Lenin Nolly/NurPhoto via AP
House Speaker Mike Johnson speaks during a press conference on Capitol Hill, March 25, 2025.
“The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises … [and] to regulate Commerce with Foreign Nations,” reads Article I, Section 8 of the Constitution. This would come as a surprise to anyone living through President Trump’s unilaterally imposed tariffs, which are tipping the country toward economic collapse. But it’s Congress that is the tariff-imposing body under the Constitution.
Since the 1970s, however, Congress has delegated effectively all responsibility on tariffs to the executive branch. There was never any thought that Congress would need to wrest back that control, since tariff changes (mostly downward) fit within a bipartisan consensus, and the House and Senate did have at least the ability to vote on the final outcome in trade agreements (though usually through a fast-track mechanism designed to minimize dissent).
But now we are in a very different world, where we have to wonder whether the legislature will put the brakes on our mad king.
It is safe to bet against Congress actually taking power away from a president on any matter, regardless of how urgent or necessary. That’s particularly true of the current Congress, with its slavish devotion to Trump. But given how the legislative branch has emasculated itself in almost unbroken fashion for decades, a situation where members of both parties are forced to rescue the country by taking away executive power would have huge near-term and long-term benefits.
Whether that actually happens depends primarily on Republicans, but also on whether the dormant structures inside Congress that allow a majority to work their will can still be summoned in a moment of national crisis.
THE CONGRESSIONAL RESEARCH SERVICE identifies six ways that presidents can set tariff rates, three of which require specific findings from various executive branch agencies on the basis of national security or other factors. But for the current “reciprocal” tariffs Trump imposed last week, Trump simply used the International Emergency Economic Powers Act (IEEPA), a 1977 law that allows the president to declare an emergency under the National Emergencies Act and then regulate imports based on it. This mechanism was also used to impose tariffs on China, Canada, and Mexico in February.
No other president has used the IEEPA to raise tariffs on every country in the world. It’s been a large gun sitting on the floor of the Oval Office since 1977. There are already lawsuits alleging that presidents cannot use emergency powers to address a trade deficit that has been persistent for decades. But Congress can fix this anytime it wants, by challenging and taking down the national emergency, thereby vaporizing the tariffs based on it. In fact, the Senate pulled this off successfully just last week. A resolution to terminate the national emergency with Canada passed 51-48, with four Republicans joining all Democrats.
There are two problems with this. One, the president can veto such a resolution, meaning that the real threshold for passage in the Senate is 67 votes, not 51. We’re some ways off from that. The second problem is the House of Representatives, which found a clever work-around to avert votes to cancel a national emergency.
If Congress is determined to stop the market carnage, it can change the rules to allow itself to eliminate the national emergency that’s causing it.
The reason that the Canada tariff hit the Senate floor was that resolutions challenging national emergencies are “privileged.” Under Section 202 of the National Emergencies Act, they must get a floor vote within 18 calendar days with an up-or-down vote. Indeed, the Senate resolution on the Canada emergency was introduced on March 13, and it got a vote by April 2. But in the rule setting up the continuing resolution to fund the government last month, House Speaker Mike Johnson (R-LA) quietly upended that privileged status for the House, with a rider stating that “Each day for the remainder of the first session of the 119th Congress shall not constitute a day for purposes of section 202 of the National Emergencies Act.”
This means that the entire year will only constitute one “calendar day,” so you could never get to 18 days to force a vote on a national emergency. (Yes, Congress can bend time.) So the House never has to take up the resolutions Rep. Gregory Meeks (D-NY) introduced on March 6, proposing to cancel the Canada and Mexico emergency announcements.
But this is not the end of the story. Congress today cannot bind what Congress does tomorrow. Lawmakers could issue a new rule that simply repeals the language of that old rule. Or a majority of Congress could challenge and overrule the “calendar day” provision if the House parliamentarian rules it in order. If Congress is determined to stop the market carnage, it can change the rules to allow itself to eliminate the national emergency that’s causing it.
The larger question is whether the Republican-led Congress has the will to mount this fight against their sitting president. There isn’t anything close to a two-thirds vote in Congress to take back control of tariff policy, and little desire on the part of the leadership.
There is movement, however.
SENS. MARIA CANTWELL (D-WA) and Chuck Grassley (R-IA) introduced a bill last week that would force a review process for all tariff changes made by the executive branch. The president would have to inform Congress of new tariffs within 48 hours, setting off a 60-day review. If Congress didn’t pass a resolution supporting the tariffs, they would expire. This seems like a bit of a Rube Goldberg machine, but it’s in the direction of Congress retaking control of tariff policy. And seven Republicans have signed on to the bill, giving it a working majority, though not yet enough votes to beat a filibuster. (Sen. Rand Paul of Kentucky, who voted to cancel the Canada emergency, has not signed on to the bill yet.) There’s internal organizing in the House, which probably has a majority for something reining in Trump on tariffs right now.
But on Monday, the Trump administration said it would veto the Grassley-Cantwell bill if it ever passed, and Senate Majority Leader John Thune (R-SD) used that to say he won’t give the bill a vote. That said, the privileged resolution process for canceling national emergencies is still available in the Senate. Democrats could schedule one resolution a day for each emergency—the Canada, Mexico, China “reciprocal tariff” emergencies, along with any new ones Trump proposes—and they would have to get a vote. Within a couple of weeks, there could be daily Senate votes on this, gauging the continued support of Republicans.
Each day of bad news, of evaporating 401(k) plans and higher inflation estimates and recession calls and damage to the economy, can add more votes. Loyalty to Trump has been the main animating principle of the Republican Party. But this is a unique situation where one policy is causing all the pain, and where Congress has the wherewithal to reverse it. Democrats can impose an enormous political cost on Republicans who put their fealty to Trump above the economy and the country.
That’s a Senate strategy. But the House has been a roadblock, even without a filibuster threshold to overcome. Speaker Johnson clearly sees his role as providing cover for Trump, and does not want his authority to control the House floor usurped. A strange situation last week speaks to this.
Two representatives and new moms—Democrat Brittany Pettersen of Colorado and Republican Anna Paulina Luna of Florida—wanted House members to be able to vote by proxy (by designating another member to temporarily deliver their vote) after newly becoming parents, ensuring that taking family leave doesn’t nullify voting on your constituents’ behalf. The House Republican leadership, which quickly reversed COVID proxy voting when they took over in 2023, opposed the idea, claiming that proxy voting is unconstitutional and a “slippery slope” to other exceptions to in-person voting that would harm “collegiality.” (Have they seen the House?)
So Pettersen and Luna put together a discharge petition, which sidesteps leadership and gets a bill to the floor if it draws the signatures of a majority of House members, for 12 weeks of proxy voting for new parents. They got a majority, but in an unprecedented tactic, Johnson tried to table the petition as part of the “rule” for last week’s House votes. That rule failed, as nine Republicans joined all Democrats to oppose it. Johnson responded by sending the House home for the week, determined to not allow the discharge petition to get a vote, as it would under normal circumstances.
Apparently, Luna and Johnson reached a deal for “live-dead pairing,” whereby a member unable to appear to vote in the House would find someone on the opposite side of the question to agree not to vote. But the whole convoluted mess ended with no discharge petition bill coming to the floor. The whole time, I was wondering what was so important about a proxy voting measure, and I think it may well be about a hypothetical vote on tariffs. Speaker Johnson is trying to block discharge petitions as a tactic to protect the president. In that instance, he could block a tariff change from coming to the floor even if he were in an extreme minority.
Even as Senate Banking Committee Democrats are begging for even a hearing on Trump’s tariffs and the use of the IEEPA, Republican leaders remain reluctant to offering any such opening to congressional discussion of Trump’s tariffs. But the pressure is going to mount. And it’s important to point out that Republicans could end the stress, end the economic volatility, end all this havoc with a single set of votes.
This would not only be a positive development for people’s 401(k) plans, and a way to stop Trump from using a type of economic sanction to bully the world in self-defeating ways. It would also be good for Congress to show that it can actually provide a check on this president, to inform future fights. Since Inauguration Day, Congress has stood aside as Trump has impounded funds, deleted agencies, and thumbed his nose at legislative work product. The best way to show that the president is not a king is by having the coequal branch of government prevent his seizure of congressional powers. That will have resonance long beyond this tariff squabble.
