Congress: Key to U.S. Trade Policy Stability

Congress Holds the Tariff Power It Refuses to Use

After the Supreme Court struck down Trump's IEEPA tariffs, U.S. trade policy stability now depends on whether Congress will finally reclaim its Article I authority — or keep letting presidents improvise.

On February 20, 2026, a 6-3 Supreme Court told the political branches something the Constitution has said since 1789: only Congress can lay a tariff. Four months on, the House has voted 219-211 to end one set of duties, the Senate has passed two similar resolutions, and the Grassley-Cantwell Trade Review Act still sits in the Finance Committee where it was filed in April 2025. The problem is not that Congress lacks the power. It is that Congress will not use it. Until it does, the "stability" of U.S. trade policy is a presidential mood, priced by allies at a discount and litigated one statutory box at a time.

The Court did Congress's job

Chief Justice John Roberts's opinion in Learning Resources, Inc. v. Trump is unusually blunt about which branch broke first. IEEPA — the 1977 International Emergency Economic Powers Act — does not contain the word "tariff," and its authority to "regulate…importation" cannot, the Court held, "effect a sweeping delegation" of the taxing power. Roberts anchored the ruling in the major questions doctrine, writing that the president "must identify clear statutory authority for the extraordinary delegated power he claims," a standard the administration "cannot meet" (see the slip opinion at pages 1-3 and 17-19).

The financial exposure is enormous. According to Al Jazeera, roughly $175 billion in duties collected under IEEPA are now subject to refund claims routed back to the U.S. Court of International Trade; more than 1,000 importer lawsuits were already on file the week of the ruling. In dissent, Justice Brett Kavanaugh predicted the refund process would be "a mess," and NPR's small-business reporting bears that out: Customs and Border Protection kept collecting the invalidated duties for days after the ruling and, as of late February, had offered no administrative pathway for repayment.

That mess is Congress's inheritance. As American University's Babak Hafezi told Al Jazeera, once tariff receipts have been spent, "Congress will have to determine how much is owed to importers, pass a law to fund it, and create a mechanism for repayment." Article I is not an abstraction here; it is an appropriation.

The revealed preference: Congress will not vote

The evidence that Congress prefers to complain rather than legislate is now two years deep.

Start with the Trade Review Act. Filed by Sens. Chuck Grassley (R-Iowa) and Maria Cantwell (D-Wash.) on April 3, 2025, S.1272 would force a president to notify Congress within 48 hours of any new tariff and secure a joint resolution of approval within 60 days or watch the duty expire. Grassley framed it as a return to constitutional first principles — his own release cites Article I, Section 8 in the second paragraph. The bill picked up seven Republican co-sponsors within a week. It has not moved since. GovTrack currently rates its chance of enactment at zero percent.

The resolutions that did move failed the same test in a different way. In April 2025, the Senate voted 51-48 to terminate the fentanyl national emergency Trump used to justify the Canada tariffs, with Susan Collins, Lisa Murkowski, Mitch McConnell and Rand Paul crossing over. The House sat on it. On February 12, 2026 — eight days before the Supreme Court ruled — the House itself finally voted 219-211 to revoke the same tariffs, six Republicans defecting as Trump publicly threatened their primaries. The Council on Foreign Relations' James Lindsay read the vote more precisely than most headlines did: "the more important message from yesterday's vote is not that some Republicans voted against Trump, but that 205 Republicans stood with him despite widespread doubts about the wisdom of the tariffs." No override was ever in reach.

The composite record is clear: bipartisan majorities exist to protest specific tariffs; a supermajority to constrain the tariff power itself does not.

The Section 122 clock and the Section 301 workaround

Within hours of the ruling, the administration reached into the statutory drawer and pulled out Section 122 of the Trade Act of 1974, a balance-of-payments authority that permits tariffs up to 15% for 150 days. Trump signed the 10% order the day of the decision, raised the rate to 15% the following day, and — as the BBC first noted — applied it uniformly across countries, because Section 122 requires it to be. That included partners like the U.K. and Australia that had already negotiated 10% deals. Capital Economics' Paul Ashworth told the BBC that the E.U. and Japan were, functionally, "exactly back where they were last week."

Section 122 tariffs expire on July 24, 2026 unless Congress votes to renew them. It will not. CSIS's William Reinsch, in the think tank's Summer Trade Agenda, reports that U.S. Trade Representative Jamieson Greer has floated re-invoking Section 122 for a fresh 150-day cycle rather than seeking a vote — a maneuver that would almost certainly return the question to the Court of International Trade. The Council on Foreign Relations judges an extension "extremely unlikely" with midterms approaching.

The durable pivot is Section 301. On March 11, 2026, USTR launched 16 "structural excess capacity" investigations and 60 separate forced-labor probes covering, per Brookings, the European Union, Japan, India, Mexico, South Korea, Switzerland, Norway, Vietnam, Thailand, Malaysia, Indonesia, Bangladesh, Singapore, Cambodia and China. Greer told the BBC he hoped to conclude the investigations before the Section 122 window closes. Section 301 is slower, requires an administrative record, and produces country-specific tariffs — but it is also the authority most likely to survive judicial review, because it comes with the procedural constraints IEEPA lacked.

The shift matters strategically. Brookings scholars Kari Heerman and Elena Patel argue in a June 2026 analysis that the migration from IEEPA to Sections 122, 232, and 301 is not a retreat from tariff-as-instrument but a hardening of it — "slower and procedurally constrained but…more permanent tariffs once investigations are complete." That is precisely what allies now price in.

The primary document Congress wrote for itself, and the one it hasn't

Congress's own reference service has been unusually candid about the imbalance. The Congressional Research Service's U.S. Trade Policy Primer opens with a reminder that "Congress has primary authority over U.S. trade policy through its constitutional power to levy tariffs and regulate foreign commerce." A companion CRS product, IF10156, catalogues the delegations — Sections 122, 201, 232, 301, and IEEPA — that Congress made and never trimmed. The 1962 and 1974 statutes were designed for a mid-century economy in which broad delegation lowered political cost. The revealed cost in 2026 is that the delegation has swallowed the delegator.

The bill that would begin to reverse this — S.1272 — is written narrowly and passes constitutional muster. Section 154 of its proposed amendment to the Trade Act of 1974 would require the president to include in every notification "an explanation of the reasoning for imposing or increasing the duty" and "an assessment of the potential impact…on United States businesses and consumers." No new tariff would remain in effect beyond 60 days without a joint resolution of approval. That is not radical; it is what the Court just said the Constitution requires.

The empirical case is on Cantwell's side. New York Federal Reserve research cited in BBC coverage finds that U.S. businesses and consumers are absorbing nearly 90% of additional tariff costs; the Yale Budget Lab puts the pass-through at 31%-63%. Cantwell told NPR in April 2025 that markets had shed an estimated $11 trillion in equity value amid the initial rollout. And yet the bill still has not seen a committee markup.

USMCA: the pattern in miniature

The North American pact was where Congress's abdication was supposed to matter most. On July 1, 2026, the United States declined to extend the U.S.-Mexico-Canada Agreement for another 16 years, triggering a 10-year clock of annual reviews. But — and this is the tell — the review passed with what the BBC called a "subdued" virtual meeting, because the Iran war has absorbed the White House's political oxygen and because the administration believes its Section 232 tariffs on Canadian steel, aluminum, autos and lumber (10-50%) have already "reshaped" the trilateral relationship without needing to renegotiate the text. Congress, whose 2015 Trade Promotion Authority framework was designed to give it a voice in exactly this kind of decision, was a spectator.

Brookings's post-mortem on the first review notes that the annual-review mechanism now embeds trade uncertainty in the continental economy for a decade — the opposite of what the review clause was designed to produce.

What allies see

Foreign capitals are not waiting for Congress. The BBC's economic reporting quotes exporters diversifying into European and Indo-Pacific markets to reduce U.S. exposure; the Foreign Affairs argument that opened this file — Only Congress Can Fix American Trade — makes the point that when the legislature retreats, "the laws governing presidential tariffs have not kept pace," and allies price the volatility rather than the deal. That is the strategic cost of the last two years: a U.S. trade policy that swings by executive order and is corrected only by the Court, on a delay measured in years and litigation costs measured in billions.

The Council on Foreign Relations' Edward Alden framed the counterfactual most usefully in his "vision thing" argument: absent congressional guardrails, U.S. firms cannot plan capital allocation on the horizons trade policy is supposed to enable. That is not a partisan claim. It is the reason Grassley, McConnell, Murkowski, Collins and Bacon have all, at different points, voted against their own party's president.

Diplomat View

Congress will not pass the Trade Review Act before the 2026 midterms, and probably not after them. The signal from the February 12 House vote is that even with the Court's ruling in hand and consumers absorbing 90% of tariff pass-through, only six House Republicans will defy a president of their own party on trade — a fraction of the two-thirds needed for override. The administration's Section 301 investigations, due to conclude before Section 122 expires on July 24, will replace the invalidated IEEPA tariffs with country-specific duties that survive judicial review because they follow procedure. That is the equilibrium: a president who tariffs by administrative record, a Congress that resolves in protest, a Court that polices statutory boxes. Allies will discount U.S. commitments accordingly. The forecast changes if the Court of International Trade orders large, near-term refunds that force an appropriation vote, or if a Democratic Senate in 2027 attaches Trade Review Act language to a must-pass bill. Absent one of those triggers, "stability" is what Section 301 produces after it has been litigated — not what Congress legislates.

What to watch

• July 24, 2026 — Section 122 tariff expiry. Whether the administration re-invokes the authority for a second 150-day cycle or lets it lapse will signal how much litigation risk it is willing to absorb; a re-invocation will likely be challenged within days at the CIT.
• Section 301 findings, expected by late summer 2026. USTR's excess-capacity determinations against the EU, Japan, India and Mexico will define the country-by-country tariff map that replaces the IEEPA baseline.
• Senate Finance Committee schedule, fall 2026. A markup of S.1272 — or its quiet death — is the cleanest test of whether the constitutional argument has any legislative future before the midterms.

The Bottom Line

The Supreme Court forced the reset Congress refused to legislate: the tariff power belongs to Article I, and the executive branch cannot conjure it from a 1977 emergency statute. But the reset stabilizes nothing on its own — the administration has already migrated to Section 301, allies are pricing in continued volatility, and the Grassley-Cantwell bill that would end the improvisation has sat untouched for fifteen months. Until Congress votes, U.S. trade policy is not a policy; it is a presidency.