President-elect Donald Trump will likely have the authority in January to make good on his pledge to impose sweeping tariffs on all imports from Canada, Mexico and China, with legal and political challenges unlikely to swiftly rein in such action, policy and legal experts told S&P Global Commodity Insights on Nov. 26.
While the legal framework exists for Trump to impose tariffs, the potential repercussions on energy markets, international relations and domestic industries are significant, creating a complex interplay of trade policy considerations that the incoming Trump administration would need to navigate carefully.
Some Washington observers also questioned whether the announcement was actually a day-one action plan and not political posturing to force the top US trade partners into renegotiations.
In a Truth Social post late Nov. 25, Trump said he would impose a 25% tariff on all products from Mexico and Canada. The move would arguably violate the US-Mexico-Canada Agreement (USMCA) brokered in 2020. In another post, Trump said he would also subject all imports from China to an additional 10% tariff, on top of existing tariffs.
Trump could issue the tariffs through executive action, specifically utilizing the International Emergency Economic Powers Act (IEEPA) or Section 232 of the Trade Expansion Act, legal experts said. The two laws provide the president with broad authority to impose tariffs, particularly on national security grounds.
The process might differ, however, based on the target country. For China, Trump could invoke Section 307 of the Trade Act of 1974, which allows for retaliatory tariffs if he determines that China has not honored its commitments under previous trade agreements.
"So China is legally an easier case for Trump. All he has to do is declare that China did not meet the terms of the Phase One deal, which they didn't," said William Reinsch, a senior adviser at the Center for Strategic and International Studies, referring to a trade pact Trump negotiated during his first term. "And once he makes that determination, he can go ahead and impose additional tariffs under that provision of law. He'll be sued, but he's on fairly firm ground in that case."
In contrast, imposing tariffs on Canada and Mexico would be more complicated due to the USMCA, which stipulates low trade barriers. This could necessitate a more complex justification and might require Congressional approval, especially if the tariffs threaten to undermine the trade agreement.
The likely legal path here would be to declare an "international economic emergency" under the IEEPA to invoke tariff powers.
"The emergency would be the drugs and migrants coming in the country," Reinsch said, adding that legal challenges are all but certain.
Trump in his posts blamed Canada and Mexico for allowing the narcotic fentanyl and undocumented migrants to flow across their borders with the US.
Legal, Congressional pushback
Reinsch said he expects prolonged legal battles that could reach the US Supreme Court. More immediately, stakeholders affected by the tariffs, such as businesses and trade partners, would likely seek legal injunctions to block their implementation.
Courts might grapple with the extent of presidential power in declaring such an emergency, but there is a precedent for judicial deference to executive authority in such matters, Reinsch said.
Not many district judges are willing to tell the president that he is wrong and that a judge knows more than he does about emergencies threatening the country, Reinsch said. "So [Trump will] use the emergency authority. Whether it is a valid use of that authority is debatable, but I think he gets away with it."
Not all analysts agreed. Trump's unique use of the IEEPA could give some courts pause, said Stephen Kho, a partner at Akin Gump Strauss Hauer & Feld LLP, a Washington, DC, law firm.
"IEEPA has not really been used for tariff increases before. It's traditionally been used for sanctions," Kho said. "The other unique part is there's no relationship really between increasing tariffs and the fentanyl and the border issue. And there is some jurisprudence suggesting that your action and the national security issue you're going after, there has to be some sort of rational relationship between it."
Marc Busch, a professor at Georgetown University who has advised the US on trade barriers, noted that while Congress might attempt to intervene, it could be challenging to block such actions.
Allowing "unfettered use" of the IEEPA is dangerous for Congress in that it lets slide its clear powers to control federal purse strings, Busch said. "But it will be difficult in the early goings of the 119th Congress to trip up an effort along these lines, especially when framed as being about illegal immigrants and fentanyl," he said.
However, Busch emphasized that the current lack of specific details regarding Trump's tariff plans leaves much uncertainty. "We're a long way from having the details on how something like this is going to get pulled off," he said.
Reality versus leverage
"The bigger question is whether [Trump] actually intends on imposing those tariffs or just threatening them in order to secure some commitments on narcotics and/or immigration, and that's still, I think, the more likely scenario right now," said Joshua Zive, senior principal at Bracewell, a DC law and lobbying firm.
Trump's rhetoric might be a strategic move leading up to a USMCA review scheduled for 2026, said Ellen Wald, a senior fellow at the Atlantic Council Global Energy Center. Wald said that Trump often makes bold statements, but they don't always translate into concrete actions; rather, the threat of tariffs may serve as leverage to renegotiate terms.
"It doesn't mean he's suddenly going to dissolve one of the most important trade agreements that his administration negotiated last time, but it does mean that he's going to have his administration review [the USMCA] with a very critical eye, and they're not going to be pushovers about it," Wald said. "As we all know, he's certainly willing to use tariffs as a way to pressure countries to have more favorable trade agreements toward the US."
Wald added that the tariffs could reshape trade dynamics, particularly in relation to China.
Repercussions
Trump's effort to use tariffs to protect US industries and meet national security objectives could backfire, given the practical implications and political ramifications.
"Increasing tariffs does increase prices on consumers," Kho said, adding that he does not know how Trump would then keep his promise to deal with inflation.
Given energy trade across the southern and northern borders, the energy sector would be hit hard by these sorts of tariffs.
"If the US did put a 25% tariff on crude imports from USMCA neighbors, it would drive up pump prices in the Upper Midwest, since Canadian heavy sour crude exports and PADD 2 complex refiners are inextricably intertwined with few options to divert exports or substitute feedstock," said Bob McNally, president of Rapidan Energy Group. "For this reason, and to avoid upending the entire USMCA, tariffs will likely be avoided or pared back to not hit drivers' pocketbooks."
Rachel Ziemba, senior fellow at the Center for a New American Security, warned that the possibility of retaliatory trade measures from Canada and Mexico, especially under the USMCA, poses a risk of escalating tensions that could harm US industries and lead to significant diplomatic and economic repercussions.
Focusing on tariffs against allies while maintaining a tougher stance on China could complicate the US position in global trade discussions. It might also encourage other countries to seek alternative trade partnerships, potentially diminishing US influence in international trade.
"The more the US does this sort of thing, intentionally and unilaterally acting against their international obligations, I would argue, the less sort of credibility they have," Kho said.