).

49. See McGregor McCance, Supply Chains Explained: How They Work and Why Tariffs Can Strain Them (Mar. 11, 2025), https://news.darden.virginia.edu/2025/03/11/supply-chains-explained-how-they-work-and-why-tariffs-can-strain-them/.

50. See Dobson, supra note 3, at 1.

51. Id. at 1–2 (“[T]he revenue aspect of the tariffs has been accompanied by a second major function: that of attempting to prevent or restrict the importation of certain goods from abroad.”).

52. Petition for Writ of Certiorari, Trump v. V.O.S. Selections, Inc., 2025 WL 373615, 29 (No. 25-250) (U.S. filed Sept. 3, 2025), cert. granted, No. 25-250, 2025 WL 123456 (U.S. Sept. 9, 2025).

53. 50 U.S.C. § 1701(a).

54. See Bradley supra note 37, at 1783.

55. Id.

56. U.S. Const. art. 1, § 8, cl. 1.; Dobson, supra note 3, at 1.

57. See, e.g., 19 U.S.C. § 1862.

58. See, e.g., Fed. Energy Admin. et al., v. Algonquin SNG, Inc., 426 U.S. 548, 559 (1976) (finding that Section 232(b) of the Trade Expansion Act does not constitute an improper delegation as it establishes clear preconditions and limitations).

59. 19 U.S.C. § 1862.

60. Id.

61. Trade Act of 1974, Pub L. No. 93-618, 88 Stat. 1978 (1974) (codified at 19 U.S.C. § 2101).