The Foreign Commerce Power

This Article is the first to scrutinize presidential trade authority under the Constitution. The Constitution grants the President no independent power to regulate foreign commerce. That conclusion, while apparent from a straightforward reading of Articles I and II, stands in stark contrast to executive conduct of U.S. trade policy in recent years. This Article traces the roots of this constitutional distortion to a confluence of doctrinal drift and academic oversight. Courts and commentators have increasingly relied on an expansive conception of executive power grounded in a perceived general foreign affairs authority. In doing so, they have blurred the line between diplomacy and commerce and used this confluence to justify unilateral economic actions by a “trader in chief” that circumvent the Constitution’s allocation of power. These matters have reached a tipping point over the last decade, prompting a series of high-profile cases in which the government has argued that this general foreign affairs power includes some portion of the foreign commerce power. To correct this misapprehension, this Article undertakes a novel examination of Founding-era materials, including the distribution of commercial authority between the king and parliament in eighteenth-century Britain, the correspondence and deliberations of the Framers, and the Founding Generation’s implementation of the commerce power in matters of national security during the early years of the Republic. These sources reveal a consistent and deliberate understanding both that Congress’s control over foreign commerce is exclusive and that Congress’s control over commerce trumps the President’s general foreign affairs powers when the two intersect. This Article further argues that this allocation was not accidental or ancillary but central to the constitutional design.

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Introduction

In January 2025, as President Donald J. Trump assumed the presidency for a second term, one of his earliest and most consequential acts was to institute a series of economic emergency actions, relying on a familiar instrument: the tariff.[1] Since taking office, the President has issued at least twenty-three executive orders, four memoranda, and three proclamations adjusting tariff rates.[2] Although the Trump administration has defended these moves as legal and necessary for national security,[3] this presidential deployment of tariffs presents a striking departure from the constitutional architecture governing foreign commerce. That U.S. tariff rate crescendos and diminuendos are now wielded principally by the White House signals not merely a shift in practice, but a profound evolution in the understanding of federal trade authority—one that has largely escaped sustained scholarly and judicial scrutiny.[4]

This Article addresses a question that has been obscured in recent debates over trade, diplomacy, and presidential power: What are the constitutional bounds of the executive’s authority over foreign commerce? Article I, Section 8 of the Constitution unambiguously assigns to Congress the power “[t]o lay and collect . . . Duties” and “[t]o regulate Commerce with foreign Nations.”[5] These enumerated powers—collectively referred to herein as the “foreign commerce power”—represent a core component of the legislative branch’s authority. Yet in contemporary practice, the executive has come to exercise an expansive range of commercial powers: imposing tariffs, negotiating trade agreements, prohibiting certain business transactions, administering sanctions, and modifying export controls.[6] The executive branch takes many of these actions with little to no statutory authorization and only the most perfunctory gestures in the direction of congressional involvement.[7]

Through a novel review of eighteenth-century British law, constitutional drafting history, and records from the early decades of the Republic, we show how the Framers’ intent was clear: The President was not intended to have any constitutional authority to regulate foreign commerce. No drafter saw the President as the “trader in chief.”[8] No evidence from the early days of practice among the political branches suggests that the early policymakers did either.[9]

Given this clear separation, the President’s commercial acts must necessarily be based on congressional delegations. But existing statutes often do not authorize, or at best offer only tepid support for, the President’s foreign commercial policies. The President and his defenders often point instead to a presidential foreign affairs power, which they trace to Article II, as a foundation on which he can rely in whole or in part in undertaking policies that are reshaping the U.S. economy and its relationship to the rest of the world. Indeed, the prevailing justification offered by the executive branch relies on a hybridized theory, which grounds the President’s actions simultaneously in congressional delegations—delegations that often do not explicitly mention and have never been used to impose the President’s chosen instrument, such as tariffs or international agreements—and in an implied Article II general foreign affairs power. In its opening brief before the U.S. Court of Appeals for the Federal Circuit in V.O.S. Selections, Inc. v. Trump—the primary case challenging President Trump’s imposition of tariffs on imports from nearly every country under the International Emergency Economic Powers Act (IEEPA)—the government wrote, “Congress has long delegated broad tariff authority to the President to supplement the President’s Article II powers over foreign affairs. Presidents have exercised that authority across many administrations to impose tariffs that . . . protect national security, foster economic prosperity, and facilitate negotiations with foreign counterparts.”[10] This quote is among the more aggressive framings of an argument that the government regularly makes throughout foreign commerce cases: Foreign commercial delegations should be read more broadly than ordinary economic delegations in light of the President’s overlapping constitutional power over foreign affairs.[11]

Put differently, arguments about the scope of the government’s foreign commerce powers are typically contests over how broadly to read statutory delegations. And it is true that Congress has codified far-reaching delegations to the executive to manage and to administer our trade law regime.[12] Myriad statutes now on the books offer the President and executive branch agencies considerable authority to adjust U.S. trade policy.[13] But contrary to the executive branch’s position, those delegations do not combine with any perceived executive foreign affairs power to make the President’s foreign commerce powers quasi-constitutional. The government’s framing attempts to change how courts and other actors interpret foreign commerce delegations by filtering statutory interpretation through a constitutional power that does not exist. This reasoning reflects a broader jurisprudential and scholarly trend that treats foreign commerce as part of foreign affairs.[14] Such a synthesis, in which commercial regulation is increasingly subsumed within the general rubric of executive foreign relations power, as this Article contends, rests on a misreading of constitutional history, text, and structure.

Part of the problem, both in theory and in practice, is an epistemological distinction between two groups of scholars. One group considers the Commerce Clause for its reach—that is, what is it Congress can regulate inside or outside of the United States? Another group is concerned with the President’s authority over foreign policy. The former are often constitutional law scholars who focus on the Interstate Commerce Clause case law.[15] They concentrate on the substance of commerce and, if they consider the Foreign Commerce Clause at all, they extrapolate from the Interstate Commerce Clause to inform their views. The latter are foreign relations scholars who study and critique the President’s role in foreign policy.[16] These two lines of literature and styles of thinking are difficult to reconcile because they rarely speak the same language. Constitutional law scholars tend to dismiss the Foreign Commerce Clause, except when Congress seeks to regulate private activity beyond U.S. borders. Foreign relations scholars often assume that whatever the President’s foreign policy power, it encompasses activities that are commercial in nature; rarely do these scholars acknowledge that there is a Foreign Commerce Clause in Article I that could prove an exception to their Article II analyses.[17] These opposing approaches have left a gap in our collective understanding. We bring together those two conversations to cross what we see as a substantive and procedural divide that has obscured the critical legal fact that the executive branch has no power to regulate foreign commerce under the Constitution.

This Article makes three contributions. First, it corrects the prevailing misconception in both doctrine and scholarship that the President’s constitutional powers extend to foreign commerce. A careful examination of constitutional drafting history and early republican practice reveals a consensus among the Framers: Foreign commerce was a legislative power. Further, the historical record shows that the President did not gain any foreign commercial powers in situations where commercial regulation was incident to a war or other foreign diplomatic entanglement. By the eighteenth century, it was well established in Britain that only Parliament could approve tariffs or implement commercial provisions of treaties, including peace treaties—a history with which the Framers would have been familiar.[18] Debates throughout the 1780s over both the Articles of Confederation and the Constitutional Convention show an overwhelming concern that foreign commercial policy remain subject to majoritarian, if not super-majoritarian, voting to protect the diverse range of economic interests in the new nation.[19]

While the Framers acknowledged the national security implications of foreign commerce, they viewed the allocation of power as primarily an issue of federalism: Should it be the state legislatures or the federal legislature that set foreign commercial policy, and if the latter, should supermajority rules apply? The thought that a single official could set foreign commercial policy for the nation did not arise and would have been antithetical to any of the frameworks that they discussed during this period.[20] Further, the Napoleonic Wars forced the United States to confront a number of situations during the early years of the Republic in which foreign commercial policy was inextricably bound up in the general foreign policy question of whether the United States should remain neutral, engage in limited hostilities, or go to war.[21] Despite this link, Presidents from Washington to Madison deferred to Congress in establishing the rules governing foreign commerce with the European powers. The Supreme Court’s conclusion in its consolidated decision in Learning Resources, Inc. v. Trump and Trump v. V.O.S. Selections (hereinafter Learning Resources) that “the President enjoys no inherent authority to impose tariffs” because the Framers “did not vest any part of the taxing power in the Executive Branch” rests on this historical record.[22] At the same time, though, the Supreme Court expressly left open the question of whether the President might be able to impose tariffs pursuant to his constitutional warmaking powers.[23] The historical record from the years immediately after the Constitution’s ratification suggests that the answer to that question is no.

Second, this Article explains how the expansion of executive commercial power occurred through a combination of broad statutory delegations and an evolving theory of executive supremacy in foreign affairs. The latter misconstrues the reach of the President’s power based on executive practices that emerged in the twentieth century. This co-optation has had the effect of enhancing the executive’s perception of its own authority and allowing the President to invoke sweeping justifications for his global commercial actions. While this same claim might be made about foreign affairs more generally, the trend is particularly startling in foreign commerce. In other areas where twentieth-century practices accord the President a dominance inconsistent with Founding-era practices—such as the use of force and the negotiation and withdrawal of international agreements—the Constitution divides power between the President and Congress. But the Constitution vests the entirety of the federal government’s foreign commercial powers in Congress.

Third, this Article situates these developments within broader structural concerns, arguing that the erosion of the foreign commerce power’s legislative foundation poses significant risks not only for the constitutional separation of powers but also for the legitimacy of the United States’ participation in global economic governance—even beyond cross-border commercial matters. Questions about the content, reach, and scope of the foreign commerce power must urgently be addressed. While the Supreme Court’s decision in Learning Resources clarified that the President has no inherent power to impose tariffs, the Court’s decision addressed only tariffs imposed during peacetime, leaving aside both the question of tariffs imposed during wartime and broader foreign commerce issues that remain points of contention. To give only two examples: First, since the decision was issued on February 20, 2026, President Trump has relied on a different law, Section 122 of the Trade Act of 1974, to impose a 10 percent tariff on nearly all products from all countries. Two lawsuits have been filed challenging those tariffs.[24] Second, President Trump has threatened trade embargoes against U.S. allies that do not support his recent war efforts against Iran[25]—a war which has closed the Strait of Hormuz, shutting off much of the world’s oil supply and causing one of the largest commercial disruptions in the last 50 years.[26] Subsequent action to address the commercial consequences of the war may force the courts to address the relationship between the President’s warmaking powers and foreign commerce, which the Supreme Court reserved in Learning Resources. This Article fills the gap in the literature that has heretofore overlooked the constitutional history that informs these disputes.

The structure of this Article proceeds as follows. Part I surveys the existing doctrinal and scholarly treatment of the Foreign Commerce Clause, identifying the lacunae in the literature that have permitted executive overreach to flourish largely unchecked. Although the commerce clauses have been the subject of extensive judicial interpretation,[27] little attention has been devoted to the Foreign Commerce Clause as a site of separation-of-powers conflict. We review how the work that has been done sheds light on some aspects of this puzzle while obscuring others.

Part II develops the theoretical framework underpinning this inquiry. We argue that the Constitution contains no general “foreign affairs” executive power; rather, some commentators have maintained that such a power has emerged through executive practice and judicial acquiescence. We critique the reliance on “historical gloss”—by which we mean the notion that longstanding institutional practice can supplement or supplant constitutional text and the original understanding—as a foundation for executive authority over foreign commerce. The Roberts Court has exhibited skepticism toward arguments resting on historical events that contradict the understanding of the Constitution at the Founding and is unlikely to rely on historical gloss to determine the allocation of the foreign commerce power absent clear evidence from the Founding Era.

Part III comprises the Article’s core. We return to materials that guided the Framers’ thinking and draw upon originalist sources to establish that the Framers intended foreign commerce to be regulated by Congress, even when foreign entanglements and outright war are involved. The records of the Constitutional Convention and the ratification debates reveal that the primary concern animating the delegation of trade authority to Congress was the failure of the Articles of Confederation to manage interstate and international trade effectively. The presidency was largely absent from the debates surrounding trade powers, reflecting a consensus that the authority to impose tariffs and negotiate commercial terms would remain firmly within Congress’s grasp. Part III unpacks this multifaceted history and asks what “regulate commerce with foreign nations” meant in the late 1700s, demonstrating how that exercise was both a foreign affairs and legislative prerogative. We bookend this discussion of constitutional drafting with an examination of relevant eighteenth-century British and early American practices.

Part IV traces the evolution of foreign commerce authority in the nineteenth century, a period in which the executive remained largely deferential to congressional primacy in trade matters. Although Congress began to enact statutes delegating discrete authorities to the President—particularly in relation to tariff adjustments and the negotiation of reciprocal trade agreements—these measures preserved the structural understanding that foreign commerce was fundamentally a legislative domain, according to which Congress assigned tasks to the executive only where and when it saw fit. Nevertheless, this period laid the groundwork for modern confusion, as the executive’s increasing involvement in foreign affairs provided a pretext for the subsequent conflation of trade and diplomacy.

Part V examines the contemporary constitutional crisis precipitated by this shift. We document how both the Trump and Biden administrations have asserted expansive executive authority over trade matters, often grounding their claims in Article II’s foreign affairs powers. These assertions are especially evident in two domains: tariff policy and the negotiation of international economic agreements. We maintain that such practices, which have shown no sign of abating in the weeks since the Supreme Court’s decision in Learning Resources, exceed constitutional bounds and risk further entrenching a model of presidential economic unilateralism that is antithetical to the separation of powers and constitutional design.

This Article concludes by assessing the broader implications of these trends. As executive power over foreign commerce continues to expand, constitutional boundaries are being redrawn in ways that privilege expediency over accountability. The consequences extend beyond trade. In areas such as immigration and transnational regulation, the perceived elasticity of the foreign commerce power has enabled the executive to circumvent traditional checks, thereby distorting both domestic governance and international economic cooperation.

In sum, this Article urges a constitutional recalibration. The foreign commerce power is not a vestigial relic but a critical component of the Constitution’s allocation of authority. Its neglect has permitted the rise of a presidential foreign commerce power untethered from text, history, or principle. Restoring the primacy of Congress in this domain is essential not only for constitutional fidelity but for the preservation of a democratic trade policy in an era of global economic upheaval.

I. Mapping Foreign Commercial Domains

To set the stage for the Article’s historical argument concerning the scope of the foreign commerce power, this Part begins by offering an overview of how the courts and the academy have interpreted that power in the last two hundred years—and how those interpretations are overly limited relative to the foreign commerce power’s present importance. We focus in this Part on the Foreign Commerce Clause in Article I, Section 8, Clause 3.

The case law and scholarly work that have considered the Foreign Commerce Clause can be divided into two primary strands. One strand of scholarship concerns the central preoccupation of the Founders in drafting not just that language of the Constitution but also in convening the Constitutional Convention: the division of authority between the states and the federal government. Part I.A lays out this federalism-focused scholarship and related case law. A second strand examines the meaning of the words “regulate” and “commerce,” while assuming that, among the branches of the federal government, Congress is responsible for that undertaking.[28] As relevant to foreign commerce, the primary concern of this literature is the reach of congressional authority on economic matters abroad. Part I.B summarizes this “exterritoriality” canon and the relevant case law. These two Sections illustrate that in the federalism-oriented cases, plaintiffs have invoked the Clause as a sword to challenge state regulations alleged to intrude upon foreign commerce. By contrast, in the extraterritoriality cases, defendants have deployed the Clause as a shield against the application of expansive federal criminal statutes—most notably in prosecutions for sex offenses.

A third body of work touches on the Foreign Commerce Clause only incidentally, but in a way that is important to this study. This work is carried out by academics who are primarily international law scholars. Much of the trade law literature of the last several decades concentrates on the rights and obligations of governments under international law, particularly at the World Trade Organization. A small handful of international law scholars have considered U.S. domestic law as it relates to international commercial activity.[29] We examine this feature and its bugs in Part I.C.

While the literature on federalism, extraterritoriality, and international trade is useful in understanding certain aspects of the foreign commerce power, the collective work to date has offered little clarity on the executive-legislative relationship with respect to foreign commerce. The limited focus on these three strands has obfuscated any analysis on the critical question of today: What is the scope of the executive’s constitutional authority over foreign commerce?

A. Federalism

Although policing the boundaries of executive power may be the most important constitutional question of the twenty-first century regarding the foreign commerce power, the dominant question of the eighteenth century concerned policing the boundaries of federal power vis-à-vis the states. Federalism was the driving force behind the drafting of Article I of the Constitution, and arguably the primary theme at the Constitutional Convention as a general matter, which we discuss in Part II. Thus, it should come as no surprise that in the early decades of the nation, policing the line between state authority and federal power would preoccupy jurists and policymakers more than any other Commerce Clause issue.

As a result, the earliest case law on the Commerce Clause was almost exclusively about the other two elements of the Clause—interstate commerce and commerce with the Indian tribes—rather than the foreign element. Any treatment of the Foreign Commerce Clause was incidental to the other two, or in service of doctrinal theories that guided the courts with respect to the other two.[30]

During this early period, the Interstate Commerce Clause was at the center of frequent disputes—far more frequent than its sibling Foreign Commerce Clause.[31] Nevertheless, to establish the breadth of the Commerce Clause, Chief Justice Marshall—in the foundational case guiding interstate commerce jurisprudence, Gibbons v. Ogden (1824)—set out a unified theory of the Clause that allowed him to also speak to the reach of foreign commerce. Chief Justice Marshall affirmed that Congress’s power over foreign commerce “does not stop at the jurisdictional lines of the Several States.”[32] Highlighting the need for federal supremacy in foreign commerce, as well as interstate commerce, the Chief Justice interpreted the “commerce of the United States with foreign nations” as a federal power Congress could exercise “whenever the subject exists,” including within a state.[33]

Nineteenth century scholarship on the commerce power similarly reflected the dominance of the Interstate Commerce Clause and the tendency to lump the Foreign Commerce Clause into this analysis via incidental references to foreign commerce. Writing in 1887 in the first issue of the first volume of the Harvard Law Review, Louis Greeley commented that “[n]o class of cases [is] more perplexing than those involving the distinction between the power of Congress to regulate foreign or interstate commerce and the so-called police power of the States.”[34] According to Greeley, the courts had not wrestled with the Commerce Clause with any consistent principles.[35] Like the courts, Greeley never differentiates between the regulation of foreign commerce and the regulation of interstate commerce. Every reference he makes to the engagement of the states and Congress with relevant legislation treats both foreign and interstate commerce equally. And yet, all the cases he discusses are occupied almost exclusively with interstate commerce. Modern scholarship has likewise focused on interstate commerce cases.[36]

Perhaps unsurprisingly given the nature of global commerce at the time, it took several more decades before substantive questions about the regulation of commerce with foreign nations crept into the courts. By the early part of the twentieth century, cases dealing with the Foreign Commerce Clause and federalism became more common.[37] The courts began to treat foreign commerce as its own separate line of jurisprudence.[38]

Once courts began to engage with foreign commerce as a distinct constitutional question, they frequently grounded Congress’s plenary authority in the imperatives of foreign relations for a federal system. Judicial opinions emphasized the necessity of a coherent, unified national policy—one that could not be undermined by divergent state regulation. In such cases, the Foreign Commerce Clause functioned as a sword, invalidating state measures or foreclosing state claims in areas touching transnational business and trade. Board of Trustees v. United States (1933) illustrates this point. There, the Supreme Court considered whether Illinois’s regulatory regime could supersede federal tariff policy. The Court concluded that “[i]n international relations and with respect to foreign intercourse and trade the people of the United States act through a single government with unified and adequate national power,”[39] and further that “[i]t is an essential attribute of the power that it is exclusive and plenary. As an exclusive power, its exercise may not be limited, qualified, or impeded to any extent by state action.”[40] These holdings extended beyond mere preemption analysis; rather, they reflected a broader constitutional rationale—rooted in the need for a unified foreign policy—that informed the Court’s understanding of the Clause and the foreign commerce power generally.

By the latter half of the twentieth century, federalism-oriented Foreign Commerce Clause jurisprudence had evolved to address what some scholars term the “inward-looking” foreign commerce power: Congress’s authority to regulate domestic activity bearing on foreign commerce or carrying foreign commercial implications.[41] These decisions likewise embraced the view that the foreign commerce power must be construed expansively to equip the federal government to advance the country’s foreign policy agenda, including where it impacts internal policies.[42] Starting in the 1970s, the Supreme Court articulated more explicitly the proposition that the Framers intended the foreign commerce power to displace contrary state action, consistent with the idea of manifesting “one voice”:

The Framers of the Constitution thus sought to alleviate three main concerns by committing sole power to lay imposts and duties on imports in the Federal Government, with no concurrent state power: the Federal Government must speak with one voice when regulating commercial relations with foreign governments, and tariffs, which might affect foreign relations, could not be implemented by the States consistently with that exclusive power; import revenues were to be the major source of revenue of the Federal Government and should not be diverted to the States . . . .[43]

Most of these cases involve taxes imposed by states or related challenges to state action. Those defending the federal government’s exclusive prerogatives in this space rely on the foreign commerce power to overcome any claim by the state to the contrary. The most recent appearance of the “one-voice” theory of federal authority with respect to the foreign commerce power in the courts is from 1993.[44]

But federalism problems are not the most important foreign commerce problems today. More recently, scholars and the courts have asked just how far the federal government’s plenary and exclusive reach may travel abroad, as the next Section explores.

B. Extraterritoriality

Whereas the federalism-focused foreign commerce cases and literature thereon concentrate on the relationship between Congress and the states, another track of literature and judicial engagement concerning the foreign commerce power examines the reach of U.S. law abroad. These works question what Congress can regulate beyond the boundaries of the United States and the extraterritorial scope of U.S. law.[45] In these cases, which often deal with statutes where Congress has criminalized conduct occurring abroad, defendants seek to characterize those laws as beyond the scope of congressional authority and interfering with foreign sovereignty. Anthony Colangelo has referred to these laws as manifestations of Congress’s outward-looking regulatory powers.[46] Colangelo argues that while Congress may exercise expansive authority within the United States, its power to regulate conduct within foreign nations is constitutionally narrower.[47]

Congress has in recent years sought to regulate conduct abroad in myriad ways, many of which have come under scrutiny for their expansive extraterritorial reach. For example, the 2003 Prosecutorial Remedies and Other Tools to End the Exploitation of Children Today Act, which is designed to combat international child-sex tourism and which criminalizes travel abroad for the purpose of engaging in illicit sexual activity, is one such law.[48] The law also prohibits “travel[] in foreign commerce, with intent to engage in any illicit sexual conduct,” among other restrictions.[49] Other criminal statutes also seek to reach beyond U.S. borders in similar fashion.[50] Similar issues arise in intellectual property law, such as the Lanham Act.[51] The components of these extraterritorial statutes have been a subject of debate for many decades, but the Court has yet to set out a clear test for what triggers an analysis of any given law under the Foreign Commerce Clause, let alone how to evaluate a law under the Foreign Commerce Clause.[52]

With respect to the substance of the Foreign Commerce Clause as applied to these statutes, Justice Thomas has noted, writing in dissent from a denial of grant of certiorari in 2017, that the Supreme Court has never thoroughly explored the scope of the Clause with respect to its application to extraterritorial statutes, especially not with respect to those statutes that seek to regulate conduct occurring entirely outside the United States.[53] Even if the Court had done so, though, this analysis is irrelevant for understanding the allocation of power between the political branches.

In sum, while extraterritorial statutory analysis remains a significant field, it is, in effect, a distinct doctrinal domain that offers little guidance on the pressing question about executive authority. The prevailing approach taken by the courts of appeals has been expansive: permitting Congress to regulate economic activity abroad “if it has a substantial effect on this Nation’s foreign commerce.”[54] Yet these courts have not addressed the parallel inquiry as applied to the executive, leaving unresolved the scope—if any—of presidential authority in this sphere.

C.   International Trade Law

A final place where one would expect to see some treatment of the Foreign Commerce Clause is in international trade law, which is quite expressly commerce with foreign nations. Although, as the name suggests, the field is one primarily of international law, some international trade law scholars—such as ourselves—have taken up the U.S. statutory and constitutional elements that encroach or interact with international treaties, including the World Trade Organization (WTO) Agreements and free trade agreements (FTAs).[55] However, these studies only superficially address the question at hand. They do not explore how Congress’s foreign commerce power shapes the bounds of the President’s authority. They are occupied with the legal terms of the United States’s participation in international agreements and organizations, as well as, to some degree, with state regulatory actions that may encroach on U.S. obligations under these instruments.[56]

Scholarship at the intersection of international trade law and the U.S. foreign commerce power also comes up episodically. For example, at the time of the creation of the WTO, when the federal government signed the WTO Agreements and made changes to U.S. law to implement them, a wave of academic commentary examined the interplay between international and domestic law, including some studies related to the separation of powers and constitutional law.[57] This moment in time coincided with the entry into force of the North American Free Trade Agreement (NAFTA), which also triggered explorations into the relationship between congressional-executive agreements (that happened to be related to trade) and the Treaty Clause in Article II.[58]

During the first Trump administration, an upsurge of scholarship confronted the novel issues surfaced by the President’s use of expansive delegations in foreign commercial affairs, especially his imposition of sweeping new tariffs, in some cases in reliance on statutes never used for that purpose, which then faced scrutiny at the WTO.[59] The legal question at the international level was whether the U.S. actions violated WTO rules or whether the United States could legitimately rely on the so-called national security exception under those rules.[60] The scholarly works that engaged with the U.S. domestic law questions and the case law that ensued concentrated on the delegation issues posed by the statutes on which the President relied to impose tariffs as well as on the procedural and administrative law questions that the executive branch’s processes presented.[61]

Apart from these newsworthy moments in time, little attention has been paid to the intersections between international law and domestic law on these issues. Neither the case law nor the academic writing has confronted the words of the two clauses comprising Congress’s foreign commerce power nor its historical pedigree, particularly in the context of the constitutional dimensions of presidential trade regulation. Further, a theme that runs through these strands of scholarship is that any separation of powers question that could possibly arise in respect of the regulation of commerce with foreign nations is one that ought to be left to foreign affairs scholars.[62] Thus, even more recent manifestations of foreign commercial policymaking have not triggered the investigation that we take up in Part III.

***

The failure to determine the scope of the executive’s constitutional authority over foreign commerce carries significant modern implications. It leaves courts with a sparse body of precedent—particularly precedent grounded in originalist methodology—when confronting the separation of powers questions that have arisen with new urgency in the Trump era. The absence of originalist engagement with such issues tends to steer judicial reasoning away from historical and textual analysis and toward prudential considerations. Lastly, it entrenches the erroneous conflation of foreign affairs and foreign commerce, a categorical mistake that we examine next.

In Part II, we explain how the limited attention paid to the foreign commerce power sets in relief this Article’s unpacking of the scholarly and doctrinal relationship between foreign affairs and foreign commerce. We demonstrate how the foreign relations literature has failed to sufficiently disaggregate foreign commerce from its generalist examination of foreign affairs powers. While scholars have readily tackled separation of powers questions as they relate to U.S. foreign policy, they have tended to treat much of that policy as a uniform whole, without regard to the Article I references to Congress’s foreign commerce powers.

II. The Generalist Foreign Affairs Power

In this Part, we outline and critique current theories about foreign affairs powers as applied to foreign commerce. We make two main arguments, one substantive and the other methodological. The substantive point is that foreign relations law scholars have tended to treat foreign affairs powers as an undifferentiated whole, paying only lip service to the foreign commerce power. The result has been a trans-substantive foreign affairs doctrine that is detached from both the text of the Constitution and the historical practice in relation to foreign commerce. The methodological point is that a significant strand of the foreign relations law literature rests on an understanding of the role of history that departs from the current Supreme Court’s use of history. Since at least Youngstown Sheet & Tube Co. v. Sawyer (1952), the Supreme Court and scholars have emphasized the role that historical practice can play in determining the allocation of powers between the branches and thus in evaluating the legality of executive action.[63] However, the Roberts Court has largely rejected claims built solely on modern practices, preferring to focus on historical evidence that speaks to the Founders’ original understanding of the Constitution.[64] As a consequence, much of the historical practice regularly cited in support of a broad executive power, particularly in the commercial context, no longer fits within the Supreme Court’s guidance about relevant history.

The purpose of making this critique is to explain how separation of powers issues that arise in the context of foreign commerce have been overlooked. As we discussed in Part I, existing studies and case law on the foreign commerce power have not focused on separation of powers issues. Instead, when separation of powers issues come up, courts and foreign commerce scholars have turned to the literature on foreign affairs, which is consumed by separation of powers questions. At first blush, this reliance on the foreign affairs literature to answer separation of powers questions might make sense as a matter of relative competence.

Unfortunately, though, the general foreign affairs literature too often grounds its analysis in doctrines related to war and diplomatic powers—domains in which the Constitution expressly divides power between the President and Congress. Foreign commerce, by contrast, is constitutionally distinct: The text vests the entirety of that power in Congress. As a result, reasoning drawn from the broader foreign affairs context overlooks the unique treatment the Constitution gives foreign commerce. This oversight is further compounded when scholars anchor their arguments in twentieth-century practices that themselves have drifted from the Constitution’s text and its original understanding.

A. (Un)Enumerating Foreign Affairs

The U.S. Constitution does not contain any reference to a general “foreign affairs” power.[65] It instead commits certain enumerated powers to Congress and others to the President. For example, in addition to power “to lay and collect Taxes, Duties, Imposts and Excises” and “[t]o regulate Commerce with foreign Nations,” the Constitution also empowers Congress “[t]o define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations,”[66] “[t]o declare War,”[67] “[t]o raise and support Armies,” “[t]o provide and maintain a Navy,”[68] and “[t]o make Rules for the Government and Regulation of the land and naval Forces.”[69] The President, for his part, is the “Commander in Chief of the Army and Navy;”[70] has the power, “with the Advice and Consent of the Senate, to make Treaties” and “appoint Ambassadors;”[71] and has the responsibility to “receive Ambassadors” from foreign countries.[72]

This allocation of powers does not tell us nearly as much in practice as we might like to know.[73] Some of the open questions involve the interaction between Congress’s powers and the President’s. Nowhere has this interaction been sharper than war powers. When may the President commit the armed forces to combat without congressional approval, and when does the scale of a military operation become so large that it is tantamount to a “war” requiring congressional authorization? In other cases, the Constitution appears not to specify which branch exercises certain powers that clearly a government must exercise, such as the power to recognize foreign nations.[74] In still other cases, one or both branches have devised methods of conducting foreign affairs other than those contemplated in the Constitution. For instance, since the nation’s earliest days, Presidents have concluded “executive agreements”—treaties under international law that the President does not submit to the Senate for its advice and consent prior to entry into force.[75]

Perhaps surprisingly, given the wide range of issues that fall under the umbrella of foreign affairs and the Constitution’s division of authority over these issues between the President and Congress, judges, practitioners, and scholars have reached a constitutional settlement in which the executive branch dominates virtually all foreign affairs issues regardless of subject matter.[76] This executive branch dominance has multiple contributing factors. Constitutionally, executive branch lawyers and scholars have devised new theories of executive power. Scholars have identified a “residual foreign affairs power” in Article I’s vesting of the “executive power” in the President.[77] Under this theory, foreign affairs powers that are not explicitly allocated to either branch are granted to the executive via the Vesting Clause on the grounds that the concept of executive power in the eighteenth century included substantial authority over foreign affairs.[78] Some of these approaches to executive power, such as the one espoused by Saikrishna Prakash and Michael Ramsey,[79] continue to account for Congress’s enumerated powers acting as a limit on executive dominance. However, the development of the unitary executive theory—under which congressional efforts to control the internal operations of the executive branch run afoul of the President’s constitutional prerogatives—has expanded the tools executive branch lawyers have to assert constitutional freedom to act in foreign affairs.[80] At the statutory level, faced with complicated foreign policy problems to which they wished to react quickly, Presidents of both parties have “constru[ed] laws that were enacted to constrain executive authority as authorizing executive action.”[81] The structure of the executive branch, both in terms of its low internal transaction costs to decision-making, as well as its ability to proactively publicize and push for its preferred legal interpretations, creates a situation in which executive claims of power are often the default to which the other branches react.[82]

Confronted with sustained executive efforts to expand executive authority, both Congress and the courts have, in significant respects, acquiesced.[83] In Congress’s case, while it has periodically enacted statutes that aim to reclaim its place in the foreign affairs landscape, rarely has the legislature undertaken the sustained oversight necessary to ensure executive compliance with statutory limits.[84] Partisan polarization has compounded this problem, diminishing the incentives for members to constrain Presidents of their own party.[85] The judiciary has further inhibited Congress through a selective deployment of formalist and functionalist reasoning. On the formalist side, the Supreme Court has struck down mechanisms like the legislative veto that facilitated congressional supervision of foreign affairs powers, on the ground that Congress must legislate only through bicameralism and presentment.[86] But when assessing executive branch action, the courts have instead turned to functionalist considerations, holding that the executive branch’s advantages in terms of expertise, speed of decision-making, and secrecy justify its primacy in foreign affairs.[87]

These theories of constitutional and statutory interpretation typically take “foreign affairs” as the correct level of abstraction at which to analyze the allocation of power.[88] Yet, of note for our purposes here, foreign affairs cases and scholarship pay little attention to the role of Congress’s commercial powers in analyzing the distribution of foreign affairs powers. Take United States v. Curtiss-Wright Export Corp. (1936).[89] Curtiss-Wright is most famous for its statement that “the President [i]s the sole organ of the federal government in the field of international relations.”[90] As the Supreme Court itself has noted, this language is dicta because Congress had authorized the President’s action challenged in this case: “the prohibition of the sale of arms and munitions of war in the United States” to Bolivia and Paraguay.[91] Nevertheless, the Court’s statement could be interpreted to mean that the President would have had the authority, acting alone, to impose the restriction on sale. That implied assertion is remarkable given the Constitution’s explicit allocation of authority over commerce to Congress, as well as the lack of any connection between a border war involving two South American countries and any of the President’s enumerated constitutional powers.

At bottom, the general nature of the “foreign affairs” power may rest on the general nature of diplomacy, as conceived in constitutional discourse. As Jean Galbraith has discussed, “[a] core assumption of the executive branch is that the President possesses exclusive constitutional powers with respect to diplomacy.”[92] Moreover, the executive’s understanding of what constitutes diplomacy is “panoramic,” encompassing, as the Office of Legal Counsel (OLC) has put it with respect to negotiations, “any subject that has bearing on the national interest.”[93] The President’s purported exclusive control over diplomacy—a power both absent from the text of the Constitution and historically unsupported, as Galbraith explains[94]—has swallowed efforts to engage in the kind of nuanced analysis of the allocation of powers among the branches, and the specific powers being invoked by particular executive branch actions, that the Constitution’s text and its original understanding require.[95]

B. Historical Gloss of a General Foreign Affairs Power

The creation of a general foreign affairs power owes much to a historical methodology—often referred to as “historical gloss”—that takes any consistent historical practice, no matter when it emerged, as relevant for constitutional analysis. Courts have relied on this kind of methodology in deciding separation of powers cases, and it is a favorite technique of the executive branch, especially OLC, when evaluating the legality of its own practices. In terms of judicial precedent, the most prominent articulations of historical gloss come from two concurring opinions in Youngstown. Justice Frankfurter famously wrote that:

[A] systematic, unbroken, executive practice, long pursued to the knowledge of the Congress and never before questioned, engaged in by Presidents who have also sworn to uphold the Constitution, making as it were such exercise of power part of the structure of our government, may be treated as a gloss on “executive Power” vested in the President by § 1 of Art. II.[96]

Justice Jackson’s even more famous concurrence elaborates upon that statement. He postulated a three-part framework for evaluating executive branch action. When the executive branch acts with congressional authorization, it acts with “the strongest of presumptions.”[97] When the President acts against the expressed will of Congress, his power is “at its lowest ebb.”[98] But in the middle, what Jackson referred to as the “zone of twilight,” the distribution of power is uncertain and “congressional inertia, indifference or quiescence may sometimes, at least as a practical matter, enable, if not invite, measures on independent presidential responsibility.”[99] From these statements, the Supreme Court has constructed a doctrine of acquiescence, whereby congressional inaction in the face of a consistent executive practice can form the basis for a conclusion that executive branch action is lawful.[100] In this way, Justice Jackson’s Youngstown concurrence—like Curtiss-Wright, with which it is often contrasted—can invite courts and scholars to pay only lip service to the actual constitutional allocation of authority over a particular subject, focusing instead on what the President and Congress did at a particular moment in time.

Several prominent commentators, including Curtis Bradley, Trevor Morrison, and Neil Siegel have sought to provide a more theoretical foundation for what might be called the doctrine of historical gloss.[101] The key idea is that arguments about historical practice, especially between the political branches, have been prominent in scholarship, executive branch practices, and judicial decisions regarding the allocation of powers among the branches.[102] These arguments are especially important in foreign affairs, where a ream of significant twentieth century cases—including Youngstown, Curtiss-Wright, and Dames & Moore v. Regan (1981)—rely on claims about consistent historical practices in the years leading up to those disputes.[103] Significantly, though, the historical practice does not necessarily have to be located at any particular point in the nation’s history to be legally relevant. By contrast, a different approach to history known as constitutional “liquidation” prioritizes the historical practices of the Founding Era on the theory that the Founding Generation has unique insights into original meaning.[104] Historical gloss and constitutional liquidation are thus related insofar as both would give weight to a consistent historical practice emerging in the early years of the nation. But historical gloss could permit that original understanding to be varied by subsequent consistent practice, whereas the most “narrow” conception of liquidation would privilege early constitutional interpretations as “‘permanent’ expositions of constitutional meaning.”[105] As we explain in Part IV and elsewhere, the former is exactly what has occurred with the foreign commerce power.[106]

As an interpretative methodology, historical gloss has been extraordinarily important in the creation of a general foreign affairs power. Withdrawal from treaties offers a useful example. The claim that the President enjoys the power to unilaterally withdraw from treaties is based on twentieth-century practice; commentators and the Restatement (Fourth) of the Foreign Relations Law of the United States agree that prior to the twentieth century, seeking congressional consent to withdraw from international agreements was common, if not the norm.[107] But in this area as in others, consistent executive claims to foreign affairs powers, combined with internal gridlock that prevents Congress from effectively responding to executive action, has led to a steady accretion of historical precedent in favor of an expansive executive power.[108]

Historical gloss sits uncomfortably with the Roberts Court’s approach to history. The Roberts Court has frequently employed what Leah Litman has referred to as an “antinovelty” canon.[109] As she puts it, “Every Justice on the Supreme Court has joined an opinion promoting the idea that legislative novelty is evidence of a constitutional defect.”[110] The antinovelty canon has significant implications for the kinds of historical practice that are relevant to constitutional interpretation: “When the Court has used antinovelty rhetoric to invalidate a statute, it has frequently discounted recently enacted statutes as ‘not relevant,’ instead focusing on whether the statute is similar to statutes enacted in the early 1800s.”[111] In other words, historical practice after the Founding Era has not been probative of constitutional meaning in the Roberts Court’s eyes and cannot be used to vary the constitutional practices of the Founding Generation.

For example, the Roberts Court has invoked the antinovelty canon to strike down statutes that structure agencies in ways that the Court has found lack a sufficient historical pedigree. In Free Enterprise Fund v. Public Company Accounting Oversight Board (2010), the Court found that for-cause removal protections for the Public Company Accounting Oversight Board (PCAOB)—a second layer of for-cause removal after the for-cause removal provisions that apply to commissioners of the Securities and Exchange Commission—were unconstitutional.[112] In so holding, the Justices in the majority on this point concluded that “the most telling indication of the severe constitutional problem with the PCAOB is the lack of historical precedent for this entity.”[113] Since Free Enterprise Fund, both the Supreme Court and the lower courts have extended that holding to situations in which the administrative structure Congress has created has a considerably longer historical pedigree, just not one that dates to the Founding.[114] This progression has culminated in what most have understood to be the Court’s likely overruling (or at least significant limiting) of Humphrey’s Executor in Trump v. Slaughter (2025),[115] foreshadowed in an emergency order in Trump v. Wilcox (2025).[116] The result is that over a century’s worth of congressional and judicial precedent upholding the constitutionality of for-cause removal protections for independent agencies will be replaced by the Court’s original understanding that the President must be free to dismiss principal officers unless the agency has an analog from the Founding Era, as the majority concluded that the Federal Reserve does.[117]

Nor is there any doubt that the antinovelty canon applies to foreign affairs and national security issues. In Zivotofsky v. Kerry (2015), the Supreme Court struck down a congressional statute allowing U.S. citizens born in Jerusalem to have Israel listed as their place of birth on the grounds that such a statute unconstitutionally interfered with the President’s recognition power.[118] In so doing, the Court noted that, while “[o]n occasion, the President has chosen . . . to consult and coordinate with Congress . . . . the most striking thing about the history of recognition is what is absent from it: a situation like this one, where Congress has enacted a statute contrary to the President’s formal and considered statement concerning recognition.”[119] In Biden v. Nebraska (2023), the Supreme Court applied the antinovelty canon to the interpretation of the HEROES Act, a statute that authorizes the Secretary of Education to “waive or modify any statutory or regulatory provision applicable to the student financial assistance programs under title IV of the [Education Act] as the Secretary deems necessary in connection with a war or other military operation or national emergency.”[120] Despite the fact that the statute is only triggered by “war or other military operation or national emergency,” the Court concluded that because “[t]he Secretary has never previously claimed powers of this magnitude under the HEROES Act,” the Secretary lacked the authority to grant the waiver at issue in that case.[121]

***

The importance that the Supreme Court has placed on Founding Era history and its willingness to discount more recent historical practices, either because they are recent or because they are too occasional or modest in scope, calls into question much of the conventional wisdom about the foreign commerce power. The broad exercise of executive power over foreign commerce seen today did not begin to emerge until the late nineteenth century, as Part IV explains. But as we argue in Part III, this view of the foreign commerce power lacks a meaningful historical basis in the Founding Era.

As a result, contemporary reliance on the foreign affairs literature to resolve questions concerning the constitutional allocation of the foreign commerce power is often misplaced. Much of the modern scholarship gestures toward Congress’s exclusive authority over commerce, only to subsume it within a broader and largely undifferentiated conception of a general foreign affairs power. This analytical conflation is further compounded by the elevation of historical practices—many of which crystallized only in the twentieth century—into sources of constitutional meaning. But the Roberts Court’s increasing emphasis on originalist methodology gives scholars and jurists an opportunity to reassess. With that in mind, in Part III we undertake a close examination of the original understanding of the foreign commerce power, and in particular the allocation of institutional authority where questions of foreign commerce intersected with the President’s foreign affairs powers in matters of war or national security.

III. Foreign Commerce at the Founding

At the time of the Constitutional Convention, ratification, and early Republic, both the Framers and the general public agreed that the Articles of Confederation suffered from a major flaw: They did not allow the federal government to regulate commerce on behalf of the United States.[122] That flaw brought the young nation to the brink of collapse right after its fragile birth.

This Part takes a fresh look at the history leading up to the Convention, the constitutional drafts, the final text, and the historical practice in the early years of the Republic. We analyze how the Framers thought about the content and distribution of the foreign commerce power. There is little explicit discussion in the record to help the modern policymaker understand the Framers’ views on the separation of powers on this issue, but that silence does not mean that the record lacks all guidance. In Part III.A, we examine the seventeenth- and eighteenth-century British practice, with which the Framers would have been familiar, and which is often thought to provide the basis for the President’s generalist foreign affairs power. That history explicitly dealt with the distribution of the foreign commerce power between the Crown and Parliament and shows two things: first, that Parliament controlled taxation, including tariffs, and the regulation of foreign commerce, and second, that the intersection of war and peace with foreign commerce did not alter parliamentary supremacy over commerce.

Parts III.B and III.C look at the Articles of Confederation, the Constitutional Convention, and the resulting constitutional text. These sources also make clear that the foreign commerce power was viewed as a legislative power. The thought of an executive officer wielding that power is simply absent. That relative silence is the dog that didn’t bark. Coming out of the experience with the Articles of Confederation, the Framers recognized the allocation of the foreign commerce power, like the power to regulate interstate commerce, as a federalism issue. There was therefore little reason for them to discuss the separation of powers between the executive and the legislature. That is, the question they were dealing with was whether Congress or the states should have primary authority over foreign commerce, not whether Congress or the President would.

Finally, Part III.D looks at how the Founding Generation implemented the foreign commerce power during the period from roughly 1789 to 1820. In practice, the President was an important part of the foreign commerce apparatus, both because he negotiated commercial treaties with the Senate’s consent and because Congress delegated administrative power to the President. But when the President’s own constitutional powers intersected with the foreign commerce power, the historical record shows that both branches understood Congress’s commerce power to take precedence over the President’s own powers.

A. Parliamentary Control over Taxation and Commerce

Any inquiry into the original understanding of the constitutional powers to impose tariffs and regulate foreign commerce appropriately begins with eighteenth-century British practice. The general foreign affairs power claimed by the modern executive, as noted above, is often traced to the British monarch’s royal prerogative.[123] Proponents of this view contend that the Vesting Clause of Article II incorporates the monarch’s traditional powers over foreign affairs in a residual fashion: Those powers included within the royal prerogative but not expressly allocated by the Constitution pass to the President via the Vesting Clause.[124] To be sure, this claim is far from a consensus view among scholars, with many viewing Article II’s Vesting Clause as merely the power to implement (i.e., “execute”) laws passed by Congress.[125] For present purposes, this discussion accepts the “royal residuum,” and we ask whether, even on that premise, any power over foreign commerce could have passed to the President.

The answer is no. The eighteenth-century British monarch was no tariff man.[126] Tariffs are, of course, just taxes,[127] and Parliament had asserted control over taxation, including tariffs, for centuries before U.S. independence. The roots of parliamentary control over taxation go back as far as the thirteenth century, when the English nobility acted as an assembly whose consent to taxes of a non-feudal nature was necessary and sometimes withheld.[128] The early Stuart kings, particularly Charles I, attempted to claim increased executive power over taxes and especially tariffs. Since the fifteenth century, Parliament had given each successive English monarch a life grant of tonnage and poundage, a form of customs duty.[129] But when Charles I ascended the throne in 1625, the House of Commons approved tonnage and poundage for only a single year.[130] Among other predations, Charles resorted to collecting tonnage and poundage without parliamentary authority.[131] In the years that followed, parliamentary leaders cited among their list of grievances against Charles “the taking of Tonnage and Powndage without graunte from the Parliament.”[132] On June 22, 1641, Parliament made it unambiguously unlawful to collect tonnage and poundage without parliamentary consent.[133] The Glorious Revolution and the resulting Bill of Rights in 1689 further solidified parliamentary control over taxation.[134] In short, the tariff power, like the tax power of which it was part, rested squarely with Parliament. The Stuart kings’ efforts to tax and tariff without parliamentary assent led to the execution of one king (Charles I) and the overthrow of another (James II).[135]

More generally, the royal prerogative in the eighteenth century included:

whether and how to make war or peace; regulating captures and prizes of war; sending and receiving ambassadors; entering into and ending treaties and alliances; initiating and determining the content of any other foreign policy communications; [and] appointing and commissioning civil, army, and navy officers, and directing operations of the militia, army, navy, and senior civil officials . . . .[136]

Notably absent from this list is any substantive power over not only tariffs, but foreign commerce more generally. To the extent that the monarch enjoyed any power over the regulation of foreign commerce, it flowed from either his power to make treaties or his ability to make war and peace. Yet even when the monarch’s royal prerogatives over those subjects overlapped with foreign commerce, the historical record demonstrates that the royal prerogatives to make treaties and to declare war and peace did not limit parliamentary control over commerce when the two intersected.

The best example of this primacy is the saga of the 1713 Peace of Utrecht, which ended the War of the Spanish Succession—the first major pan-European war of the eighteenth century.[137] As backdrop, the British system of treaty-making has long followed a dualist model.[138] While the power to make treaties falls within the royal prerogative, treaties cannot have domestic legal effect in Britain unless Parliament enacts any necessary laws.[139] In effect, the monarch controlled Britain’s international legal obligations, but the monarch lacked the authority to give those international obligations domestic legal effect unless Parliament so legislated.[140]

The Peace of Utrecht comprised a series of treaties among the belligerent powers. Among those, Britain and France concluded a treaty of peace and friendship to end hostilities, as well as a related treaty of commerce. While it was generally accepted that the peace treaty itself fell within the royal prerogative “and so could be presented to Parliament as a fait accompli, implementation of the commerce treaty’s principal provisions required legislation.”[141] More specifically, articles 8 and 9 of the commerce treaty would have extended most-favored-nation status to France and would have eliminated the increased duties that Britain had imposed on France over the course of the preceding decades.[142] The House of Commons rejected that legislation on June 18, 1713.[143] As a consequence, the British government was unable to ratify those central provisions of the treaty.[144]

The Commons vote came on the heels of two competing trends. First, British commercial interests, in particular the wool and wine industries, opposed the commerce treaty because it would expose them to French competition that would ultimately undermine British commercial interests.[145] The second was the government’s own assessment of Britain’s geopolitical interests. Those interests were twofold. The government, of course, was using the commerce treaty as part of an inducement to end the war with France. But by liberalizing trade with France, the government also sought an advantage over the Netherlands, which it viewed as its chief economic rival.[146] The vote on the commerce treaty thus pitted the executive’s assertion of foreign affairs imperatives against the domestic economic interests impacted by the regulation of foreign commerce.

The parliamentary vote against the bill to implement the commerce treaty thus stands for two propositions. First, parliamentary control of commerce prevailed over royal or governmental powers concerning treaties, war, and peace. That the commerce treaty was closely tied to both the end of a war and broader British foreign policy objectives did not diminish parliamentary control over foreign commerce. Second, both politically and legally, the eighteenth-century British citizen and politician understood that domestic economic interests could take precedence over foreign policy concerns where Parliament so determined. In short, the royal prerogative could not intrude upon parliamentary authority in matters of commerce. Where foreign affairs and foreign commerce were in tension, it was Parliament, not the monarch or government, that held the final authority to determine the proper ordering of those priorities.

B. A Confederation Without Coordinated Commerce

Given the British tradition of parliamentary control of commerce, even when Parliament’s regulation of commerce intersected with the Crown’s administration of foreign policy, legislative primacy in matters of commerce was the starting point for the American Republic. The question for the new nation was not whether an executive should have a say over foreign commerce; the issue was whether that power should reside in the federal or state legislature(s).

The Articles of Confederation addressed this problem. The Articles explicitly gave the federal Congress the authority to enter into treaties “provided that no treaty of commerce shall be made whereby the legislative power of the respective states shall be restrained from imposing such imposts and duties on foreigners as their own people are subjected to, or from prohibiting the exportation or importation of any species of goods or commodities whatsoever.”[147] The Articles prohibited states from imposing duties in violation of treaties made or “already proposed” by Congress with France and Spain,[148] but also required that any treaties be ratified by nine states before coming into force.[149] In short, the power to regulate foreign commerce and set duties on imports was primarily an issue for the states, with Congress playing a secondary role largely limited by state prerogatives.[150]

This arrangement quickly became untenable for managing the states’ effective cooperation, revenue collection, and unity. In particular, there were insufficient funds for an army and insufficient funds to command respect on the world stage.[151] George Washington complained that it was impossible to make commercial treaties under the Articles of Confederation.[152] John Jay argued that the conflicting commercial interests of the North and South would lead to separate treaties with foreign powers and make them satellite states to European powers.[153] Madison realized that, for the economy to function, the regulation of commerce had to be under a single authority.[154]

More generally, under the Articles, Congress did not have sufficient power over foreign commerce to enable the national government to credibly engage with other nations.[155] During this time, nearly all the colonies enacted their own trade laws with different motivations among them. In the 1780s, there were extensive difficulties in regulating tariffs across those different states in relation to the federal government’s needs. These related in part to revenue but also to formulating a national response to the foreign commercial policies of other nations.[156]

For instance, in 1783, the British excluded American ships from the British West Indies.[157] Virginia wanted to retaliate, and its legislature voted to authorize Congress to do so by prohibiting imports from the British West Indies.[158] The need for the support of the other states themselves, however, doomed Virginia’s proposal.[159]

Calls for centralizing the foreign commerce power did not involve the creation of a central executive to manage foreign commerce. Rather, the difficulties under the Articles of Confederation prompted calls to transfer control over foreign commerce to Congress. St. George Tucker, an American officer during the Revolutionary War and later a law professor at William and Mary, wrote that the failure of Virginia’s proposal was seen as evidence of “the propriety of investing congress with power over” foreign commerce.[160] In 1784, Congress appointed a committee to examine possible amendments to the Articles of Confederation, specifically with respect to the allocation of the commerce power.[161] Future President James Monroe led the committee, which in 1785 recommended that Congress have “‘the sole and exclusive’ authority of ‘regulating trade of the States, as well with foreign nations, as with each other, and of laying such imposts and duties upon imports and exports as might be necessary for the purpose.’”[162] The report did not go anywhere at the time, in part due to regional differences over commercial policy.[163]

But momentum for granting Congress authority over commerce was building. Alexander Hamilton, Thomas Jefferson, and James Madison in particular became strong advocates for reform and ultimately important designers of Congress’s foreign commerce powers. Nor was there any doubt that the Framers understood that congressional primacy over foreign commerce involved primary responsibility for an issue central to diplomacy and national security. Reflecting on that period several decades later, James Madison wrote that if the federal government had not developed the power to regulate foreign commerce, the American people would “present the solitary and strange spectacle of a nation disarming itself of a power exercised by every nation as a shield against the effect of the power as used by other nations.”[164] During the subsequent ratification debates, Hugh Williamson described the relationship between the authority to regulate commerce and national security even more bluntly: Because of its inability to make commercial treaties and regulate trade consistently, the United States had become “the prey of every nation . . . like a dark cloud, without cohesion or firmness . . . ready to be torn asunder and scattered abroad by every breeze of external violence, or internal commotion.”[165] Even those opposed to ratification agreed that “[w]e were suffering from the restrictions of foreign nations, who had shackled our commerce, while we were unable to retaliate: and all now agreed that it would be advantageous to the union to enlarge the powers of Congress; that they should be enabled in the amplest manner to regulate commerce.”[166] As St. George Tucker put it, “[N]o opposition was ever made, to these branches of the authority of congress, when the question respecting the adoption of the constitution of the United States was agitated.”[167]

The topic of foreign commerce thus became a uniting force for delegates to the Constitutional Convention, regardless of their otherwise disparate positions on questions of federalism and separation of powers. Rufus King reported in his Convention notes for June 16, 1787, that “[e]very one is impressed with the idea of a general regulation of trade and commerce. Can congress do this?”[168] Constitution skeptic Roger Sherman included it in the “few” authorities that he thought the new federal government should possess.[169] Alexander Hamilton similarly enshrined it as one of the four “principal purposes” of the federal government in The Federalist No. 23.[170] During the ratification debates, William Bingham posited that the proposed power over foreign and domestic commerce would attract even critics to the federalist cause.[171] In short, granting Congress control of foreign commerce—including its diplomatic and national security dimensions—became an animating purpose of the Constitutional Convention.

C. The Debate, Drafts, and the Text

Debates at the Constitutional Convention picked up where concerns with the Articles of Confederation left off. While there was a consensus that Congress should be given power over foreign commerce, the debates evidenced concern that the way in which Congress exercised that power should reflect the broad range of the new nation’s economic interests. No single actor or faction should be able to dictate foreign commercial policy.

Much of the debate at the Convention focused on crafting a compromise between Southern and Northern states around the regulation of commerce.[172] In 1787, Madison, in a letter to Jefferson, wrote that the question of congressional power over trade could be disaggregated among power over exports, power over imports, and power over enslaved people.[173] While primarily about federalism, these debates still helpfully reflect some of the content that the drafters sought to include in their definition of “commerce.” Madison recounts how some delegates sought to give Congress “unlimited power” over all these subjects: Some sought a qualification of power excepting exports and enslaved people; some wanted to exempt exports alone; and some demanded a two-thirds majority in both houses over the commerce power.[174]

Specifically, South Carolina delegate, Charles Pinckney, proposed that any legislation related to commerce should have a two-thirds majority vote to pass.[175] This position was tied to the southern states’ desire for free trade, low shipping costs, and legal protection of slaveholding and slave trafficking.[176] However, Pinckney was not successful, as the proposal was vigorously opposed by Alexander Hamilton, James Madison, and delegates from Pennsylvania and Massachusetts.[177] That being said, the proponents of supermajority protections for state commercial interests did prevail in another clause relevant to commerce: Article II’s Treaty Clause, which requires the consent of two-thirds of the Senate.[178]

As Delahunty writes, “[t]he debate at the Philadelphia Convention [was] over whether a bare majority or a supermajority of each House was required to enact foreign commerce regulations[, which] demonstrates that the Framers intended such regulation to be made by a legislative body, rather than an executive or judicial one.”[179] In modern separation of powers terms, the issue was an intra-branch issue over how easy it should be for the legislature to regulate commerce. There was no interbranch debate about the President’s role. Indeed, presidential power over commerce would have been inconsistent with the Framers’ general concern that the commerce power should be exercised in a way that reflected the nation’s diversity of economic interests.

With respect to the substance of the power, the earliest proposed drafts stated that Congress would have “the exclusive Power of regulating Trade and levying Imposts.”[180] Shortly thereafter, subsequent drafts separated the revenue provisions from the rest of trade. For example, the New Jersey Amendments of June 15, 1787, gave Congress power to pass acts for raising revenue “by levying a duty or duties on all goods or merchandizes of foreign growth or manufacture imported into any part of the U. States.”[181] The draft also empowered Congress “to pass Acts for the regulation of trade & commerce . . . with foreign nations as with each other.”[182]

Later drafts ultimately separated the power to tax and regulate foreign commerce into two clauses, a distinction preserved in the final text.[183] The word “trade” was also dropped in those revisions.[184] By August 1787, the language “to regulate Commerce with foreign nations, and among the several states” was adopted without objection.[185]

The result was three clauses relevant to our understanding of the power over foreign commerce: the Tariff Clause in Article I, Section 8, Clause 1; the Foreign Commerce Clause in Article I, Section 8, Clause 3; and the Treaty Clause in Article II, Section 2, Clause 2. Notably, in the debates and records of the Constitutional Convention, the Framers made no mention of any executive role in Clause 1 and 3 of Article I, Section 8.[186] To understand the implications of that silence, it is necessary to return to the text and the historical meaning of its key terms. What did the phrases “to regulate,” “commerce,” and “with foreign nations” signify to the drafters? And what constitutional authority did they intend to confer through the Foreign Commerce Clause? The answers illuminate the scope of legislative authority and, by negative implication, the constitutional limits on the executive.

Crucially, the constitutional text disaggregates the foreign commerce power into two provisions: the Tariff Clause and the Foreign Commerce Clause. As noted above, these powers were conceptually and functionally united in the Framers’ earlier drafts, but the Framers later separated them. Contemporary understanding treated tariffs as paradigmatic instruments of foreign commerce regulation. The Framers may have only formally separated them to clarify Congress’s revenue-generating powers.[187] Nevertheless, to avoid surplusage, the distinction must mean that the two—Congress’s power to impose duties and Congress’s power to regulate commerce with foreign nations—are not entirely coterminous. This reading is important in thinking about Congress’s subsequent delegations to the executive branch, to which we return in Part V.

What, then, did the Framers intend by granting Congress the power “to regulate Commerce with foreign Nations”? A closer textual and historical examination of the Clause’s constituent terms—“commerce,” “regulate,” and “with foreign nations”—offers clarity. Modern scholarship has helped reconstruct the Clause’s original meaning. In his important work on the Commerce Clause, Randy Barnett demonstrates that the term “commerce” was used with remarkable consistency throughout the Founding Era to denote “exchange” or “trade”—as distinct from production or agriculture.[188] Contemporary dictionaries and the writings of the Framers confirm that “commerce” was broadly understood as economic intercourse.[189] James Madison himself noted the interchangeability of “trade” and “commerce” in both public discourse and formal writings.[190] On this view, the regulation of commerce with foreign nations would naturally include laws governing the importation and exportation of goods, the terms of navigation, and the conditions under which mercantile enterprises operated.

Albert Abel similarly identified three principal categories encompassed within the concept of foreign commerce: the fiscal regulation of imports and exports (i.e., duties), rules governing navigation, and the structure of mercantile enterprises.[191] According to Abel, historical evidence suggests that these domains were the only ones widely regarded as falling within the scope of the Commerce Clause at the time of its ratification.[192] To this, other commentators have added contemporaneous concerns over industry protection.[193] Economic nationalism, particularly in the form of nascent protectionist measures, animated much of the Founders’ trade thinking. Legislative attention to “unemployed sailors, shipwrights, and iron workers” reflected less of a concern for the welfare of individuals in those trades and more of a broader ambition to fortify domestic industries vulnerable to British competition.[194] In this light, the Clause was a flexible tool designed to empower Congress to respond to foreign economic threats, including, when necessary, through retaliatory measures.[195] As Madison would later note, the regulation of commerce was instrumental to advancing American industry and ensuring reciprocal treatment abroad.[196]

The final textual element—“with foreign Nations”—is particularly revealing. It confirmed that the Framers understood Congress to play an integral role in shaping the nation’s commercial diplomacy. Far from relegating international economic policy to the executive branch, the Constitution assigned Congress a central role in policing “extranational traffic.”[197] While the executive would enforce these policies, the legislature would define them. Congress was vested with the power to engage the world through commercial regulation, exercising sovereign judgment over both domestic and international economic ordering. This understanding underscores a broader constitutional logic: The power to regulate foreign commerce was not merely ancillary to fiscal policy but a cornerstone of the new nation’s international authority. Insofar as the executive now claims independent power to determine trade policy, such assertions stand at odds with the history, drafts, final text, and design of the Constitution.

D. The Post-Ratification Practices of the Founding Generation

Because our interest lies chiefly with determining whether the executive branch can claim any constitutional power over foreign commerce—particularly when there is a tension between Congress and the President’s foreign affairs powers—our examination of the Republic’s early years focuses on episodes where the President’s Article II powers intersected with Congress’s Article I authority. This overlap arose in two ways. First, the President, acting with the Senate’s advice and consent, could employ the treaty power to make commercial treaties that narrowed the practical significance of Congress’s foreign commerce powers. Second, the question arose as to whether the President’s other constitutional authorities in foreign affairs, particularly in periods of international armed conflict, might take precedence over Congress’s authority to regulate commerce during such times.

As one of us has observed, in the Republic’s earliest days, as a practical matter “[n]either branch of government had a clear monopoly as both worked to create alliances and revenue for the newly independent United States.”[198] After the Constitution’s ratification, one of Congress’s first acts was to establish a tariff schedule and create a customs agency to implement it.[199] For its part, the executive branch negotiated treaties of friendship, navigation, and commerce with several nations.[200] Those agreements conferred on treaty partners special trading privileges, especially with regard to tariffs.[201] Through the advice and consent process, the President and the Senate jointly fashioned trading rules that supplemented the statutory framework enacted by the full Congress.[202] Yet, as one historian noted, during these years there already existed a “perennial anxiety” that “a president could transform his diplomatic authority into a virtual power to legislate” with the tariff “topp[ing] th[e] list” of potential problem areas.[203] This concern suggests that, although responsibility for foreign commerce was in practice shared, the Founding Generation understood that the treaty power was the primary constitutional vehicle through which the President could exert influence over the regulation of foreign commerce.[204]

In the early years of the Republic, the question of whether the President and the Senate could use treaties to set tariff rates and establish other commercial regulations without the ordinary participation of the House, was as much an intra-branch issue as an interbranch one. The Jay Treaty (1794) with Great Britain, the Embargo Act of 1807, and the Nonintercourse Act of 1809 were pivotal in determining the boundaries between the treaty-making power and congressional authority to regulate foreign commerce. Much of that debate took place in Congress itself, rather than in the courts. The Federalists generally took the position that Congress’s authority to regulate commerce did not give Congress the power to approve commercial treaties. Jeremiah Smith (Federalist – N.H.) asserted:

When it is said that Congress shall have the power to do certain things, for example, to regulate commerce with foreign nations, it means no more than this, that Congress shall have all Legislative power over this subject, not the entire power over foreign commerce is given to Congress.[205]

On the other hand, the Democratic Republicans held that it was the duty of Congress to assess the constitutionality of treaties made by the President through their Commerce Clause authority. William Lyman (Democratic Republican – Mass.) expounded that:

The present question . . . was not, whether the House should make Treaties, but whether the President and Senate should make laws; all the power contended for on the part of the House was the power of self-preservation; it was a repelling power, a power to prevent the President and Senate, under the color of making Treaties, from making all the laws.[206]

Although the House eventually stood down from blocking the Jay Treaty, the principles behind congressional authority to approve commerce treaties were sufficiently unsettled that, in 1816, a standoff between the House and Senate occurred over another commercial treaty with Great Britain. This too ended in a retreat for the House, but not a total surrender of its foreign commerce power over commercial treaties.[207]

The other way the President’s constitutional powers implicated foreign commerce was when commercial issues intersected with the President’s foreign affairs powers. European wars sparked by the French Revolution caused an episode in which the President’s power over foreign affairs and Congress’s power over commerce were put to the test. In April 1793, President Washington issued his famous Neutrality Proclamation, which, in part and as relevant here, prohibited “carrying to any [of the belligerent nations] those articles which are deemed contraband by the modern usage of nations.”[208] This limitation was a response to reports that Great Britain intended to close French ports to U.S. commerce.[209] The question was thus how the United States should respond. Secretary of State Thomas Jefferson hoped that the United States would respond by closing U.S. ports to exports from nations participating in the blockade of France.[210] As the name suggests, the proclamation ultimately adopted a more evenhanded approach.

The constitutionality of the Neutrality Proclamation was the subject of an exchange of essays in 1793 by Alexander Hamilton (writing as Pacificus) and James Madison (writing as Helvidius). Hamilton’s essays defending the proclamation almost completely overlooked the issue of commerce within the broader foreign affairs framing. His first essay, which most directly took on the constitutional question, advanced the now-familiar argument that Article II vests the President with “the executive power” while Article I vests Congress only with the “legislative powers herein granted.”[211] Hamilton argued that the executive power thus included powers related to war and peace that were “subject only to the exceptions and qu[a]lifications” in the Constitution.[212] Those qualifications, he thought, were the Senate’s role in treaty-making and appointments, and Congress’s power “to declare war, and grant letters of marque and reprisal.”[213] Moreover, Hamilton argued that it was for the President, as the organ of the United States in foreign affairs, to interpret the treaties of the United States and implement them.[214]

The main thrust of Madison’s response was to push back against the expansive characterization of executive power and, more specifically, to argue that some of the powers that Hamilton characterized as “executive”—such as treaty-making and declaring war—were better characterized as legislative powers.[215] Throughout the essays, Madison made clear that he was primarily concerned with war powers, implicitly viewing declarations of neutrality as the flipside of the power to declare war.[216]

Notably, although both Hamilton and Madison discussed the division of foreign affairs powers between the political branches extensively, neither discussed Congress’s power to regulate foreign commerce as relevant to that division. Hamilton, for instance, did not list the power to regulate foreign commerce and impose tariffs as an exception to the executive power—although it is naturally encompassed in the “exceptions and qualifications” to, or limitations on, executive power in the Constitution. At the same time, there is no doubt that he understood that the Neutrality Proclamation affected a regulation of commerce. In one of his later essays, he justified the timing of the proclamation—coming only after Britain entered a war that Prussia and Austria were already fighting with France—as necessary given the threat the British (as well as the Dutch and Spanish) navies posed to U.S. commerce and the need of U.S. merchants to know how the United States would respond to the threat.[217] Likewise, Madison recognized the connection between the Neutrality Proclamation and commerce with France, but he limited his legal analysis primarily to powers over war, peace, and treaty interpretation.[218]

Prakash and Ramsey offer an explanation for why this debate overlooked the foreign commerce power. As they explain, the question Washington (and thus Hamilton and Madison) faced was whether it was constitutional for the President “to publicly pronounce the views and goals of the United States . . . on international matters, even though that policy might contradict or go beyond existing laws.”[219] Critically, though, “the President’s policy statement, of itself, was not binding” except on those working in the executive branch.[220] Debates over the constitutionality of the Neutrality Proclamation thus had little to do with the President’s ability to make law, including with respect to the regulation of commerce. Prakash and Ramsey argue that the Pacificus–Helvidius debate is properly understood as “turn[ing] on the (fairly academic) question of whether the President could by his declaration bind Congress’s subsequent ability to decide to enter the war.”[221] The President’s ability to enforce his Proclamation was limited to those constitutional and statutory tools otherwise available to him. Until Congress enacted the Neutrality Act of 1794, as well as two statutes imposing or authorizing embargoes in March and June of 1794, Washington only enforced his policy using diplomacy, persuasion, and prosecutions under existing criminal laws, the last of which were widely viewed as constitutionally suspect.[222]

Nor did these statutes ratify a broad view of presidential power. To be sure, with respect to foreign commerce, the June 1794 Embargo Authorization Act authorized the President to impose an embargo “whenever, in his opinion, the public safety shall so require.” [223] This was a broad predicate that foreshadowed later delegations predicated on executive branch policy determinations. But Congress limited the President’s power significantly in another way. It provided that “[t]he authority aforesaid shall not be exercised, while the Congress of the United States shall be in session” and that any presidential embargo would automatically expire fifteen days after Congress reconvened.[224]

In other words, the neutrality episode demonstrates a President who recognized that he could not create binding U.S. law, including regarding foreign commerce with belligerents, and a Congress that reserved for itself that power, delegating to the President the power to act only in its absence. As Prakash and Ramsey put it, “[T]he executive power did not extend to the creation of obligations under domestic law, and thus the domestic legal system could not be invoked to enforce a unilateral presidential policy having no other basis in law.”[225] Where lawmaking regarding foreign commerce was concerned, the President’s constitutional powers yielded to Congress’s.[226] Thus, the Neutrality Proclamation, which has long been a seminal artifact in thinking about the relationship between the allocation of foreign affairs powers across the branches,[227] is properly understood as endorsing congressional supremacy where domestic lawmaking is concerned. Washington did not assert that his proclamation had any independent legal force outside of the executive branch, and while Congress eventually endorsed Washington’s policy, it was Congress’s action that ultimately provided the legal basis for the policy.[228]

Still, one might wonder whether the Founding Generation thought the answer was the same where the President’s enumerated foreign affairs powers, such as the commander-in-chief power, were implicated. Which branch prevailed when the President wished to give an order to or defend the military and Congress had not legislated or legislated to the contrary? The Founding Generation’s answer was that Congress prevailed. At least three examples demonstrate congressional primacy. The first is the Supreme Court’s decision in Little v. Barreme (1804).[229] That decision arose during the context of the Quasi-War between France and the United States from 1798 to 1800. During the conflict, Congress annually passed statutes that aimed to cut off commercial relations with France.[230] The 1799 statute authorized the President to seize any vessel that, upon a search, was determined to be “bound or sailing to any port or place within the territory of the French Republic or her dependencies.”[231] The Secretary of the Navy, however, ordered naval captains to seize ships sailing to or from a French port.[232] Captain Little of the Boston seized the Flying Fish, a Danish vessel sailing from a French port and sailed it to Boston, where it was condemned as a prize. The question the Supreme Court faced was whether Captain Little could seek shelter from liability because he was following military orders, even though those orders conflicted with the terms of Congress’s statute. Writing for the Court, Chief Justice Marshall held that Captain Little could not escape liability. The terms imposed by Congress took precedence over military orders, even when those orders were followed in good faith.[233]

Understood as a case about the respective war powers of the political branches, Little v. Barreme has sometimes puzzled commentators. But as Sindak argues, the better understanding of the episode is that Congress prevailed because the question was one of foreign commerce.[234] The statute at issue regulated commerce with France, and while it authorized the President to use the military to enforce Congress’s commercial rules, the fact that Congress had acted pursuant to the Foreign Commerce Clause meant that it acted in an area in which the executive branch lacked constitutional authority.

Practice during the first decade of the eighteenth century further confirmed congressional control of commerce during hostilities. In particular, it was unclear whether the President had the authority to lay down an embargo as a matter of war and national security, or if Congress had the authority through its taxation power or through the regulation of commerce.[235] During the Napoleonic Wars, as Britain and France targeted U.S. commercial vessels, the Jefferson administration looked to Congress to impose embargoes. It was the Embargo Act of 1807 that finally brought the Foreign Commerce Clause squarely into the courts in United States v. The William (1808). The Embargo Act itself illustrates congressional primacy even where matters of foreign affairs were concerned. In the Act, Congress itself directly imposed an embargo “on all ships and vessels in the ports and places within the limits or jurisdiction of the United States.”[236] The President was charged with enforcing the embargo and given the ability to make exceptions, but the act leaves no doubt that Congress itself chose and enacted the United States’ policy.[237] Indeed, when the initial embargo proved liable to evasion, Congress itself passed two supplementary acts, rather than rely only on the enforcement authority delegated to the President.[238] The first act required fishing vessels to post a bond guaranteeing that they would not be conduits for evading the embargo, and the second prohibited export by sea or land.[239]

The William was a vessel seized by the government for allegedly participating in a smuggling operation in violation of the embargo. The ship owners challenged the constitutionality of the embargo on the grounds that the Constitution did not empower Congress “to enact laws, so general and so unlimited, relative to commercial intercourse with foreign nations, as those now under consideration.”[240] The District Court of Massachusetts rejected this argument and held that

the power to regulate commerce is not to be confined to the adoption of measures, exclusively beneficial to commerce itself, or tending to its advancement; but, in our national system, as in all modern sovereignties, it is also to be considered as an instrument for other purposes of general policy and interest.[241]

In other words, Congress’s commerce powers extended to regulating commerce during military conflicts.[242]

The final set of examples involves the imposition of embargoes on trade with Britain in the lead up to and during the War of 1812 under Presidents Jefferson and Madison. The Embargo Act of 1807 applied generally to all nations.[243] In the last days of his administration, President Jefferson signed the Nonintercourse Act of 1809.[244] The Nonintercourse Act did three notable things. First, it ostensibly narrowed the embargo to apply only to Britain and France and provided that it would expire at the end of Congress’s next session.[245] Second, it authorized the President to lift the embargoes on Britain and France if they stopped targeting U.S. vessels.[246] Third, it repealed the Embargo Act of 1807 in two stages: Beginning in March 1809, it permitted U.S.-owned vessels to resume exports to non-embargoed countries, and it repealed the general embargo on foreign-owned vessels effective from the next Congress.[247]

The Madison administration’s effort to stay within its delegated authority was evident from its reaction to the way Congress wrote the repeal provisions of the 1809 Act, even if it interpreted its discretion liberally. Upon taking office, President Madison, after receiving assurances that Britain would stop targeting U.S. vessels, was determined to lift the embargo against Britain, pursuant to his delegated authority under Section 11 of the Act.[248] This created an awkward situation. Although the 1809 Act repealed the 1807 general embargo, it delayed the effectiveness of the repeal with respect to foreign nations other than Britain and France until the next session of Congress.[249] Albert Gallatin, the Treasury Secretary, noted that this arrangement created a situation in which British shipping, the primary concern of the 1809 Act, would be treated better than the shipping from nations with whom Congress was not concerned but who remained subject to the 1807 embargo for two more years.[250] In a message to Congress, Gallatin described this state of affairs and noted that executive discretion to correct it would be “consistent with the presumed intention of the Legislature.”[251] While acknowledging congressional supremacy on the issue, he also “submit[ted] the propriety of acting immediately on the subject [i.e., of allowing ships from friendly nations to depart U.S. ports in trade], and without waiting for a decision on the more complex modifications of the non-intercourse act which the late change in our foreign relations may render necessary.”[252]

But if Gallatin pushed the limits of executive discretion in the administration of the Embargo Act, Madison ultimately acknowledged congressional primacy. In August 1809, after the British went back on a promise to cease targeting U.S. vessels, Madison revoked the repeal of the embargo that he had previously authorized under the 1809 Act.[253] In the years leading up to the War and after it began, Madison asked Congress to authorize embargoes when he felt they would be useful. The most significant such request came in July 1813, when Madison requested a general embargo of British goods, a measure that Congress ultimately enacted in December 1813.[254] When Napoleon was defeated in 1814, undermining what efficacy the embargo might have had, Madison again turned to Congress to repeal it. Madison remained, in other words, deferential to Congress’s ultimate authority to regulate commerce, even in times of war.

The lesson to be drawn from the embargo acts is that, even though it involved the suspension of commerce in response to predations against U.S. ships by France and Britain, the President acted purely as an agent of Congress. The embargoes were imposed by Congress and the power exercised by the President was purely delegated authority, notwithstanding the context. Nor did the President’s delegated authority involve policy determinations. Rather, Congress authorized the President to make exceptions to its congressionally determined policy, and Congress made contingent choices as to when the embargo should be lifted. The President was charged with determining the factual predicate upon which Congress’s will depended, but, as the Supreme Court recognized, it was Congress “exercis[ing] its discretion in reviving” a previously imposed embargo, notwithstanding the President’s fact-finding role.[255]

***

The original history of the foreign commerce power—both the power to tax imports and to regulate foreign commerce—is one of legislative supremacy. That legislative supremacy was hard won and well-established in eighteenth century Britain and applied even to commercial regulations linked to the resolution of major conflicts. Bookending the Founding Era, Jefferson, Madison, and John Marshall each acknowledged that executive power over foreign affairs, and in particular military conflicts, did not override Congress’s explicit regulation of foreign commerce. When the President’s foreign affairs powers intersected with Congress’s foreign commerce powers, the latter prevailed as a matter of constitutional law. As a matter of practice, though, the President enjoyed some degree of deference from Congress when he sought foreign commercial legislation, as demonstrated by the Jeffersonian and Madisonian embargoes. That degree of deference would, as we explain in the next Part, grow over time.

IV. The Rise of the Trader in Chief

The preceding Part established that the Constitution’s design—confirmed by both the records of the Constitutional Convention and the early practice of the national government—did not allocate power over foreign commerce to the executive, even when foreign commerce was intermingled with military or larger diplomatic issues. This Part examines the subsequent century, spanning roughly from 1830 to 1930, to assess whether that original allocation of authority endured in practice. As we show here, the historical record reveals a pattern of executive involvement in foreign commercial affairs. But the President did not regularly claim constitutional authority over those affairs.[256] To the contrary, executive actions in foreign commerce were invariably grounded in legislative instruction. The President’s participation in trade policymaking was neither autonomous nor constitutionally self-justifying; it was contingent on statutory delegation and remained subject to congressional oversight.[257] The result is a consistent historical practice—for the first half of the nation’s history—of congressional primacy in foreign commerce, and a marked lack of any constitutional claims of executive power to act independently or to interpret statutes broadly on constitutional grounds.

A. Delicate Delegations: Conditional Tariff Adjustments

During the early decades of the Republic and continuing throughout the nineteenth century, presidential involvement in regulating foreign commerce operated within a clear and consistent framework: The executive acted only pursuant to express statutory delegations of authority. This framework took root almost immediately. Between 1794 and 1830, Congress enacted at least a dozen statutes granting the President authority to execute commercial policies that Congress formulated.[258] These delegations were narrow in scope and highly conditional, empowering the President to amend, suspend, or apply particular rules of trade “in the interest of the United States,”[259] or “if in his judgment the public interest should require it.”[260] Acts passed in 1794, 1798, 1799, 1806, 1807, 1809, 1815, 1817, 1824, 1828, and 1830 uniformly reflected this fiduciary model.[261]

These statutes were not open-ended grants of foreign commercial discretion. Rather, they reflected Congress’s view that presidential action required a conditional, factual trigger tethered to circumstances specified ex ante by the legislature. This retail-level delegation preserved legislative supremacy while affording the executive a narrow margin for reactive implementation.[262] The limited duration of these delegations—many expired within a few years—underscored Congress’s continuing control over commercial policy and its refusal to yield that domain wholesale. In each of these cases, the President was simply authorized to determine when the circumstances contemplated by Congress had arisen and to issue a proclamation to put the congressionally prescribed action into effect.[263] That structure remains embedded in contemporary trade statutes, particularly those permitting tariff adjustments following formal findings by the executive. In this sense, the trustee-style model developed during this period did not fade with time but continues to structure the boundaries of lawful presidential trade action today.[264]

In the decades preceding the Civil War, debates over trade policy largely unfolded along partisan lines, with Presidents adhering closely to their respective party platforms.[265] Congress alternated between enacting protectionist and more liberal tariff regimes, and the executive branch consistently implemented the legislative will without substantial resistance. While Presidents occasionally shaped party rhetoric—most visibly through addresses to Congress or on the campaign trail[266]—interbranch conflict over tariff policy remained minimal.[267] As sectional tensions mounted in the years before the Civil War, Presidents remained disinclined to contest congressional prerogatives in this domain. For instance, President Lincoln viewed tariff policy primarily as a fiscal instrument to support wartime expenditures.[268] One of his successors, President Grover Cleveland, is known to have said to a supporter at the time of his election that he knew “nothing about the tariff.”[269] Years later, President Cleveland devoted a congressional address to the topic in which he implored Congress to reconsider tariff rates, leading to a congressional battle over tariffs in the 1888 election season.[270] These Presidents relied on Congress and worked with it to regulate foreign commerce and to make the necessary adjustments to tariff rates for the nation’s foreign affairs and economic priorities.

By the end of the nineteenth century, tariff-rate-adjustment delegations expanded the President’s discretion. The McKinley Tariff Act of 1890 allowed the President to remove individually listed products from various tariff classifications and apply different duties.[271] Even then, the President was not given wholesale discretion to set tariffs. The Act required the President to suspend certain duty-free provisions of the law where he found that a trading partner was imposing unequal and unreasonable conditions on those imports that did produce such goods with a view “to secure reciprocal trade with countries.”[272] The Supreme Court confirmed the constitutional integrity of this delegated discretion, famously finding that Congress may “delegate a power to determine some fact or state of things upon which the law makes, or intends to make, [Congress’s] action depend. To deny this would be to stop the wheels of government.”[273]

Over the next 25 years, Congress granted the President greater authority to adjust tariff rates.[274] The Payne–Aldrich Tariff Act of 1909 authorized the President to make certain adjustments to tariff rates by proclamation.[275] And Presidents did so, issuing 134 proclamations with broad reach across the commercial world.[276] But each proclamation was limited to the life of the Act and directed toward a particular country and good.[277] The Payne–Aldrich Act also permitted the President to create a Tariff Board to investigate certain trends in the application of tariffs, but Congress then terminated the Board when control of both houses changed in the 1912 election.[278]

In 1917, when the United States entered World War I, it became necessary once again to consider how to regulate foreign commerce with hostile nations. Congressional primacy over commerce during times of war remained uncontested. Congress passed the Trading with Enemy Act in October 1917,[279] just months after Congress issued a declaration of war. The statute closely resembled the Embargo Acts of a century earlier. It directly imposed restrictions on trading with nationals of countries on whom Congress had declared war and delegated some discretion to the President in the administration of those restrictions.[280]

Despite these delegations, both the President and the Congress were clear on the matter that Congress was responsible for tariff policy and foreign commercial policy more generally.[281] All these delegations came in the form of legislation passed by Congress—legislation that set tariff rates for all U.S. imports, leaving room only for small adjustments based on presidential factfinding, and even directly regulating commerce with enemies during times of war.

B. Discriminating Deals: Trade Executive Agreements

During this same period (1830–1930), the United States began to explore novel forms of foreign commercial regulation, increasingly turning to trade-related treaties with key partners that extended beyond the traditional friendship, commerce, and navigation agreements that characterized the Republic’s early diplomatic practice.[282] The U.S. Tariff Commission, an independent executive branch agency, described U.S. trade policy as “opportunist,” divorced from foreign policy activities, but motivated by the nation’s increased global leadership.[283] Once the United States committed to “far-reaching participation in world politics,” wrote the Commission, it could no longer treat its commercial negotiations as bilateral, isolated conversations in which the President would evaluate other nations’ foreign commercial practices and react accordingly.[284] A practice in which the President develops “special arrangements” would be “troublesome,” according to the Commission.[285]

These specialized trade arrangements also began to appear in treaties negotiated by the executive during the early nineteenth century. Notably, an 1831 treaty with France—intended to resolve outstanding claims arising from the Napoleonic Wars—included a U.S. commitment to reduce duties on French wines.[286] Although this concession was one of several reciprocal obligations, it drew the attention of other foreign governments who soon pressed for comparable treatment of their own exports to the United States in subsequent negotiations.[287]

A decade later, the Tyler administration negotiated the first so-called reciprocal trade agreement with what is now Germany.[288] German officials complained to the administration about the special treatment toward the French in the 1831 treaty and informed President Tyler’s envoy that they were unwilling to make any changes in the German tariff rules unless accompanied by corresponding reductions from the United States.[289] The Tyler administration proceeded with the negotiation of the treaty, but, as highlighted in the prior Section, the domestic politics of tariff rates were complex and the President was not empowered to dole out special reductions without congressional approval.[290]

The negotiation of the trade treaty with Germany was one of the earliest times that a President unilaterally departed from congressional will on trade, or at least sought to do so—and the result was decisive. The Senate refused to ratify the agreement and others like it. The failed treaty with Germany was one of seven that were negotiated but not brought into force due to resistance in the Senate.[291] The Senate Foreign Relations Committee released a critical report that advised rejection of the agreement on the basis that the President had no constitutional authority to regulate foreign commerce. The Committee asserted that “the control of trade and the function of taxing belong, without abridgment or participation, to Congress” and that “[r]epresentatives of the people . . . may better discern what true policy prescribes and rejects, than . . . the executive department.”[292] “The appropriate function of the executive, the committee said, was ‘to follow, not to lead; to fulfill, not to ordain, the law . . . not to go forward with [a] too ambitious enterprise.’”[293] In the following years, the Senate rejected almost every agreement that sought to regulate foreign commerce by lowering tariff rates.[294]

As congressional interests shifted in favor of more liberal trade policy, and in light of pressing economic and political issues facing the nation, policymakers entertained not just greater presidential discretion to adjust tariff rates but also new means of adopting reciprocal reductions in tariff rates and other barriers to trade. For example, the United States concluded reciprocal agreements with six Latin American countries, Austria-Hungary, Germany, Great Britain (for the West Indies), and Spain (for Cuba and Puerto Rico).[295] Although Congress did not formally approve these agreements, it did choose to terminate them in 1894 when political control shifted toward a more protectionist policy.[296] Partisan control of the Congress flipped again in 1896, prompting the more liberal Dingley Tariff Act of 1897. That Act invited the President to negotiate reciprocal trade treaties.[297] The executive branch negotiated six treaties, but none were ratified.[298] More restrictive trade agreements were concluded with nine countries under another directive in this Act, but they were terminated by Congress in 1909.[299]

The historical record of congressional-executive interaction over trade agreements during this period reflects a consistent institutional pattern: The President negotiated agreements, and Congress—principally through the Senate—evaluated the resulting texts, approving or rejecting them in full. In most cases, these negotiations were expressly authorized by statute, with Congress delineating the scope of the President’s authority in advance. When the executive exceeded those bounds, the legislature responded by refusing to ratify the resulting agreements. The substance of these arrangements—like tariff policy more generally—tracked the prevailing legislative sentiment, oscillating between protectionist and liberalizing impulses. Partisan dynamics shaped the broader discourse, as with domestic tariff debates. Yet unlike tariffs, where the President exercised some measure of discretion and policy leadership, his role in trade agreement negotiations was more narrowly circumscribed. The bounds of the President’s role were reinforced by the structural features of the treaty process itself: Trade agreements, unlike ordinary legislation, were indivisible instruments, subject to approval or rejection in full.

***

This Part illustrates how delegations of foreign commercial authority, while present from the early Republic, became a systematic feature of federal trade policy in the closing decades of the nineteenth century. Even then, such delegations were both demarcated and transactional: Congress regularly did initiate, direct, and revoke executive action. During this century-long period, no President claimed independent constitutional power over trade policy. Instead, Presidents regularly acknowledged Congress’s primacy, often soliciting legislative authorization before undertaking new foreign commercial initiatives. This pattern of interbranch exchange—characterized by negotiation, request, and response—suggests not a gloss-ratified expansion of executive power but a statutory framework built upon legislative supremacy.

The dynamic identified here gave rise to a “trader in chief” role for the President. But that role, to the extent it existed, was wholly derivative of Congress’s authority.[300] The President operated as a statutory agent, not a constitutional principal.[301] Authority to adjust tariff rates, to negotiate reciprocal trade arrangements, to coordinate with foreign governments on commercial matters, and even to suspend foreign commerce during times of war, was invariably rooted in express delegations or executed pursuant to the shared treaty power. No example from this period supports the proposition that the executive’s engagement in trade was predicated on an independent Article II mandate.

In sum, the distinctive feature of the 1830–1930 period is the institutionalization of legislative delegation and not the emergence of executive prerogative in foreign commerce. Over these decades, Congress began to vest the President with limited authority to alter tariff schedules and expanded his power to initiate trade negotiations, in some respects out of necessity for the operation of a global economy.[302] This Part has shown that these powers remained bounded by statute and policy, not by constitutional implication. The President remained a conduit for legislative design, not an architect of foreign commercial authority. The President’s supra-constitutional actions began to take shape in the second half of the twentieth century, as the next Part argues, and have now reached an inflection point.

V. The Statutory Bounds of Contemporary Commerce

From 1930 to the present, the federal government’s regulation of foreign trade has increased just as foreign commerce itself has expanded by leaps and bounds through innovation.[303] Advances in transportation and technology have increased the volume of cross-border trade and demanded greater oversight and facilitation by governments around the world. With those developments, Congress, the executive, and eventually the courts, have become more engaged in these matters than at the time of the Founding.

As this expansion began, so did the commentary that sought to shift the pendulum of foreign commerce powers toward the White House. Already in the early part of the twentieth century, commentators remarked that

[a]nother and very specific way in which the power of the President is exercised over commerce is through his special authority over foreign relations . . . . [T]he President . . . is obliged to respect the power of Congress over commerce, and must observe in commercial treaties the policies established by the laws of Congress . . . . [D]espite its importance, [Congress] is a changing mechanism and one which has little actual contact with commerce.[304]

From 1930 through the early 2000s, Congress delegated vast authority to the executive branch in foreign commerce.[305] Whether acting as Congress’s agent in executing U.S. trade policy or managing the entirety of the U.S. trade apparatus, the executive was charged with exercising considerable discretion in foreign commerce.[306] Although some of those delegations were challenged by aggrieved industries, no presidential administration tested the foundations of this shared system like the Trump and Biden administrations.

This Part considers the recent Presidents’ extraordinary views on the foreign commerce power. To be sure, the Trump administration’s take on an executive foreign commerce power is not unique nor limited to the Trump administration, though recent months have raised the stakes higher than ever before. We examine two tools used by the Trump administration: tariffs and trade agreements. Both tools have dominated the administration’s approach to global economic governance in the first year of Trump’s second term.[307] However, even if the administration were to abandon them tomorrow, the impact of their use will permeate both domestic and international law for the foreseeable future. In sum, by explaining how President Trump has sought to use trade agreements and tariffs to achieve national policy objectives, we show how a set of capacious delegations gave rise to strained constitutional claims over statutory territory.

A. Tariffs

Despite Congress’s constitutional ownership of tariffs, tariffs are at the center of President Trump’s “America First Trade Policy” in his second term.[308] The President has relied on a handful of statutes both to threaten and collect double- and triple-digit percent tariffs on imports from nearly every country in the world.[309] His aggressive anti-liberalization policy has upended global trade flows and supply chains to an unprecedented degree, far exceeding the scope and magnitude of the tariff program put in place during the President’s first term—which was already a notable departure from Congress’s longstanding trade posture. In this Section, we review the statutes on which the President has relied as well as his claims to foreign affairs authority as a means of extending those statutes’ reach.

The second Trump administration’s most impactful tariff action during its first year in office has been its imposition of what have been called “worldwide tariffs.”[310] On April 2, 2025, the President announced a 10 percent tariff on products from all countries and additional tariffs that vary by country of origin.[311] The President has claimed that these all-encompassing tariffs were authorized under the 1977 International Emergency Economic Powers Act (IEEPA). The IEEPA is a descendant of the 1917 Trading with the Enemy Act. In the IEEPA, Congress tried to cabin what had become the President’s routine use of the Trading with the Enemy Act to regulate foreign commerce. The IEEPA provides the President with certain extraordinary authorities that he may use to “deal with any unusual and extraordinary threat, which has its source in whole or substantial part outside the United States, to the national security, foreign policy, or economy of the United States, if the President declares a national emergency with respect to such threat.”[312] In this instance, the President declared an emergency regarding “a lack of reciprocity in our bilateral trade relationships, disparate tariff rates and non-tariff barriers, and U.S. trading partners’ economic policies that suppress domestic wages and consumption, as indicated by large and persistent annual U.S. goods trade deficits . . . .”[313] Having made an emergency declaration, the IEEPA empowers the President, in relevant part, to

investigate, block during the pendency of an investigation, regulate, direct and compel, nullify, void, prevent or prohibit, any acquisition, holding, withholding, use, transfer, withdrawal, transportation, importation or exportation of, or dealing in, or exercising any right, power, or privilege with respect to, or transactions involving, any property in which any foreign country or a national thereof has any interest by any person, or with respect to any property, subject to the jurisdiction of the United States.[314]

In addition to these global measures, the administration has implemented tariffs that are country- and product-specific. In February 2025, again relying on the IEEPA, President Trump announced the imposition of so-called trafficking tariffs on products from some of the United States’ biggest trading partners: Canada, China, and Mexico. He referred to an “unusual and extraordinary threat” from those governments’ failures to take sufficient actions to address unlawful migration to the United States and to prevent the entry of illicit drugs into the United States.[315] Similarly, in March 2025, the White House issued an executive order in which it authorized the Secretary of State to determine whether imports to the United States from any third country found importing oil from Venezuela ought to be subject to a 25 percent tariff.[316] The Trump administration also imposed 40 percent tariffs on goods from Brazil under the IEEPA due to Brazil’s prosecution of its former President Jair Bolsonaro,[317] as well as 25 percent tariffs on Indian imports in response to India’s continued purchase of Russian oil during the Russian war in Ukraine.[318] Although only the “trafficking” and “worldwide” tariffs were at issue in Learning Resources, the Supreme Court’s decision that IEEPA does not authorize tariffs would appear to foreclose all of these duties.[319]

But Learning Resources hardly means the end of extraordinary tariffs. In contrast to the tariffs imposed under the IEEPA, the special tariffs imposed during President Trump’s first term relied on delegations that first require an investigation and findings by an agency. These statutes enable the executive branch to raise tariffs when an agency identifies a threat to the U.S. economy from another government’s actions or a threat to U.S. national security arising from the imports of a particular product.[320] The administration has deployed these powers again in its second term. For example, the administration has relied on Section 232 of the Trade Expansion Act of 1962 to increase duties on imports of steel, aluminum, and their derivative products from all countries, as well as to impose new duties on products such as automobiles, certain automobile parts, copper, timber and lumber, and trucks.[321] Section 232 permits the President to “adjust imports” of an article where the Secretary of Commerce finds that the article is being imported “in such quantities or under such circumstances as to threaten to impair the national security.”[322] Additionally, in 2025, the administration has turned to Section 232 as the basis for investigations into imports of semiconductors, pharmaceuticals, critical minerals, commercial aircraft, jet engines, polysilicon, and unmanned aircraft systems.[323]

Relying on Section 301 of the Trade Act of 1974, Trump has imposed tariffs on products from Nicaragua,[324] imposed fees on certain foreign vessels,[325] and threatened additional tariffs on products from countries imposing digital services taxes[326] and on countries engaging in unfair trade practices regarding fishing.[327] Section 301 permits the Office of the U.S. Trade Representative (USTR) to impose duties or other import restrictions, where the USTR finds that an act, policy, or practice of a foreign country “is unreasonable or discriminatory and burdens or restricts United States commerce.”[328] The Trump administration relied on Section 301 during his first term to impose tariffs on most imports from China, tariffs that the Biden administration continued and even increased with respect to some products.[329] And, after the Supreme Court struck down the President’s IEEPA tariffs in Learning Resources, the administration opened new Section 301 investigations that it claimed could allow it to reinstate many of the IEEPA tariffs,[330] while in the meantime imposing a 10 percent duty on nearly all products from all countries under Section 122 of the Trade Act of 1974.[331]

These tariff orders have prompted many lawsuits, with plaintiffs arguing that President Trump exceeded his statutory authority.[332] In defending the President’s actions, the government has repeatedly argued that the President’s foreign affairs and national security powers require courts to construe those statutes broadly such that even explicit limits should not apply.[333] The Federal Circuit, which has exclusive appellate jurisdiction over appeals arising from laws authorizing tariffs, upheld the first Trump-term Section 232 tariffs against all challenges. Contrary to the historical understanding of the foreign commerce power, the court held in one case that “the President has some independent constitutional authority over national security and dealings with foreign nations” that applies to foreign commerce statutes, including when they are used to impose tariffs.[334] In 2021, after the Federal Circuit upheld Section 232 tariffs despite the fact that President Trump had imposed the challenged tariffs after a statutory deadline had passed, a dissenting judge took the majority to task for ignoring the commercial context of the statute:

Because the procedures set forth in § 232 are trade focused, and the relief provided is trade specific, the subject matter of § 232 flows directly Congress’s constitutional power over the Tariff. The majority decision, however, is untethered from the U.S. trade law context. As such, it answers the wrong question.[335]

Our analysis suggests three things with respect to future litigation over tariffs specifically, and foreign commerce in general. First, the government’s argument that any foreign commerce statute should be read in light of the President’s Article II powers is inconsistent with the original understanding of the Foreign Commerce Clause, the Tariff Clause, and their relationship to Article II. The Supreme Court’s holding in Learning Resources that the President lacks any inherent authority to impose tariffs (at least in peacetime)[336] should foreclose the type of separation of powers reasoning on which the Federal Circuit relied in rejecting challenges to the Section 232 tariffs.

This rejection of the relevance of Article II to the interpretation of tariff delegations is especially important given the government’s litigation strategy. In arguing V.O.S. Selections (which was later consolidated with Learning Resources) before the Federal Circuit, the government referred to IEEPA as a “supplement” to the President’s “Article II powers over foreign affairs” and argued that the Court ought to uphold the President’s actions because he had invoked his foreign relations power.[337] According to the government, “Presidents have exercised that authority across many administrations to impose tariffs that in their judgment will protect national security, foster economic prosperity, and facilitate negotiations with foreign counterparts.”[338] As we have shown in prior research, the government has consistently sought to conflate Article I and Article II powers to broaden the reading of foreign commerce statutes.[339] Despite this well-established position, the Court’s opinion in Learning Resources repeatedly emphasizes that the government disclaimed any reliance on Article II at oral argument before the Supreme Court.[340] In evaluating future foreign commerce delegations, it will be important for lower courts to hold the government to its concession in Learning Resources, now reflected in the Court’s holding, that the President lacks Article II powers over tariffs.

Second and relatedly, prior to Learning Resources, several Justices on the current Court had suggested that ordinary rules on statutory construction that instruct a court to read statutes narrowly, such as the major questions doctrine, may not apply “when a congressional statute confers wide discretion to the executive . . . if ‘the discretion is to be exercised over matters already within the scope of executive power.’”[341] Whatever the relevance of that type of foreign affairs exceptionalism in matters concerning shared constitutional powers (such as war powers), our analysis reveals that it has no place where foreign commerce statutes are concerned. The Supreme Court adopted this view in Learning Resources, holding that there is no foreign affairs exception applicable to the interpretation, including the application of the major questions doctrine, to tariff delegations because the President and Congress do not enjoy concurrent constitutional authority to impose tariffs during peacetime.[342] Indeed, the Supreme Court has historically treated foreign commerce statutes in the same manner as domestic economic statutes, including announcing the canonical “intelligible principle” test for ordinary nondelegation cases in a dispute over the 1922 Tariff Act.[343] And while these cases involve only tariffs, the history we have discussed suggests no reason to differentiate between tariffs and other foreign commerce issues that are also committed exclusively to Congress.

In short, courts should be attentive to whether the President actually does have any shared constitutional power over the constitutional matter in dispute. This Article has shown that where foreign commerce is involved, he does not. The interpretation of the scope of the President’s authority under foreign commerce statutes should thus proceed in the same manner as the interpretation of domestic commerce statutes. The fact that the Supreme Court has so held in Learning Resources will play an important role in future foreign commerce litigation, including the pending cases challenging the Section 122 tariffs imposed in February 2026, and may spur plaintiffs to think about renewing challenges to Federal Circuit decisions that rested on the erroneous view that the President’s Article II powers are relevant to the scope of tariff delegations.

Third, Learning Resources explicitly reserved the question of whether the President might be able to impose tariffs during wartime. This reservation also suggests that the extent to which the President can regulate foreign commerce more broadly during wartime did not fall within the scope of the Court’s decision. President Trump’s removal of the President of Venezuela through military action and his war against Iran, neither authorized by Congress and both with significant commercial implications, mean that the scope of the President’s inherent authority to regulate foreign commerce during militarized conflicts may well become the subject of litigation. But our analysis shows that peacetime versus wartime does not make a difference to whether the President enjoys inherent authority. In the early years of the Republic, Presidents still regularly sought congressional authorization for embargoes, during armed conflicts, in trade with countries against whom Congress had not issued a declaration of war. In short, when the President’s foreign affairs powers do overlap with Congress’s foreign commerce powers, Congress prevails.

B. Trade Agreements

Tariffs are not the only means through which recent administrations have relied on their foreign affairs powers to supplement or enhance their statutory authorities. President Trump’s unprecedented negotiation of what he calls trade “deals” during both his terms offers yet another illustration of how Congress’s powers over tariffs and commerce have been minimized, even when they have not been fully erased.[344]

The setting of the stage for this presidential power shift began much earlier than the modern tariff statutes. The Senate’s rejection of numerous trade treaties in the mid-nineteenth century prompted a shift in the relationship between the branches in the twentieth century when it came to the negotiation, conclusion, and implementation of deals addressing foreign commerce.[345] The primary institutional outcome of this shift was to abandon the treaty as the vehicle through which the country would bargain on trade. Instead, Congress delegated authority to the President to enter into trade agreements, which it would then approve and implement through legislation—at least so it began.[346] This Section explains how Presidents in several administrations have overstepped that arrangement and have mistakenly relied on an absent constitutional foreign affairs power to do so.

The Reciprocal Trade Agreements Act of 1934 was the first time that Congress granted the President substantial discretion to enter into international agreements regulating foreign commerce.[347] Most familiar to the trade policy world, though, is the detailed statutory scheme known as Trade Promotion Authority (TPA), first instituted in 1974.[348] Under this scheme, the executive can seek expedited legislative approval of a trade agreement so long as the agreement covers congressionally approved objectives, among other legislative requirements. The 2015 TPA legislation, for example, covers twenty-one issue areas in the negotiating objectives ranging from “trade in goods” to “anti-corruption.”[349] The executive, led by the USTR, may then negotiate an agreement that it brings back to Congress for approval and implementation.[350] For several decades under TPA, congressional consent to trade agreements has come from both houses of Congress via legislation, rather than through Senate advice and consent.

Scholars debated the constitutionality of the congressional-executive trade agreement in the 1990s.[351] The issue at that time was intra-congressional—did trade agreement approval require two-thirds of the Senate, or both houses of Congress? Despite these concerns, modern practice takes this debate as settled. All but one of the sixteen major free trade agreements into which the United States has entered have been implemented via the TPA process. In addition to TPA, certain additional statutes give the President latitude to make agreements to resolve investigations conducted pursuant to specific statutory rules.[352]

Today, the issue has shifted from whether the full Congress must approve trade agreements to whether and when Congress’s authorization or consent is required at all. In recent years, and indeed in recent months with considerable expediency, Presidents and their designees have entered into hundreds of trade-related agreements not authorized, approved by, or subsequently implemented by Congress in any way.[353]

The issue of the executive’s legal basis for trade agreements arose during the first Trump administration with respect to two deals negotiated between the United States and Japan.[354] Members of Congress also raised concerns about the lack of congressional approval with the Biden administration as the administration negotiated the Indo-Pacific Economic Framework (IPEF) and similar agreements.[355] Unusually, given current practice, Congress approved and implemented one such agreement with Taiwan via legislation. This legislation also required congressional consultation and authorization before bringing any future agreements into force.[356] In signing the Taiwan bill, President Biden indicated that he felt that congressionally imposed restrictions on his ability to negotiate trade agreements “would impermissibly infringe upon [the President’s] constitutional authority to negotiate with a foreign partner.”[357]

The second Trump administration has continued this path of entering into agreements that unquestionably regulate commerce with foreign nations but lack any statutory basis. In April 2025, President Trump demanded that countries commence negotiations with the United States in the hopes of avoiding higher tariff rates for their exporters. The President claimed that his administration would negotiate “90 deals in 90 days.”[358] According to the administration, such trade-related agreements would be necessary to eliminate the national emergency concerning the U.S. trade deficit by extracting tariff and nontariff concessions from these countries.[359] In June 2025, the United States and the United Kingdom reported the reciprocal implementation of certain trade-related guarantees.[360] Shortly thereafter, the Trump administration said that the United States and China agreed to a de-escalation of tariffs and other retaliatory measures,[361] and the United States and China seem poised to implement a more comprehensive resolution of their trade concerns.[362] As of the time of writing, the administration has also announced that is has reached agreements with about a dozen trading partners.[363]

When challenged, Presidents have defended these unlawful agreements with a handful of unsatisfactory arguments. First, the executive branch has pointed to tenuous claims of delegated authority. The USTR, for instance, argues that the agency’s organic statute—which provides that, inter alia, the Trade Representative shall “have lead responsibility for the conduct of, and shall be the chief representative of the United States for, international trade negotiations”[364]—constitutes authorization for actually entering into trade agreements. Although framed as a statutory argument, this claim rests on an implicit constitutional argument that only the most minimal congressional blessing is necessary to authorize executive branch action given its constitutional role in foreign affairs.

Second, drawing from the historical gloss approach, some have maintained that Congress has acquiesced to this executive branch practice.[365] These proponents note that Congress is not on record as having objected; ergo, it has consented.[366] Congress does not know about many of these agreements because the executive branch does not report them, so it is unclear that congressional acquiescence can be inferred even under a historical gloss approach.[367] More to the point here, these historical arguments rest on practices over the course of the last century or even just the last several decades. However, those practices are inconsistent with the original understanding of the Constitution and the historical practices from the Founding through the early twentieth century.[368] The government’s arguments thus seek to use recent historical practices to vary the original understanding and well-established practice of congressional control over trade agreements.[369]

A third response is that Congress must approve only those agreements that change U.S. law.[370] Under this view, Congress does not need to consent to agreements that do not require a change to federal statutes. U.S. Trade Representative Jamieson Greer has said that these 2025 agreements would not be provided to Congress for approval and implementation; rather, they would be implemented as executive agreements. Ambassador Greer justified this position by asserting that the agreements would include few, if any, commitments by the United States.[371] This is a variation on the acquiescence argument: Congress typically has not approved agreements that do not purport to change U.S. law, so why should it start now? For example, the Obama administration took the position that it did not need congressional consent for some international agreements, including those that covered areas outside of trade, as long as it had the authority under general statutory delegations to implement U.S. commitments.[372]

But if Congress has the power “to regulate commerce with foreign nations” and to “make all Laws which shall be necessary and proper for carrying into Execution” that power,[373] then surely Congress has the right to choose the instrument through which it regulates foreign commerce, including by insisting on its consent to the creation of international commitments related to foreign commerce. Congress made this point as early as 1974 in its passage of the TPA. Regardless of the form of agreement and whether the agreement requires changes to U.S. law, the executive branch does not have independent power to enter into a trade-related agreement without that authorization. Moreover, the deals negotiated by the Trump administration do appear to involve changes to U.S. law that require congressional authorization. Specifically, they contemplate that the United States will raise duties on partner countries permanently, a change that conflicts with trade agreements implemented by statute.[374]

These tenuous claims of broader delegated authority also extend to the modification and withdrawal from trade agreements. Given that it is clear, as a constitutional matter, that the President may not repeal legislation, it ought to be clear that the President lacks the authority to withdraw from trade agreements implemented through legislation as well, at least to the extent that the legislation presumes the agreement’s continuation in force or even explicitly restricts withdrawal.[375] Nevertheless, a 2001 study by the Congressional Research Service concluded that neither policymakers nor scholars have “seriously challenged” that Presidents may unilaterally withdraw from such agreements.[376] During his first term, President Trump claimed the authority to withdraw from the NAFTA.[377] Prominent commentators agreed with Trump, arguing that “the suggestion that the commerce authority is exclusive in a way that would distinguish congressional-executive agreements from Article II treaties is unpersuasive.”[378] The OLC has likewise concluded that “there is no good reason to believe that the Constitution preserves any greater role for Congress in the termination of a congressional-executive agreement on international trade than on any other subject matter.”[379] The OLC based this determination on the principle that the President is the “constitutional actor with ‘exclusive prerogatives in conducting the Nation’s diplomatic relations’” and as “the agent of the United States in conducting diplomacy, coupled with his constitutional responsibility to execute the laws.”[380] The OLC invoked Youngstown, and concluded that withdrawing from an agreement related to foreign commerce is, therefore, “supported by both the President’s own independent foreign-affairs authority and Congress’s approval [of the agreement]—putting the President’s authority at its constitutional zenith.”[381]

But as we have noted, Congress regularly maintained and exercised its authority to control modification and withdrawal from trade agreements during the nineteenth century.[382] Until the twentieth century, there was no consistent congressional practice that supported a presidential power to withdraw, at least when such withdrawal implicated congressional legislation in the foreign commerce context. In other words, whatever may be true for noncommercial agreements, the original understanding and historical practice, once we focus on the correct timeframe, does not support a unilateral presidential power of withdrawal from trade agreements.

Conclusion

Since returning to office, President Trump has invoked an executive foreign affairs power to implement an array of cross-border commercial moves, among them the imposition of duties and related restrictions as well as the formulation of so-called trade deals. Our examination of those exemplary policy tools, and like tools maintained by President Biden, has laid plain the problems with the recent reliance on a vision of Article II authority wrongly superimposed over Article I. But these are not the only spaces that exemplify this approach. Our analysis has lessons for other areas of foreign commercial lawmaking, and beyond, that we touch on here by way of conclusion: nonenforcement of foreign commercial restrictions; the administrative law foreign affairs exception; and international regulatory cooperation.

While President Trump has been conspicuous in asserting expansive executive authority in foreign commercial regulation, his administration has also invoked the President’s Article II powers as a basis for refusing to enforce foreign commercial statutes. Most notably, the President has declined to pursue enforcement actions under the Foreign Corrupt Practices Act and failed to implement statutory mandates concerning the prohibition of TikTok.[383] These statutes, duly enacted pursuant to Congress’s foreign commerce power, articulate a regulatory framework that the executive is bound to administer. The refusal to enforce such provisions reflects not mere discretion, but a broader challenge to the constitutional architecture of separated powers: Congress legislates and the executive executes. When the President declines to enforce statutes designed to govern foreign commerce, he not only disregards legislative command but also unsettles the institutional balance envisioned by the Framers.

In yet another example of the administration running roughshod over the separation of trade law powers, in March 2025, Secretary of State Marco Rubio published a notice in the Federal Register in which he purported to determine that “all efforts, conducted by any agency of the federal government, to control the status, entry, and exit of people, and the transfer of goods, services, data, technology, and other items across the borders of the United States, constitute a foreign affairs function of the United States under the Administrative Procedure Act [(APA)], 5 U.S.C. 553, 554.”[384] This notice reflects still another move by the administration to exert an extraordinarily broad understanding of statutory terms in favor of a general foreign affairs “function” that attempts to swallow the foreign commerce power, not to mention immigration issues. Secretary Rubio characterizes his own “primary foreign affairs duty: the duty to protect the people of the United States from any threats originating from foreign actors or from foreign soil.”[385] But he claims that “the scope of a foreign affairs function of the United States is much broader.”[386] Apart from its inconsistency with judicial interpretations of the foreign affairs exception in the APA, as a practical matter, excepting all regulatory activity that governs the movement of goods and services across borders would give the executive a free hand in areas in which Congress clearly did not intend to eliminate the deliberative processes required by the APA.

Finally, a substantial portion of modern executive branch activity operates within the domain of transnational regulatory cooperation. Nearly every federal agency now engages in regulatory initiatives with cross-border dimensions encouraged by prior administrations and expressly authorized by Congress.[387] The suggestion that international engagement exempts agency action from standard mechanisms of oversight and democratic accountability would have sweeping implications across the regulatory landscape from agricultural imports to advanced manufacturing to digital infrastructure. Again, the assertion that Article II alone empowers the President to displace congressional instruction in this sphere represents a sharp departure from constitutional design. The Founders placed the foreign commerce power squarely in congressional hands, with the expectation that executive implementation would remain subject to law.

In defending both its actions and omissions, the executive branch has not limited itself to conventional arguments of statutory interpretation. It has advanced sweeping claims rooted in an asserted constitutional authority over foreign commerce—claims that draw on a capacious conception of the foreign affairs power and appeal to a pattern of twentieth-century executive practice. Such a construction, if further endorsed by the courts, would mark a profound and unwarranted expansion of presidential power. These arguments find no foundation in the constitutional text or in the understandings of the Founding generation. The Constitution contemplates executive authority over foreign commerce only as delegated by statute; it does not permit the executive to augment those statutory delegations by invoking a generalized foreign affairs power. As novel disputes arise over presidential control of cross-border trade, this Article has sought to chart a corrective path—one that reaffirms the primacy of congressional authority and restores the constitutional balance.

Copyright © 2026 Kathleen Claussen* and Timothy Meyer**

*  Anne Fleming Research Professor & Professor of Law, Georgetown University Law Center.

**  Richard Allen/Cravath Distinguished Professor in International Business Law, Duke University School of Law. Thanks to the research librarian team at Georgetown Law for their contributions, especially David Isom. Thanks also to Lea Frenkel, Daniel Kim, and Jacob Koelsch for excellent research assistance.

       [1]. See, e.g., Eli Stokols, Doug Palmer, Myah Ward & Phelim Kine, Trump Got What He Wanted with Colombia. But His Tactics Could Come Back to Bite Him, Politico (Jan. 28, 2025), https://www.politico.com/news/2025/01/28/trump-colombia-trade-tariffs-007093 [https://perma.cc/RNU2-SCCJ] (discussing how a political skirmish about Colombian migrants to the United States prompted President Trump to threaten a 25 percent tariff on all Colombian goods).

       [2]. These totals reflect the actions as of August 1, 2025, when primary work on this Article was completed. Presidential Actions, White House, https://www.whitehouse.gov/presidential-actions/ [https://perma.cc/X923-QR44]; see also Chad P. Bown, Trump’s Trade War Timeline 2.0: An Up-to-Date Guide, PIIE: RealTime Econ. (Dec. 31, 2025), https://www.piie.com/blogs/realtime-economics/2025/trumps-trade-war-timeline-20-date-guide [https://perma.cc/Z3Y7-2HN5]. As one commentator has noted, “[t]his certainly gives the appearance that the president has sweeping powers over the setting of tariff rates.” Alan Wm. Wolff, Trump Tariffs and the Courts: Round 2, PIIE: RealTime Econ. (July 31, 2025), https://www.piie.com/blogs/realtime-economics/2025/trump-tariffs-and-courts-round-2 [https://perma.cc/Y76C-S4NN].

       [3]. See, e.g., Opening Brief for Appellants at 31, V.O.S. Selections, Inc. v. Trump, 149 F.4th 1312 (Fed. Cir. 2025) (Nos. 2025-1812, -1813) (“IEEPA’s text, history, and precedent confirm that it empowers the President to impose tariffs to address declared emergencies.”), aff’d sub nom., Learning Resources, Inc. v. Trump, 146 S. Ct. 628 (2026).

       [4]. We will necessarily address how the constitutional and statutory bounds intersect in Part V. Our prior work has considered the rise of the statutory authorities. See, e.g., Kathleen Claussen & Timothy Meyer, Economic Security and the Separation of Powers, 172 U. Pa. L. Rev. 1955, 1964–68 (2024). Historians have also charted that rise and how it has affected trade policy. See, e.g., Douglas A. Irwin, Clashing over Commerce: A History of U.S. Trade Policy (2017). But neither we nor they have investigated the Framers’ intent with respect to presidential authority.

       [5]. U.S. Const. art. I, § 8.

       [6]. See infra Part V.

       [7]. See infra Part V.

       [8]. See infra Part IV.

       [9]. See infra Part III.

     [10]. Opening Brief for Appellants, supra note 3, at 1 (emphasis added). The Supreme Court ultimately affirmed the Federal Circuit’s holding that IEEPA does not authorize the President to impose tariffs. Learning Resources, Inc. v. Trump, 146 S. Ct. 628 (2026).

     [11]. See Opening Brief for the Respondents in No. 24-1287 and the Petitioners in No. 25-250 at 22, Learning Resources, 146 S. Ct. 628 (Nos. 24-1287 & 25-250) (arguing that the nondelegation doctrine “has little or no force in the foreign-affairs context, where the President enjoys inherent Article II authority and Congress ‘must of necessity [sic] paint with’ a ‘broader’ brush.” (quoting Zemel v. Rusk, 381 U.S. 1, 17 (1965))). This framing is more subtle than that used before the Court of Appeals by suggesting that there is no problem with reading delegations broadly rather than framing statutes as mere supplements to constitutional authority. Ultimately, though, it has the same aim: to use the President’s purported constitutional power over foreign affairs to persuade courts to read statutory delegations broadly.

     [12]. See Kathleen Claussen, Trade Administration, 107 Va. L. Rev. 845, 857–62 (2021); Timothy Meyer & Ganesh Sitaraman, Trade and the Separation of Powers, 107 Calif. L. Rev. 583, 598 (2019) (“Congress believed there were policy benefits in delegating trade authority and insulating tariff rate-setting from congressional logrolling.”).

     [13]. See, e.g., Trade Act of 1974, 19 U.S.C. § 2411 (empowering the Trade Representative to take actions against foreign countries that restrict U.S. commerce); Trade Expansion Act of 1962, 19 U.S.C. § 1862(c)(1)(A)(ii) (empowering the President to “adjust the imports of the article and its derivatives so that such imports will not threaten to impair the national security”).

     [14]. See infra Part II.

     [15]. For a very short list of qualifying contributions, see, for example, Randy E. Barnett, The Original Meaning of the Commerce Clause, 68 U. Chi. L. Rev. 101 (2001); Richard A. Epstein, Constitutional Faith and the Commerce Clause, 71 Notre Dame L. Rev. 167 (1996); Mark Tushnet, Rethinking the Dormant Commerce Clause, 1979 Wis. L. Rev. 125. This topic is also discussed at length by the various essays featured in the Arkansas Law Review’s volume 55 symposium issue. See, e.g., Mark R. Killenbeck, Introduction: The Hand Maid of Liberty?, 55 Ark. L. Rev. 711 (2003).

     [16]. See, e.g., Curtis A. Bradley, Historical Gloss and Foreign Affairs: Constitutional Authority in Practice (2024); Harold Hongju Koh, The National Security Constitution in the 21st Century 21 (2024); Curtis Bradley & Jack Goldsmith, Foreign Affairs, Nondelegation, and the Major Questions Doctrine, 172 U. Pa. L. Rev. 1743, 1770 (2024); Saikrishna B. Prakash & Michael D. Ramsey, The Executive Power over Foreign Affairs, 111 Yale L.J. 231, 243 (2001).

     [17]. Exceptionally, see Jide Nzelibe, Presidential Constraint of Agencies in Foreign Affairs, 77 Admin. L. Rev. 371 (2025). In a related vein, Nicholas Parrillo has argued that Congress’s sweeping delegation of the power to impose embargoes in a 1794 statute “undermines the idea that there existed a foreign-affairs exception [to the nondelegation doctrine] to cover it.” Nicholas R. Parrillo, Foreign Affairs, Nondelegation, and Original Meaning: Congress’s Delegation of Power to Lay Embargoes in 1794, 172 U. PA. L. Rev. 1803, 1809 (2024). His analysis rests in large part on the importance of foreign commerce to the exercise of liberties protected by the nondelegation doctrine. Id.

     [18]. See infra Part III.A.

     [19]. See infra Parts III.B & III.C.

     [20]. See infra Part III.D.

     [21]. See infra Part III.D.

     [22]. Learning Resources, Inc. v. Trump, 146 S. Ct. 628, 638 (2026).

     [23]. Id.

     [24]. Complaint, Oregon v. Trump, No. 1:26-cv-01472-3JP (Ct. Int’l Trade Mar. 5, 2026), https://ag.ny.gov/sites/default/files/court-filings/state-of-oregon-et-al-v-donald-j-trump-et-al-complaint-2026.pdf; Complaint, Burlap & Barrel, Inc. v. Trump, No. 1:26-cv-01606 (Ct. Int’l Trade Mar. 9, 2026), https://libertyjusticecenter.org/wp-content/uploads/011-Burlap-and-Barrel-v.-Trump-Mot-PI-and-SJ-2026.03.13.pdf [https://perma.cc/MH89-BTSW].

     [25]. Jason Horowtiz, Trump Threatens to End Trade with Spain, N.Y. Times (Mar. 3, 2026), https://www.nytimes.com/2026/03/03/world/middleeast/trump-spain-trade.html.

     [26]. Patricia Cohen, Oil Shocks Send Tremors Through World Economy: ‘This Really is the Big One’, N.Y. Times (Mar. 12, 2026), https://www.nytimes.com/2026/03/12/business/economy/iran-oil-shock-economy-global-impact.html [https://perma.cc/K7MW-7RT9].

     [27]. See, e.g., South Dakota v. Wayfair, Inc., 138 S. Ct. 2080 (2018); Barclays Bank PLC v. Franchise Tax Bd., 512 U.S. 298 (1994); Franchise Tax Bd. v. Alcan Aluminium Ltd., 493 U.S. 331 (1990); Wardair Canada, Inc. v. Fla. Dep’t of Revenue, 477 U.S. 1 (1986); United States v. 12 200-Ft. Reels of Super 8mm. Film, 413 U.S. 123 (1973); Bd. of Trs. of Univ. of Ill. v. United States, 289 U.S. 48, 59 (1933); Brolan v. United States, 236 U.S. 216, 218–19 (1915); The Abby Dodge, 223 U.S. 166, 176–77 (1912); Buttfield v. Stranahan, 192 U.S. 470, 493 (1904); Gibbons v. Ogden, 22 U.S. 1, 195 (1824).

     [28]. See infra Part I.B. There is also some work by originalist scholars unpacking the meaning of these words to which we will return in Part III. We do not consider that work in detail because scholars have addressed the meaning of the text with respect to the Interstate Commerce Clause and only incidentally the Foreign Commerce Clause, as we explain below.

     [29]. Claussen & Meyer, supra note 4, at 1970–74. Exceptionally, see also Alan Wm. Wolff, Evolution of the Executive-Legislative Relationship in the Trade Act of 1974, 19 SAIS Rev. 16 (1975).

     [30]. This remains true even in the decades that follow—a theme to which we will return. See Michael A. Zuckerman, The Offshoring of American Government, 94 Corn. L. Rev. 165, 180 (2008) (“Lower courts borrow the dormant Interstate Commerce Clause standard to adjudicate challenges to state regulation of foreign commerce because the Supreme Court’s dormant Foreign Commerce Clause jurisprudence is relatively undeveloped.”); see also Antilles Cement Corp. v. Acevedo Vilá, 408 F.3d 41, 46 (1st Cir. 2005) (“Although the language of dormant Commerce Clause jurisprudence most often concerns interstate commerce, essentially the same doctrine applies to international commerce.”).

     [31]. See Conrad J. Weiler, Jr., How “Commerce Among the Several States” Became “Interstate Commerce,” and Why it Matters, 34 Const. Comment. 329, 375–76 (2019) (“[T]he legal community had convinced itself within a few years of the introduction of ‘the interstate commerce power’ that it was the constitutional power.”).

     [32]. Gibbons v. Ogden, 22 U.S. 1, 195 (1824).

     [33]. Id. at 195, 199 (instructing that “when a State proceeds to regulate commerce with foreign nations, or among the several States, it is exercising the very power that is granted to Congress”).

     [34]. Louis M. Greeley, What Is the Test of a Regulation of Foreign or Interstate Commerce?, 1 Harv. L. Rev. 159, 159 (1887).

     [35]. Id.

     [36]. See, e.g., Scott Sullivan, The Future of the Foreign Commerce Clause, 83 Fordham L. Rev. 1955, 1969 (2015) (explaining that Congress’s power to regulate commerce “‘among the several states’ has been overlooked in favor of an all-encompassing ‘Commerce Clause’ doctrine”); Michael S. Knoll & Ruth Mason, The Dormant Foreign Commerce Clause After Wynne, 39 Va. Tax Rev. 357, 358 (2020) (surveying dormant Foreign Commerce Clause doctrine).

     [37]. See, e.g., Bd. of Trs. of Univ. of Ill. v. United States, 289 U.S. 48, 59 (1933); Brolan v. United States, 236 U.S. 216, 218–19 (1915); The Abby Dodge, 223 U.S. 166, 176–77 (1912); Buttfield v. Stranahan, 192 U.S. 470, 493 (1904).

     [38]. See, e.g., supra note 37 (citing cases).

     [39]. Bd. of Trs. of Univ. of Ill., 289 U.S. at 59.

     [40]. Id. at 56–57.

     [41]. See Anthony J. Colangelo, The Foreign Commerce Clause, 96 Va. L. Rev. 949, 953 (2010) (defining “the ‘inward-looking’ foreign commerce power” as “the power to regulate domestically under the Foreign Commerce Clause”); see also S.-Cent. Timber Dev., Inc. v. Wunnicke, 467 U.S. 82, 100 (1984) (“It is a well-accepted rule that state restrictions burdening foreign commerce are subjected to a more rigorous and searching scrutiny.”).

     [42]. In Japan Line, Ltd. v. Los Angeles, the Court invalidated a California tax on Japanese shipping containers partly on the ground that the federal government had less ability to ensure fair apportionment when dealing with foreign sovereigns. 441 U.S. 434, 442, 451 (1979) (“[T]he ‘home port doctrine,’ as a rule for taxation of moving equipment, has yielded to a rule of fair apportionment among the States.”). Interestingly, this is the first case to use the phrase “Foreign Commerce Clause.” Id. at 449 n.14.

     [43]. Michelin Tire Corp. v. Wages, 423 U.S. 276, 285 (1976) (emphasis added) (footnotes omitted). Michelin Tire’s first component mirrors the Japan Line, Ltd. “one voice” requirement. Further, in Japan Line, Ltd., the Court reiterated that foreign commerce is an area where the federal government must “speak with one voice,” limiting state interference. Japan Line, Ltd., 441 U.S. at 449; see also Barclays Bank PLC v. Franchise Tax Bd., 512 U.S. 298, 308 (1994) (applying the Japan Line, Ltd. three-part test, the third part of which is whether the measure impedes the federal government from speaking with one voice when regulating commercial regulations with foreign governments); Itel Containers Int’l Corp. v. Huddleston, 507 U.S. 60, 77 (1993); Kraft Gen. Foods, Inc. v. Iowa Dep’t of Revenue & Fin., 505 U.S. 71, 79 (1992) (“[A] State’s preference for domestic commerce over foreign commerce is inconsistent with the Commerce Clause even if the State’s own economy is not a direct beneficiary of the discrimination.”); Wardair Canada, Inc. v. Fla. Dep’t of Revenue, 477 U.S. 1, 8 (1986) (“[T]he concern in these Foreign Commerce Clause cases is not with an actual conflict between state and federal law, but rather with the policy of uniformity, embodied in the Commerce Clause, which presumptively prevails when the Federal Government has remained silent.”); Container Corp. of Am. v. Franchise Tax Bd., 463 U.S. 159, 170 (1983); Mobil Oil Corp. v. Comm’r of Taxes, 445 U.S. 425, 443–44 (1980); La. Pub. Serv. Comm’n v. Tx. & N.O.R. Co., 284 U.S. 125, 132 (1931); South Dakota v. Wayfair, Inc., 138 S. Ct. 2080, 2089 (2018).

     [44]. By the twenty-first century, the use of the “one voice” doctrine became a rallying cry for executive authority, rather than federal authority, and proliferated outside of foreign commerce as well. See, e.g., Zivotofsky v. Kerry, 576 U.S. 1, 14 (2015) (“Recognition is a topic on which the Nation must ‘speak . . . with one voice.’. . . That voice must be the President’s. Between the two political branches, only the Executive has the characteristic of unity at all times. And with unity comes the ability to exercise, to a greater degree, ‘[d]ecision, activity, secrecy, and dispatch.’” (first quoting Am. Ins. Ass’n v. Garamendi, 539 U. S. 396, 424 (2003), then quoting The Federalist No. 70 (Alexander Hamilton))). But see David Moore, Beyond One Voice, 98 Minn. L. Rev. 953 (2014) (citing evidence to the contrary).

     [45]. Accordingly, the laws discussed in this Section are perhaps most appropriately viewed as “foreign commerce” rather than “commerce with foreign nations,” but they have been treated through the lens of the Foreign Commerce Clause, so we likewise examine them here.

     [46]. Colangelo, supra note 41, at 953 (defining “the ‘outward-looking’ foreign commerce power” as “the power to regulate extraterritorially”).

     [47]. Id. at 969.

     [48]. Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today (PROTECT) Act of 2003, 18 U.S.C. § 2423(b).

     [49]. Id.

     [50]. See, e.g., Maritime Drug Law Enforcement Act (MDLEA), 46 U.S.C. §§ 70501–70508. But see United States v. Davila-Mendoza, 972 F.3d 1264, 1277 (11th Cir. 2020) (invalidating MDLEA as applied).

     [51]. See, e.g., Abitron Austria GMBH v. Hetronic Int’l, Inc., 600 U.S. 412, 428 (2023) (holding that the Lanham Act sections prohibiting the unauthorized use in commerce of a protected trademark when that use is likely to cause confusion do not apply extraterritorially).

     [52]. See Veazie v. Moor, 55 U.S. 568, 573 (1852) (“Commerce with foreign nations, must signify commerce which in some sense is necessarily connected with these nations, transactions which either immediately, or at some stage of their progress, must be extraterritorial.”); Lord v. S.S. Co., 102 U.S. 541, 544 (1880) (quoting Veazie, 55 U.S. at 573).

     [53]. Baston v. United States, 137 S. Ct. 850 (mem.), 851 (2017) (Thomas, J., dissenting from denial of certiorari) (“The few decisions from this Court addressing the scope of the Clause have generally been confined to laws regulating conduct with a significant connection to the United States.”).

     [54]. Id. at 850; see also In re Sealed Case, 936 F.3d 582, 586 (D.C. Cir. 2019).

     [55]. See generally Meyer & Sitaraman, supra note 12; Kathleen Claussen, The Other Trade War, 103 Minn. L. Rev. Headnotes 1 (2018); Matthew Schaefer, Self-Executing International Agreements and Private Rights of Action: Revisiting the 4th Restatement of Foreign Relations Law in the Context of International Trade and Investment Agreements, 45 U. Pa. J. Int’l L. 743 (2024); Daniel K. Tarullo, Law and Politics in Twentieth Century Tariff History, 34 UCLA L. Rev. 285, 286 (1986); Kenneth M. Casebeer, The Power to Regulate “Commerce with Foreign Nations” in a Global Economy and the Future of American Democracy: An Essay, 56 U. Mia. L. Rev. 25, 26 (2001); Naomi Harlin Goodno, When the Commerce Clause Goes International: A Proposed Legal Framework for the Foreign Commerce Clause, 65 Fla. L. Rev. 1139, 1140 (2013).

     [56]. See, e.g., Anderson L. Cao, Limiting States’ Roles in Foreign Commerce: Teaching Old-World Dogs New-World Tricks, 23 Hous. J. Int’l L. 349 (2001); Daniel M. Price & John P. Hannah, The Constitutionality of United States State & Local Sanctions, 39 Harv. Int’l L.J. 443 (1998); Daniel M. Price, John P. Hannah & Marinn F. Carlson, Crosby v. NFTC and the Future of State and Local Sanctions, 32 Law & Pol’y Int’l Bus. 37 (2000); Howard N. Fenton, III, The Fallacy of Federalism in Foreign Affairs: State and Local Foreign Policy Trade Restrictions, 13 Nw. J. Int’l L. & Bus. 563 (1993).

     [57]. See, e.g., William J. Aceves, Lost Sovereignty? The Implications of the Uruguay Round Agreements, 19 Fordham Int’l L.J. 427 (1995); Matt Schaefer & Thomas Singer, Multilateral Trade Agreements and U.S. States, 26 J. World Trade 31 (1992); David A. Gantz, A Post-Uruguay Round Introduction to International Trade Law in the United States, 12 Ariz. J. Int’l & Compar. L. 1 (1995).

     [58]. See, e.g., Bruce Ackerman & David Golove, Is NAFTA Constitutional?, 108 Harv. L. Rev. 799, 919 (1995); Laurence H. Tribe, Taking Text and Structure Seriously: Reflections on Free Form Method in Constitutional Interpretation, 108 Harv. L. Rev. 1221 (1995).

     [59]. Many of these were symposia or student notes. See, e.g., Kathleen Claussen, Old Wine in New Bottles? The Trade Rule of Law, 44 Yale J. Int’l. L. Online 61, 64 (2019); Harold Hongju Koh, Trump Change: Unilateralism and the “Disruption Myth” in International Trade, 44 Yale J. Int’l. L. Online 96, 102 (2019).

     [60]. See Jacob Gladysz, Note, The National Security Exception in WTO Law: Emerging Jurisprudence and Future Direction, 52 Geo. J. Int’l L. 835, 842–49 (2021).

     [61]. See Claussen & Meyer, supra note 4, at 1960–64.

     [62]. See Colangelo, supra note 41, at 952 (“Other commonly used enumerated sources of extraterritorial legislation do contemplate a degree of foreign consent for their authorization, which in turn limits the subject matter of the resultant law.”).

     [63]. 343 U.S. 579, 642, 644 (1952) (Jackson, J., concurring) (“That military powers of the Commander-in-Chief were not to supersede representative government of internal affairs seems obvious from the Constitution and from elementary American history.”); id. at 610–11 (Frankfurter, J., concurring) (“[A] systematic, unbroken, executive practice, long pursued to the knowledge of the Congress and never before questioned, engaged in by Presidents who have also sworn to uphold the Constitution, making as it were such exercise of power part of the structure of our government, may be treated as a gloss on ‘executive Power’ vested in the President by § 1 of Art. II.”).

     [64]. This is most clear in the Roberts Court’s jurisprudence on the President’s appointment and removal power, in which the Court has struck down a range of congressional statutes creating removal protections for certain officials that have a long twentieth-century pedigree but are, in the Court’s view, inconsistent with the original meaning of the separation of powers. Similar issues have also come up in the Roberts Court’s rights jurisprudence, especially in regard to the Second Amendment. See infra notes 108–18 and accompanying text.

     [65]. Michael D. Ramsey, The Vesting Clauses and Foreign Affairs, 91 Geo. Wash. L. Rev. 1513, 1514 (2023).

     [66]. U.S. Const. art. I, § 8, cls. 1, 3, 10.

     [67]. Id. cl. 11.

     [68]. Id. cls. 12, 13.

     [69]. Id. cl. 14.

     [70]. Id. art. II, § 2, cl. 1.

     [71]. Id. cl. 2.

     [72]. Id. art. II, § 3, cl. 1.

     [73]. See Prakash & Ramsey, supra note 16, at 243.

     [74]. See Zivotofsky v. Kerry, 576 U.S. 1, 13, 22 (2015) (holding that the President has preclusive power to recognize foreign nations and their boundaries).

     [75]. Curtis A. Bradley, Jack Goldsmith & Oona A. Hathaway, The Rise of Nonbinding International Agreements: An Empirical, Comparative, and Normative Analysis, 90 U. Chi. L. Rev. 1281, 1285 (2023).

     [76]. See Rebecca Ingber, Congressional Administration of Foreign Affairs, 106 Va. L. Rev. 395, 397 (2020).

     [77]. Prakash & Ramsey, supra note 16, at 234, 254.

     [78]. See id. at 265. But see Julian Davis Mortenson, The Executive Power Clause, U. Pa. L. Rev. 1269, 1271 (2020) (“For the founders, ‘the executive power’ meant the power to execute the law. Nothing more. And nothing less.”).

     [79]. Prakash & Ramsey, supra note 16, at 262.

     [80]. Id.

     [81]. Koh, supra note 16, at 3.

     [82]. See Oona A. Hathaway, National Security Lawyering in the Post-War Era: Can Law Constrain Power?, 68 UCLA L. Rev. 2, 84 (2021) (“To effectively counterbalance the executive branch, Congress not only needs more lawyers who understand national security law matters and are cleared into classified programs, but most importantly, it also needs an institutional counterweight to the Department of Justice’s [Office of Legal Counsel].”).

     [83]. See id. at 89.

     [84]. See, e.g., War Powers Resolution, 50 U.S.C. §§ 1541–1548; United States-Taiwan Initiative on 21st Century Trade First Agreement Implementation Act, 19 U.S.C. § 2112 note.

     [85]. Meyer & Sitaraman, supra note 12, at 638.

     [86]. INS v. Chadha, 462 U.S. 919, 958–59 (1983) (“There is unmistakable expression of a determination that legislation by the national Congress be a step-by-step, deliberate and deliberative process.”).

     [87]. Harlan G. Cohen, Formalism and Distrust: Foreign Affairs Law in the Roberts Court, 83 Geo. Wash. L. Rev. 380, 384–85 (2015); Ganesh Sitaraman & Ingrid Wuerth, The Normalization of Foreign Relations Law, 128 Harv. L. Rev. 1897, 1919 (2015).

     [88]. But see Ramsey, supra note 65, at 1514 (“[M]uch of the apparent difficulty in foreign affairs constitutionalism can be mitigated by giving up thinking about foreign affairs as a meaningful constitutional category.”).

     [89]. 299 U.S. 304 (1936).

     [90]. Id. at 320.

     [91]. Id. at 312; Zivotofsky v. Kerry, 576 U.S. 1, 21 (2015) (“This description of the President’s exclusive power was not necessary to the holding of Curtiss-Wright—which, after all, dealt with congressionally authorized action, not a unilateral Presidential determination.”).

     [92]. Jean Galbraith, The Runaway Presidential Power Over Diplomacy, 108 Va. L. Rev. 81, 83 (2022).

     [93]. Id. at 86, 113 (quoting Prohibition on Spending for Engagement of the Office of Science and Technology Policy with China, 35 Op. O.L.C. 116, 121–22 (Sep. 19, 2011)).

     [94]. See generally id.

     [95]. There are, of course, exceptions. See, e.g., Ackerman & Golove, supra note 58, at 929 (“Only effective frameworks will discourage Presidents . . . from supposing that the Constitution grants the executive branch a vast prerogative for unilateral foreign adventurism.”); Prakash & Ramsey, supra note 16, at 346–54.

     [96]. See Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 610–11 (1952) (Frankfurter, J., concurring).

     [97]. Id. at 637 (Jackson, J., concurring).

     [98]. Id.

     [99]. Id.

   [100]. See Dames & Moore v. Regan, 453 U.S. 654, 686–88 (1981); Haig v. Agee, 453 U.S. 280, 291 (1981) (cautioning that in foreign affairs, “congressional silence is not to be equated with congressional disapproval”).

   [101]. Curtis A. Bradley & Trevor W. Morrison, Historical Gloss and the Separation of Powers, 126 Harv. L. Rev. 411, 414 (2012); Curtis A. Bradley & Neil S. Siegel, Historical Gloss, Constitutional Convention, and the Judicial Separation of Powers, 105 Geo. L.J. 255, 258 (2017); Bradley, supra note 16.

   [102]. Bradley & Morrison, supra note 101, at 417.

   [103]. Id. at 418–20.

   [104]. William Baude, Constitutional Liquidation, 71 Stan. L. Rev. 1, 4 (2019) (“Liquidation was a specific way of looking at post-Founding practice to settle constitutional disputes . . . .”).

   [105]. Curtis A. Bradley & Neil S. Siegel, Historical Gloss, Madisonian Liquidation, and the Originalism Debate, 106 Va. L. Rev. 1, 2, 41 (2020) (contrasting the narrow view of liquidation that settles the meaning of ambiguous terms based on Founding-era practices with a broader view that might allow “reliquidation” based on later practices).

   [106]. See infra Part IV; Claussen & Meyer, supra note 4 (discussing the evolution of executive dominance of foreign commerce in the twentieth century).

   [107]. See Restatement (Fourth) of the Foreign Rels. L. of the U.S. § 313(a) & cmt. C (A.L.I. 2019) (providing in the black letter text that “[a]ccording to established practice, the President has the authority to act on behalf of the United States” when withdrawing from agreements, but acknowledging that eighteenth- and nineteenth-century practice does not provide any consistent state practice supporting that view).

   [108]. See Galbraith, supra note 92, at 85–87.

   [109]. Leah M. Litman, Debunking Antinovelty, 66 Duke L.J. 1407, 1410–12 (2017) (explaining that “antinovelty rhetoric” views a practice’s novelty as “a strong indication that it [is] unconstitutional” and providing examples of its use by the Supreme Court).

   [110]. Id. at 1411–12.

   [111]. Id. at 1425.

   [112]. 561 U.S. 477, 510 (2010).

   [113]. Id. at 505 (Kavanaugh, J., dissenting) (quoting Free Enter. Fund v. Pub. Co. Acct. Oversight Bd., 537 F.3d 667, 699 (D.C. Cir. 2008)).

   [114]. See Seila Law LLC v. CFPB, 591 U.S. 197, 222 (2020) (holding that the CFPB’s single-director structure is unconstitutional and had “no foothold in history or tradition”); N.Y. State Rifle & Pistol Ass’n, Inc. v. Bruen, 597 U.S. 1, 33 n.8 (2022) (“[I]n light of the text of the Second Amendment, along with the Nation’s history of firearm regulation, we conclude below that a State may not prevent law-abiding citizens from publicly carrying handguns because they have not demonstrated a special need for self-defense.”); Jarkesy v. SEC, 34 F.4th 446, 464–65 (5th Cir. 2022).

   [115]. See Trump v. Slaughter, 146 S. Ct. 18 (2025) (granting certiorari before judgment to decide the constitutionality of for-cause removal protections).

   [116]. 145 S. Ct. 1415, 1415 (2025) (concluding that the Trump administration is likely, on appeal, to be able to show that for-cause removal protections for members of the National Labor Relations Board and Merit Systems Protections Board are unconstitutional); id. at 1419 (Kagan, J., joined by Sotomayor & Jackson, J.J., dissenting) (characterizing the majority’s holding as “allow[ing] the President to overrule Humphrey’s by fiat”).

   [117]. Wilcox, 145 S. Ct. at 1415 (“The Federal Reserve is a uniquely structured, quasi-private entity that follows in the distinct historical tradition of the First and Second Banks of the United States.”).

   [118]. 576 U.S. 1, 30 (2015). To be fair, the Court’s opinion in Zivotofsky does not rely on originalist analysis. Several members of the Court in the majority there have now been replaced by members that considerably more originalist in their outlook.

   [119]. Id. at 23–24 (internal citations and quotations omitted).

   [120]. Higher Education Relief Opportunities for Students Act of 2003, 20 U.S.C. § 1098bb(a)(1).

   [121]. Biden v. Nebraska, 600 U.S. 477, 485, 501 (2023).

   [122]. See discussion infra Part III.A.

   [123]. See, e.g., Prakash & Ramsey, supra note 16; see also Michael W. McConnell, The President Who Would Not Be King: Executive Power under the Constitution 235–62 (2020); Gary Lawson & Guy Seidman, The Jeffersonian Treaty Clause, 2006 U. Ill. L. Rev. 1, 41; Michael Stokes Paulsen, Youngstown Goes to War, 19 Const. Comment. 215, 237–38 (2002); John C. Yoo, War and the Constitutional Text, 69 U. Chi. L. Rev. 1639, 1677 (2002).

   [124]. Prakash & Ramsey, supra note 16, at 253–54; McConnell, supra note 123, at 11.

   [125]. See Mortenson, supra note 78, at 1271–72; Julian Davis Mortenson, Article II Vests the Executive Power, Not the Royal Prerogative, 119 Colum. L. Rev. 1169, 1172 n.8 (2019); David Gray Adler, The Framers and Executive Prerogative: A Constitutional and Historical Rebuke, 42 Presidential Stud. Q. 376 (2012); Jack N. Rakove, Taking the Prerogative out of the Presidency: An Originalist Perspective, 37 Presidential Stud. Q. 85, 85 (2007); Curtis A. Bradley & Martin S. Flaherty, Executive Power Essentialism and Foreign Affairs, 102 Mich. L. Rev. 545, 568–70 (2004).

   [126]. Alfred McCoy, As the “Tariff Man,” Trump is creating the Second Gilded Age, Salon (July 30, 2025), https://www.salon.com/2025/07/30/tariff-man-is-bringing-back-the-gilded-age/ [https://perma.cc/2TMP-DQJU]. In his Learning Resources dissent, Justice Thomas takes the opposite view, arguing that the power to impose tariffs was “a prerogative right of the King.” Learning Resources v. Trump, 146 S. Ct. 628, 685 (Thomas, J., dissenting) (internal quotation marks omitted). He makes this argument to show that the power to impose tariffs was not a “legislative” power, even though the Constitution grants it to Congress, and thus that Congress could delegate the power without implicating nondelegation concerns. Id. at 684. In response, Justice Gorsuch noted that while “[t]ariffs may have been among the King’s prerogative powers during the reign of Edward I,” that was no longer true as early as 1400, and, as described in the text that follows, by the 1688 Glorious Revolution Parliament had “secured supremacy in fiscal matters.” Learning Resources, 146 S. Ct. at 670 (Gorsuch, J., concurring) (internal citation omitted).

   [127]. Learning Resources, 146 S. Ct. at 638 (“A tariff,’ after all, is a tax levied on imported goods and services.” (internal quotation marks and citation omitted)).

   [128]. G.L. Harriss, King, Parliament, and Public Finance in Medieval England to 1369, at 36 (1975) (discussing dates).

   [129]. Linda S. Popofsky, The Crisis Over Tonnage and Poundage in Parliament in 1629, 126 Past & Present 44, 49 (1990).

   [130]. Id. at 49–50.

   [131]. Conrad Russell, Parliaments and English Politics 1621–1629, at 225–38 (1979).

   [132]. 19 Proceedings of the Short Parliament of 1640, at 152–153 (Esther S. Cope & Willson H. Coates eds., 1977).

   [133]. Tonnage and Poundage Act 1640, 16 Car. 1 c. 8, § 6 (Eng.).

   [134]. Bill of Rights 1689, 1 W. & M. Sess. 2 c. 2 (Eng.) (“That levying money for or to the Use of the Crowne by pretense of Prerogative without Grant of Parlyament for longer time or in other manner then the same is or shall be granted is Illegall.”).

   [135]. Josh Chafetz, Congress’s Constitution: Legislative Authority and the Separation of Powers 47 (2017).

   [136]. Andrew Kent, Executive Power, the Royal Prerogative, and the Founders’ Presidency, 2 J. Am. Const. Hist. 403, 410 (2024).

   [137]. See 1713 Treaty of Utrecht, Apr. 11, 1713/Mar. 31, 1713, in 1 A Collection of All the Treaties of Peace, Alliance, and Commerce Between Great-Britain and Other Powers, from the Revolution in 1688, to the Present Time 287 (1772).

   [138]. John H. Jackson, Status of Treaties in Domestic Legal Systems: A Policy Analysis, 86 Am. J. Int’l L. 310, 319 (1992) (“The United Kingdom is generally considered the prime example of a dualist system.”).

   [139]. Id.; Arabella Lang, House of Commons Libr., Briefing Paper No. 5855: Parliament’s Role in Ratifying Treaties 5 (2017).

   [140]. Today, even the royal prerogative over treaties is somewhat diminished. In the twentieth century, the Ponsonby Rule emerged, under which the government would lay treaties before Parliament before ratifying them. The 2010 Constitutional Reform and Governance Act codified that obligation and granted Parliament the right to indefinitely block the ratification of treaties. Lang, supra note 139, at 10–13.

   [141]. Kevin Douglas Tufnell, ‘A Safe and Honourable Peace’: British Political Discourse, Politics and Policy Formation in the Making of the Treaty of Utrecht, 1708 to 1713, at 213 (Mar. 21, 2022) (Ph.D. thesis, University College London), https://discovery.ucl.ac.uk/id/eprint/10151123/ [https://perma.cc/2X2A-6GJ6].

   [142]. W.O. Henderson, The Anglo-French Commercial Treaty of 1786, 10 Econ. Hist. Rev. 104, 104 n.5 (1957).

   [143]. Id.; Doohwan Ahn, The Anglo-French Treaty of Commerce of 1713: Tory Trade Politics and the Question of Dutch Decline, 36 Hist. Eur. Ideas 167, 169 (2010).

   [144]. Ahn, supra note 143, at 168; Henderson, supra note 142, at 104–05.

   [145]. Henderson, supra note 142, at 104 n.5; Tufnell, supra note 141, at 232.

   [146]. Ahn, supra note 143, at 169 (“It was Bolingbroke’s firm belief that the Whig continental policy of containing France by fortifying the Dutch barrier was responsible for the continued Dutch dominance in world trade.”).

   [147]. Articles of Confederation of 1781, art. IX, para. 1.

   [148]. Id. art. VI, para. 3.

   [149]. Id. art. IX, para. 6.

   [150]. Albert Anthony Giesecke, American Commercial Legislation Before 1789, at 140 (1910) (“The states possessed sovereign powers in the matter of commercial legislation; moreover, they jealously guarded this power. Hence, in the Articles of Confederation, . . . the powers of Congress over commercial legislation were very restricted in scope.”).

   [151]. Irwin, supra note 4, at 55 (quoting Madison in 1787).

   [152]. 1 Joseph Story, Commentaries on the Constitution of the United States § 261 (Melville M. Bigelow ed., Little, Brown & Co., 5th ed. 1905) (1833).

   [153]. The Federalist No. 5, at 25 (John Jay) (Ian Shapiro ed., 2009).

   [154]. 2 The Records of the Federal Convention of 1787, at 625 (Max Farrand ed., 1911).

   [155]. Irwin, supra note 4, at 54; Giesecke, supra note 150, at 144 (“One commercial power Congress did have . . . it appointed commercial agents abroad and secured several treaties of commerce and friendship with foreign nations.”).

   [156]. Irwin, supra note 4, at 56–57.

   [157]. Robert J. Delahunty, Federalism Beyond the Water’s Edge: State Procurement Sanctions and Foreign Affairs, 37 Stan. J. Int’l L. 1, 18 (2001).

   [158]. Id. at 19.

   [159]. Id.

   [160]. St. George Tucker, View of the Constitution of the United States (1803), reprinted in View of the Constitution of the United States with Selected Writings 188 (Clyde N. Wilson ed., 1999); see also Delahunty, supra note 157, at 19.

   [161]. Irwin, supra note 4, at 56–57.

   [162]. Id. at 58; see also Giesecke, supra note 150, at 140 & n.69.

   [163]. Irwin, supra note 4, at 56–57.

   [164]. 3 The Records of the Federal Convention of 1787, supra note 154, at 521.

   [165]. Hugh Williamson, Speech at Edenton (Nov. 8, 1787), in The Documentary History of the Ratification of the Constitution Digital Edition (John P. Kaminski, Gaspare J. Saladino, Richard Leffler, Charles H. Schoenleber & Margaret A. Hogan eds., 2009), https://rotunda-upress-virginia-edu.libproxy.berkeley.edu/founders/RNCN-03-16-02-0071 [https://perma.cc/HV87-2DY5].

   [166]. The Address and Reasons of Dissent of the Minority of the Convention of the State of Pennsylvania to their Constituents (Dec. 12, 1787), in The Documentary History of the Ratification of the Constitution Digital Edition (John P. Kaminski, Gaspare J. Saladino, Richard Leffler, Charles H. Schoenleber & Margaret A. Hogan eds., 2009), https://rotunda-upress-virginia-edu.libproxy.berkeley.edu/founders/RNCN-02-02-02-0003-0003 [https://perma.cc/2HTA-BP9V].

   [167]. Tucker, supra note 160, at 188.

   [168]. 1 The Records of the Federal Convention of 1787, supra note 154, at 263.

   [169]. Id. at 133, 142.

   [170]. The Federalist No. 23, at 115 (Alexander Hamilton) (Ian Shapiro ed., 2009).

   [171]. Letter from William Bingham to Tench Coxe (June 12, 1788), in The Documentary History of the Ratification of the Constitution Digital Edition (John P. Kaminski, Gaspare J. Saladino, Richard Leffler, Charles H. Schoenleber & Margaret A. Hogan eds., 2009), https://rotunda-upress-virginia-edu.libproxy.berkeley.edu/founders/RNCN-02-20-02-0004-0199 [https://perma.cc/HQJ6-HDR3].

   [172]. 3 Story, supra note 152, at § 1096.

   [173]. See Jack N. Rakove, Original Meanings: Politics and Ideas in the Making of the Constitution 26 (1997) (citing letter to Jefferson).

   [174]. Id.

   [175]. 2 The Records of the Federal Convention of 1787, supra note 154, at 449.

   [176]. Michael J. Klarman, The Framers’ Coup: The Making of the United States Constitution 277 (2016).

   [177]. 2 The Records of the Federal Convention of 1787, supra note 154, at 625; 3 The Records of the Federal Convention of 1787, supra note 154, at 333; see also, Klarman, supra note 176, at 283.

   [178]. U.S. Const. art. II, § 2, cl. 2.

   [179]. Delahunty, supra note 157, at 25.

   [180]. 2 The Records of the Federal Convention of 1787, supra note 154, at 135.

   [181]. 1 The Records of the Federal Convention of 1787, supra note 154, at 242–43.

   [182]. Id. at 243.

   [183]. 2 The Records of the Federal Convention of 1787, supra note 154, at 308, 493.

   [184]. Id.

   [185]. Id. The “and” was added in September after the clause about the Indian tribes had also been added.

   [186]. We will later return to treaties, so we will not take up the language of the Treaty Clause here. For a more thorough evaluation of the meaning of the constitutional phrase, see, e.g., Lawson & Seidman, supra note 123.

   [187]. Albert S. Abel, The Commerce Clause in the Constitutional Convention and in Contemporary Comment, 25 Minn. L. Rev. 432 (1941); Bd. Of Trs. Of Univ. of Ill. V. United States, 289 U.S. 48, 53 (1933).

   [188]. Barnett, supra note 15, at 114–16.

   [189]. Id.

   [190]. Id. at 124–25.

   [191]. Abel, supra note 187, at 448 (“The identification of commercial regulation with customs stands out plainly in Wilson’s exclamation, when the provision forbidding export duties by the federal government was being debated, ‘To deny this power is to take from the common govt. half the regulation of trade,’ the other half being, as the context shows, the corresponding control over imports. Between them, the implication plainly is, they constituted the whole of commercial regulation.”).

   [192]. Id.

   [193]. Irwin, supra note 4.

   [194]. An Old Whig VI (Nov. 24, 1787), in The Documentary History of the Ratification of the Constitution Digital Edition (John P. Kaminski, Gaspare J. Saladino, Richard Leffler, Charles H. Schoenleber & Margaret A. Hogan eds., 2009), https://rotunda-upress-virginia-edu.libproxy.berkeley.edu/founders/RNCN-03-14-02-0056 [https://perma.cc/SC7H-49GJ].

   [195]. 2 Story, supra note 152, at § 259; Irwin, supra note 4.

   [196]. 3 The Records of the Federal Convention of 1787, supra note 154, at 520–21.

   [197]. To use Abel’s term. See Abel, supra note 187, at 465.

   [198]. Claussen, supra note 12, at 857.

   [199]. In July 1789, the Second Act of Congress established a system of tariffs on imported “goods and merchandises” while the Third Act established tariffs on the tonnage of ships. Already in Congress’s earliest days there was a debate about the proper objectives of a tariff, but most salient was the need for revenue. Act of Jan. 29, 1795, ch. 20, 1 Stat. 414; Act of June 13, 1798, ch. 53, § 5, 1 Stat. 565, 566; Act of July 31, 1789, ch. 5, 1 Stat. 29; Act of Aug. 7, 1789, ch. 9, 1 Stat. 53; Act of Aug. 4, 1790, ch. 35, §§ 62–64, 1 Stat. 145, 175; Act of May 27, 1796, ch. 31, 1 Stat. 474; Act of July 16, 1798, ch. 77, 1 Stat. 605; Act of Sep. 2, 1789, ch. 12, 1 Stat. 65.

   [200]. John F. Coyle, The Treaty of Friendship, Commerce and Navigation in the Modern Era, 51 Colum. J. Transnat’l L. 302, 307 (2013).

   [201]. Id. at 314–15.

   [202]. Id.

   [203]. Craig VanGrasstek, Trade and American Leadership 89 (2019).

   [204]. The President could also, of course, use his veto power to shape the legislation coming from Congress.

   [205]. 5 Annals of Cong. 596 (1796).

   [206]. Id. at 603.

   [207]. 29 Annals of Cong. 1019 (1816); Thomas Sergeant, Constitutional Law 401 (1822); 3 Story, supra note 152, at § 1841.

   [208]. George Washington, Proclamation of Neutrality (Apr. 22, 1793), reprinted by Nat’l Archives: Founders Online, https://founders.archives.gov/documents/Washington/05-12-02-0371 [https://perma.cc/S2NN-YPBR].

   [209]. Jeff Broadwater, Madison, Hamilton, and the Neutrality Proclamation of 1793: debating presidential power and foreign affairs, 83 Historian 171, 175 (2021).

   [210]. Id.

   [211]. Alexander Hamilton, Pacificus No. 1 (June 29, 1793), reprinted by Nat’l Archives: Founders Online, https://founders.archives.gov/documents/Hamilton/01-15-02-0038 [https://perma.cc/3ULS-AMDT].

   [212]. Id. (emphasis removed) (alteration in original).

   [213]. Id.

   [214]. Id.

   [215]. James Madison, “Helvidius” Number 1 (Aug. 24, 1793), reprinted by Nat’l Archives: Founders Online, https://founders.archives.gov/documents/Madison/01-15-02-0056 [https://perma.cc/HMH6-FJ8R]. Indeed, Madison pointed out that Hamilton himself had argued that treaty-making is legislative in nature in the Federalist. Id.

   [216]. James Madison, “Helvidius” Number 2 (Aug. 31, 1793), reprinted by Nat’l Archives: Founders Online, https://founders.archives.gov/documents/Madison/01-15-02-0061 [https://perma.cc/P6TA-2GUG].

   [217]. Alexander Hamilton, Americanus No. 1 (Jan. 31, 1794), reprinted by Nat’l Archives: Founders Online, https://founders.archives.gov/documents/Hamilton/01-15-02-0510 [https://perma.cc/3HD2-ZBLY].

   [218]. Madison, supra note 215.

   [219]. Prakash & Ramsey, supra note 16, at 327.

   [220]. Id. at 327 n.415.

   [221]. Id. at 335.

   [222]. Id. at 341–43; Parrillo, supra note 17, at 1808, 1816.

   [223]. Act of June 4, 1794, ch. 41, 1 Stat. 372 (1794).

   [224]. Id.

   [225]. Prakash & Ramsey, supra note 16, at 346.

   [226]. Similarly, in the context of the nondelegation doctrine, Parrillo writes that “setting aside the foreign aspect of commerce as somehow exceptional, leaving the nondelegation doctrine (and its putative protection of private liberty and property) strongly applicable only to the portion of commerce that happened domestically, would not have made sense in the founding era.” Parrillo, supra note 17, at 1822.

   [227]. See, e.g., id.; Koh, supra note 16, at 21; Bradley & Goldsmith, supra note 16, at 1770; David J. Barron & Martin S. Lederman, The Commander in Chief at the Lowest Ebb—A Constitutional History, 121 Harv. L. Rev. 941, 964 (2008).

   [228]. Prakash and Ramsey also note that

there was no discussion of the President imposing an embargo (or other regulation of commerce) during the Washington Administration; these matters were handled in Congress. In particular, Congress obviously thought the President lacked the ability to impose an embargo on his own authority, for in 1794 it delegated to the President the power to impose an embargo during the legislative recess “whenever, in his opinion, the public safety shall so require.” This further confirms the general understanding that foreign affairs powers conveyed to Congress by the Constitution were conveyed away from the President, even where these powers had previously been traditional executive powers.

Prakash & Ramsey, supra note 16, at 349 (quoting Act of June 4, 1794, ch. 41, 1 Stat. 372). We discuss embargoes at greater length below.

   [229]. 6 U.S. 170 (1804).

   [230]. Act of June 13, 1798, ch. 53, 1 Stat. 565; Act of Feb. 9, 1799, ch. 2, § 5, 1 Stat. 613, 615.

   [231]. Act of Feb. 9, 1799, ch. 2, § 5, 1 Stat. 613.

   [232]. Little, 6 U.S. at 178.

   [233]. Id. at 179.

   [234]. J. Gregory Sindak, The Quasi-War Cases—And Their Relevance to Whether “Letters of Marque and Reprisal” Constrain Presidential War Powers, 28 Harv. J.L. & Pub. Pol’y 465, 493 (2005).

   [235]. 3 Story, supra note 152, at § 1290.

   [236]. Embargo Act of 1807, ch. 5, 2 Stat. 451, 452.

   [237]. Id. at 452.

   [238]. Act of Jan. 9, 1808, ch. 8, 2 Stat. 453; Act of Mar. 12, 1808, ch. 33, 2 Stat. 473.

   [239]. Act of Jan. 9, 1808, ch. 8, 2 Stat. 453; Act of Mar. 12, 1808, ch. 33, 2 Stat. 473.

   [240]. United States v. The William, 28 F. Cas. 614, 620 (D. Mass. 1808) (No. 16,700).

   [241]. Id. at 621.

   [242]. However, the court also ruled that this power was restricted by the “treaty making power of the president and senate.” Id.

   [243]. Embargo Act of 1807, ch. 5, 2 Stat. 451, 452 (applying the embargo to “all ships and vessels”).

   [244]. See Nonintercourse Act of 1809, ch. 24, 2 Stat. 528.

   [245]. Id. §§ 1, 19.

   [246]. Id. § 11.

   [247]. Id. §§ 12, 19.

   [248]. James Madison, Presidential Proclamation (Aug. 9, 1809), reprinted by Nat’l Archives: Founders Online, https://founders.archives.gov/documents/Madison/03-01-02-0353 [https://perma.cc/PX87-NE52].

   [249]. Nonintercourse Act of 1809, ch. 24, § 19, 2 Stat. 533.

   [250]. Letter from Albert Gallatin to the House of Representatives, No. 143: Embargo (May 25, 1809), in 1 American State Papers: Commerce and Navigation 778 (Walter Lowrie & Walter S. Franklin eds.,1834).

   [251]. Id.

   [252]. Id.

   [253]. Madison, supra note 248.

   [254]. Letter from James Madison to Congress, No. 182: Prohibition of Exports (July 20, 1813), in 1 American State Papers: Commerce and Navigation 968 (Walter Lowrie & Walter S. Franklin eds., 1834).

   [255]. Cargo of the Brig Aurora v. United States, 11 U.S. 382, 388 (1813).

   [256]. See Bradley & Morrison, supra note 101, at 422–23; see also Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 610–11 (1952) (Frankfurter, J., concurring) (discussing the importance of “systematic, unbroken, executive practice” in constitutional interpretation).

   [257]. See Charles Evans Hughes, The Supreme Court of the United States: Its Foundations, Methods, and Achievements, an Interpretation 138–42 (1928) (describing the limited, delegated role of the President in tariff matters); see also Mortenson, supra note 125, at 1231–36 (“[T]he executive power didn’t encompass other authorities . . . . [T]he subordinacy of ‘executive power’ was one of its constitutive features.”).

   [258]. Ackerman & Golove, supra note 58, at 820–29, 821 (“Early statutes imposed this duty on the President, typically requiring him to issue a proclamation giving each complying country a clean bill of health. We call these “proclamation statutes,” and they have been very common.”).

   [259]. Act of Feb. 9, 1799, ch. 2, § 4, 1 Stat. 613, 615.

   [260]. Act of Dec. 19, 1806, ch. 1, § 3, 2 Stat. 411, 411.

   [261]. Act of June 4, 1794, ch. 41, § 1, 1 Stat. 372, 372 (Congress authorized the President to lay an embargo on ships as necessary “whenever, in his opinion, the public safety shall so require”); Act of Feb. 9, 1799 § 4, ch. 2, § 4, 1 Stat. 613 (Congress again made it lawful for the President to draw back restrictions on trade that Congress enacted “if he shall deem it expedient and consistent with the interest of the United States” or “whenever, in his opinion, the interest of the United States shall require”); Act of Dec. 19, 1806, ch. 1, § 3, 2 Stat. 411; Act of Mar. 3, 1815, ch. 77, 3 Stat. 224; Act of Mar. 3, 1817, ch. 39, 3 Stat. 361; Act of Jan. 7, 1824, ch. 4, § 4, 4 Stat. 2, 3; Act of May 31, 1830, ch. 220, § 1, 4 Stat. 425, 425–26; Act of June 26, 1884, ch. 121, § 14, 23 Stat. 53, 57.

   [262]. The scope of this retail/wholesale distinction was tested in Field v. Clark, 143 U.S. 649 (1892), in detail, and even earlier in Cargo of the Brig Aurora v. United States, 11 U.S. 382 (1813) (finding that the legislature may make the revival of an act depend upon a future event and direct that event to be made known by proclamation).

   [263]. See Buttfield v. Stranahan, 192 U.S. 470 (1904); Weber v. Freed, 239 U.S. 325 (1915); see also Shalev Roisman, Presidential Factfinding, 72 Vand. L. Rev. 825 (2019) (discussing the President’s role as a factfinder in a variety of statutory schemes).

   [264]. See S. Rep. No. 73-871, at 1–2 (1934) (“The committee has inserted the words ‘as a fact’ following the words in subsection (a) ‘the President, whenever he finds’. This is to make clear that Congress under the proposed bill is establishing a policy and directing the Executive to act in accordance with the congressional policy only when he finds as a fact that existing duties or other import restrictions are unduly burdening and restricting the foreign trade of the United States. In the same provision, to the words ‘existing duties or other import restrictions’ the words ‘of the United States or any foreign country’ have been added to clarify the meaning.”).

   [265]. See, e.g., Irwin, supra note 4, at 185–89, 191; VanGrasstek, supra note 203, at 40.

   [266]. In President Taft’s inauguration in 1909, he called for Congress to give him still greater authority but also noted that any such action was a congressional prerogative. See William Howard Taft, Inaugural Address (Mar. 4, 1909), in 1 Presidential Addresses and State Papers of William Howard Taft 53, 55 (1910) (“It is imperatively necessary, therefore, that a tariff bill be drawn . . . and as promptly passed as due consideration will permit . . . . I venture this as a suggestion only, for the course to be taken by Congress, upon the call of the Executive, is wholly within its discretion.”); see also Warren G. Harding, Inaugural Address (Mar. 4, 1921), in Inaugural Addresses of the Presidents of the United States, S. Doc. No. 101–10, at 237, 243–44 (1989).

   [267]. See e.g., 2 James K. Polk, The Diary of James K. Polk: During His Presidency, 1845 to 1849, at 55 (1910); Zachary Taylor, Inaugural Address (Mar. 5, 1849), in Inaugural Addresses of the Presidents of the United States, S. Doc. No. 101–10, at 111 (1989). Exceptionally, perhaps, Treasury Secretary Robert Walker was active in promoting free trade on behalf of the Polk administration, but the President still relied on Congress to pass legislation with new tariff rates rather than intervene himself in setting tariff rates for products. John M. Dobson, Two Centuries of Tariffs: The Background and Emergence of the U.S. International Trade Commission 13 (1976).

   [268]. Irwin, supra note 4, at 214.

   [269]. Marc-William Palen, Foreign Relations in the Gilded Age: A British Free-Trade Conspiracy?, 37 Diplomatic Hist. 217, 229 (2013); Allen Nevins, Grover Cleveland: A Study in Courage (1932).

   [270]. Irwin, supra note 4, at 259–61.

   [271]. McKinley Tariff Act of 1890, ch. 1244, 26 Stat. 567.

   [272]. Id. § 3, at 612; see also Field v. Clark, 143 U.S. 649, 680 (1892) (noting that Congress lawfully authorized the President to suspend tariff exemptions when foreign nations imposed “unequal and unreasonable” trade conditions, as part of a reciprocal trade framework); Irwin, supra note 4, at 304–10; H.R. Rep. No. 73-1000 (1934); Francis B. Sayre, The Constitutionality of the Trade Agreements Act, 39 Colum. L. Rev. 751 (1939).

   [273]. Field, 143 U.S. at 694 (note also the dissent commenting that this act ought to be distinguished as it is clearly lawmaking).

   [274]. See, e.g., Dingley Tariff Act, ch. 11, 30 Stat. 151, 151 (1897); Fordney-McCumber Act of 1922, ch. 356, § 315, 42 Stat. 858, 941–43.

   [275]. Payne–Aldrich Tariff Act of 1909, ch. 6, § 2, 36 Stat. 11, 82.

   [276]. H.R. Rep. No. 73-1000, at 10 (1934).

   [277]. See, e.g., Proclamation: Tariff on British Products, 36 Stat. 2505, 2505–06 (1910); Proclamation: Tariff on Swiss Products, 36 Stat. 2507, 2507–08 (1910); Proclamation: Tariff on Turkish Products, 36 Stat. 2509, 2509–10 (1910) (with respect to the Ottoman Empire, Great Britain, and Swiss Confederation).

   [278]. Payne–Aldrich Tariff Act of 1909, ch. 6, § 2, 36 Stat. 11, 82–83; Rebecca Gomez Betancourt & Stephen Meardon, The Scientific Tariff: From Origins to the Travails of F.W. Taussig, 32 Euro. J. Hist. Econ. Thought 596, 607 (2025) (“The election of Democrat Woodrow Wilson and Democrats’ gain of unified control of Congress in 1912 spelled the demise of the Tariff Board.”).

   [279]. Trading with the Enemy Act, ch. 106, 40 Stat. 411 (1917).

   [280]. Id. §§ 2, 3 (defining an “enemy” as any resident “of any nation with which the United States is at war” and imposing sanctions on such enemies, subject to the discretion of the President to lift those sanctions).

   [281]. See U.S. Int’l Trade Comm’n, Investigation No. 332–335, The Economic Effects of Significant U.S. Import Restraints 65 (2009) (“Prior to the 1930 act, tariff changes were viewed as entirely the domain of Congress.”); see also Hal Shapiro & Lael Brainard, Trade Promotion Authority Formerly Known As Fast Track: Building Common Ground on Trade Demands More Than a Name Change, 35 Geo. Wash. Int’l L. Rev. 1, 6 (2003) (“Prior to the twentieth century U.S. regulation of foreign commerce was almost exclusively a congressional prerogative.”); Ian F. Fergusson, Cong. Rsch. Serv., RL33743, Trade Promotion Authority (TPA) and the Role of Congress in Trade Policy 2–3 (2015).

   [282]. See Giesecke, supra note 150, at 144.

   [283]. U.S. Tariff Comm’n, Reciprocity and Commercial Treaties 10 (1919).

   [284]. Id.

   [285]. Id.

   [286]. Claims and Duties on Wines and Cotton (Franco-American Treaty of 1831), July 4, 1831, 8 Stat. 430 (1831).

   [287]. Elizabeth Feaster Baker, Henry Wheaton, 1785-1848, at 142–43 (1937).

   [288]. See John Tyler, Dec. 3, 1844: Fourth Annual Message, reprinted by Miller Ctr., https://millercenter.org/the-presidency/presidential-speeches/december-3-1844-fourth-annual-message [https://perma.cc/FV4W-AJXZ].

   [289]. Baker, supra note 287, at 143, 227.

   [290]. Id. at 143.

   [291]. U.S. Tariff Comm’n, supra note 283, at 21.

   [292]. S. Journal, 43d Cong., 2d Sess. 857 (1874); see also VanGrasstek, supra note 203, at 94 (“[T]he Senate rejected it because legislators believed that the president had no constitutional authority to deal with commerce. Representatives reiterated that view in their aforementioned refusal to pass implementing legislation for the 1884 treaty with Mexico.”).

   [293]. Alfred E. Eckes, Jr., Opening America’s Market: U.S. Foreign Trade Policy Since 1776, at 65 (1995) (quoting S. Journal, 43d Cong., 2d Sess. 857 (1874)).

   [294]. More than half never even got a vote. See VanGrasstek, supra note 203, at 89, 94.

   [295]. These agreements were terminated following the passage of the Tariff Act of 1894, which removed duty-free access for many products.

   [296]. This is one of the few moments in the congressional-executive relationship before 1930 when the President interpreted his mandate broadly and arguably beyond the plain language of the 1890 Act. Congress intervened very quickly. Wilson–Gorman Tariff Act of 1894, ch. 349, § 71, 28 Stat. 509, 569.

   [297]. See Dingley Tariff Act of 1897, ch. 11, § 4, 30 Stat. 151, 204.

   [298]. U.S. Tariff Comm’n, supra note 283, at 21.

   [299]. Payne–Aldrich Tariff Act of 1909, ch. 6, § 3, 36 Stat. 11, 83. Beginning in 1904, a special arrangement allowed for preferential treatment of U.S. imports into Brazil, and in 1903, a treaty was made with Cuba. U.S. Tariff Comm’n, supra note 283, at 21.

   [300]. See Claussen, supra note 12, at 857–917.

   [301]. See id. at 859–60.

   [302]. See generally FCC v. Consumers’ Rsch., 606 U.S. 656, 701 (2025) (Kavanaugh, J., concurring) (commenting that Congress delegates at least in part because it must adapt legislation to “complex conditions involving a host of details with which the national legislature cannot deal directly” (citing A.L.A. Schechter Poultry Corp. v. United States, 295 U. S. 495, 530 (1935) and Panama Refin. Co. v. Ryan, 293 U.S. 388, 421 (1935))).

   [303]. See Claussen, supra note 12, at 868, 890; Esteban Ortiz-Ospina, Diana Beltekian & Max Roser, Trade and Globalization, Our World in Data (2014), https://ourworldindata.org/trade-and-globalization [https://perma.cc/M2EB-55GZ]; Yi Wen & Brian Reinbold, The Evolution of Total Trade in the U.S., Fed. Rsrv. Bank of Saint Louis (Mar. 2, 2020), https://www.stlouisfed.org/on-the-economy/2020/march/evolution-total-trade-us [https://perma.cc/UB6X-ARL5].

   [304]. 2 Emory R. Johnson, T.W. Van Metre, G.G. Huebner & D.S. Hanchett, History of Domestic and Foreign Commerce of the United States 243, 265 (1915).

   [305]. See Claussen, supra note 12, at 857.

   [306]. See id. at 865, 887, 910; Kathleen Claussen, Trade’s Security Exceptionalism, 72 Stan. L. Rev. 1097, 1146, 1161 (2020); Meyer & Sitaraman, supra note 12, at 648–49.

   [307]. See Alexandra Butler, Trump Tariffs: Full List of Countries Hit by U.S. President’s New Trade War Levies, Independent (Aug. 7, 2025) https://www.the-independent.com/news/world/americas/us-politics/trump-tariffs-list-india-canada-china-us-trade-b2803470.html [https://perma.cc/YKK6-R4RP].

   [308]. See Memorandum of Jan. 20, 2025: America First Trade Policy, 90 Fed. Reg. 8471 (Jan. 30, 2025).

   [309]. See Bown, supra note 2.

   [310]. V.O.S. Selections, Inc. v. United States, 772 F. Supp. 3d 1350, 1364 (Ct. Int’l Trade 2025) (per curiam) (noting that “the worldwide tariffs remain[ed] in place at 10 percent” at the time of writing), aff’d in part, vacated in part sub nom., V.O.S. Selections, Inc. v. Trump, 149 F.4th 1312 (Fed. Cir. 2025), aff’d sub nom., Learning Resources, Inc. v. Trump, 146 S. Ct. 628 (2026).

   [311]. Exec. Order No. 14,257, 90 Fed. Reg. 15041 (Apr. 7, 2025) (excepting articles encompassed by 50 U.S.C. 1702(b): steel, aluminum, automobiles, and automotive parts subject to current or future duties imposed pursuant to section 232 of the Trade Expansion Act of 1962; and other products enumerated in Annex II of the order, including: copper, pharmaceuticals, semiconductors, lumber, critical minerals, energy products, and articles from a trading partner subject to the rates set forth in Column 2 of the Harmonized Tariff Schedule of the United States).

   [312]. International Emergency Economic Powers Act, 50 U.S.C. § 1701(a).

   [313]. Exec. Order No. 14,257, 90 Fed. Reg. 15041, 15041 (Apr. 7, 2025).

   [314]. 50 U.S.C. § 1702(a)(1)(B).

   [315]. 50 U.S.C. § 1701; Proclamation No. 10896, 90 Fed. Reg. 9817 (Feb. 18, 2025). The tariffs announced in Proclamation No. 10896 were suspended until March 2025. Fact Sheet: President Donald J. Trump Imposes Tariffs on Imports from Canada, Mexico, and China, White House (Feb. 1, 2025), https://www.whitehouse.gov/fact-sheets/2025/02/fact-sheet-president-donald-j-trump-imposes-tariffs-on-imports-from-canada-mexico-and-china/ [https://perma.cc/4FQH-WRVC].

   [316]. Exec. Order No. 14,245, 90 Fed. Reg. 13829, 13830 (Mar. 27, 2025).

   [317]. Addressing Threats to the United States by the Government of Brazil, Exec. Order No. 14,323, 90 Fed. Reg. 37739 (Aug. 5, 2025); see also Initiation of Section 301 Investigation: Brazil’s Acts, Policies, and Practices, 90 Fed. Reg. 34069, 34070 (July 18, 2025).

   [318]. Addressing Threats to the United States by the Government of the Russian Federation, Exec. Order 14,329, 90 Fed. Reg. 38701 (Aug. 11, 2025).

   [319]. Learning Resources, Inc. v. Trump, 146 S. Ct. 628, 643–44 (2026) (“Our task today is to decide only whether the power to ‘regulate . . . importation,’ as granted to the President in IEEPA, embraces the power to impose tariffs. It does not.”).

   [320]. See Claussen, supra note 306, at 1117–23.

   [321]. See Proclamation No. 10896, 90 Fed. Reg. 9817 (Mar. 5, 2025); Proclamation No. 10908, 90 Fed. Reg. 14705 (Apr. 3, 2025); Proclamation No. 10962, 90 Fed. Reg. 37727 (Aug. 5, 2025); Proclamation 10976, 90 Fed. Reg. 48127 (Oct. 6, 2025); Proclamation No. 10984, 90 Fed. Reg. 48451 (Oct. 22, 2025).

   [322]. See Trade Expansion Act of 1962, 19 U.S.C. § 1862(3)(A). The steel, aluminum, and auto duties are based on Commerce Department investigations from President Trump’s term that the Biden administration elected not to close, thus allowing President Trump to immediately impose these duties upon resuming office. See Julian Arato, Kathleen Claussen & Timothy Meyer, The “America First Trade Policy” in Practice, 119 Am. J. Int’l L. 668, 671 (2025).

   [323]. See, e.g., Exec. Order No. 14,223, 90 Fed. Reg. 11359 (Mar. 6, 2025).

   [324]. Notice of Action: Nicaragua’s Acts, Policies, and Practices Related to Labor Rights, Human Rights and Fundamental Freedoms, and the Rule of Law, 90 Fed. Reg. 57807 (Dec. 12, 2025).

   [325]. Notice of Action and Proposed Action in Section 301 Investigation of China’s Targeting the Maritime, Logistics, and Shipbuilding Sectors for Dominance, Request for Comments, 90 Fed. Reg. 17114 (Apr. 23, 2025).

   [326]. Memorandum of Feb. 21, 2025: Defending American Companies and Innovators from Overseas Extortion and Unfair Fines and Penalties, 90 Fed. Reg. 10685 (Feb. 26, 2025).

   [327]. Exec. Order No. 14,276, 90 Fed. Reg. 16993 (Apr. 22, 2025); see also Notice of Action and Proposed Action in Section 301 Investigation of China’s Targeting the Maritime, Logistics, and Shipbuilding Sectors for Dominance, 90 Fed. Reg. 17114, 17116 (Apr. 23, 2025) (instituting fees on Chinese maritime transport vessels); Colin Grabow, New Shipping Fees and Requirements Pose Fresh Threat to US Economy, Cato Inst. (May 19, 2025), https://www.cato.org/blog/new-shipping-fees-requirements-pose-fresh-threat-us-economy [https://perma.cc/B5DQ-W4E9].

   [328]. 19 U.S.C. § 2411(b)–(c).

   [329]. See Notice of Modification of Section 301 Action: China’s Acts, Policies, and Practices Related to Technology Transfer, Intellectual Property, and Innovation, 83 Fed. Reg. 47974 (Sep. 21, 2018) (increasing duties on select imports from China by 10 percent, with a future increase to 25 percent for the relevant imports) (Trump administration); Notice of Modification: China’s Acts, Policies and Practices Related to Technology Transfer, Intellectual Property and Innovation, 89 Fed. Reg. 76581 (Sep. 18, 2024) (increasing duties on select imports from China, including electric vehicles, battery parts, solar modules, and critical minerals) (Biden administration).

   [330]. Office of the U.S. Trade Representative, Initiation of Section 301 Investigations: Acts, Policies, and Practices of Certain Economies Relating to Structural Excess Capacity and Production in

Manufacturing Sectors (Mar. 11, 2026), https://ustr.gov/sites/default/files/files/Press/Releases/2026/USTR%20301%20FRN%20Industrial%20Excess%20Capacity%203-11-26.pdf [https://perma.cc/GRK9-5AER].

   [331]. Proclamation No. 11012, 91 Fed. Reg. 9339 (Feb. 20, 2026).

   [332]. To determine the status of trade-related lawsuits currently pending against the Trump administration, see Alex Lemonides, Seamus Hughes, Mattathias Schwartz, Lazaro Gamio & Camille Baker, Tracking the Lawsuits Against Trump’s Agenda, N.Y. Times (Jan. 21, 2026), https://www.nytimes.com/interactive/2025/us/trump-administration-lawsuits.html [https://perma.cc/C235-497J].

   [333]. See Claussen & Meyer, supra note 4, at 1971–73 (citing and discussing cases).

   [334]. Am. Inst. Int’l Steel, Inc. v. United States, 806 F. App’x 982, 990 (Fed. Cir. 2020).

   [335]. TransPacific Steel LLC v. United States, 4 F.4th 1306, 1338 (Fed. Cir. 2021) (Reyna, J., dissenting).

   [336]. Learning Resources, Inc. v. Trump, 146 S. Ct. 628, 637–38 (2026).

   [337]. Opening Brief for Appellants, supra note 3, at 1; Oral Argument, Trump v. V.O.S. Selections, Inc., 146 S. Ct. 73 (2025) (No. 2025-1812) (on file with the California Law Review).

   [338]. Opening Brief for Appellants, supra note 3, at 1.

   [339]. Claussen & Meyer, supra note 4.

   [340]. Learning Resources, 146 S. Ct. at 638, 642.

   [341]. Gundy v. United States, 588 U.S. 128, 159 (2019) (Gorsuch, J., dissenting); see also FCC v. Consumers’ Rsch., 606 U.S. 656, 700–01 (2025) (Kavanaugh, J., concurring).

   [342]. Learning Resources, 146 S. Ct. at 642; see also id. at 663 (Gorsuch, J., concurring) (rejecting the claim that the imposition of tariffs involves a matter of overlapping constitutional powers).

   [343]. J.W. Hampton, Jr. & Co. v. United States, 276 U.S. 394, 409 (1928).

   [344]. See, e.g., Fact Sheet: President Donald J. Trump Further Modifies the Reciprocal Tariff Rates, White House (July 31, 2025), https://www.whitehouse.gov/fact-sheets/2025/07/fact-sheet-president-donald-j-trump-further-modifies-the-reciprocal-tariff-rates/ [https://perma.cc/65C4-VFXY].

   [345]. See supra Part IV.B.

   [346]. See Oona A. Hathaway, Curtis A. Bradley & Jack L. Goldsmith, The Failed Transparency Regime for Executive Agreements: An Empirical and Normative Analysis, 134 Harv. L. Rev. 629, 632–33 (2020).

   [347]. See Claussen, supra note 12, at 866.

   [348]. Trade Act of 1974, Pub. L. No. 93-618, § 102(b)(c), 88 Stat. 1978, 1982–83 (1975) (codified as amended at 19 U.S.C. § 2112(b)(1), (c)).

   [349]. Bipartisan Congressional Trade Priorities and Accountability Act of 2015, 19 U.S.C. §§ 4201–4210.

   [350]. See id. at § 4203.

   [351]. See, e.g., Ackerman & Golove, supra note 58.

   [352]. Section 301 of the Trade Act of 1974 authorizes the executive branch to enter into an agreement in the context of a Section 301 investigation to eliminate any burden or restriction on U.S. commerce that results from a trading partner’s actions. See Trade Act of 1974, 19 U.S.C. § 2411(a)(2)(B)(ii)(II) (authorizing the Trade Representative to circumvent mandatory action under subsection (a) upon finding that the foreign country has “agreed to an imminent solution to the burden or restriction on United States commerce that is satisfactory to the Trade Representative”). Section 232 likewise authorizes the President to negotiate an agreement that limits or restricts certain imports. Trade Expansion Act of 1962, 19 U.S.C. § 1862 (c)(1)(A)(ii) (noting that the President may negotiate “an agreement which limits or restricts the importation into, or the exportation to, the United States of the article that threatens to impair national security”).

   [353]. Kathleen Claussen, Trade’s Mini-Deals, 62 Va. J. Int’l L. 315, 326 (2022) (“[T]here are hundreds of trade-related agreements not approved by Congress post-negotiation regardless of their legislative or regulatory effects.”).

   [354]. See Kyla H. Kitamura, Cong. Rsch. Serv., U.S.-Japan Trade Agreements and Tariff Negotiations 1–2 (2025).

   [355]. See Press Release, Pat Toomey, Toomey Statement on Taiwan Trade Discussions (June 2, 2022), https://www.toomey.senate.gov/newsroom/press-releases/toomey-statement-on-taiwan-trade-discussions [https://perma.cc/3S3C-H8B7]; Hans Nichols, Biden to Offer New Economic Framework for Latin America, Axios (June 6, 2022), https://www.axios.com/2022/06/06/biden-to-offer-new-economic-framework-for-latin-america [https://perma.cc/7526-3EER].

   [356]. United States-Taiwan Initiative on 21st-Century Trade First Agreement Implementation Act, Pub. L. No. 118-13, § 7(3)(b), (e), 137 Stat. 63, 66–67 (2023) (codified at 19 U.S.C. § 2112 note).

   [357]. See Joe Biden, Statement from President Joe Biden on H.R. 4004, the United States-Taiwan Initiative on 21st-Century Trade First Agreement Implementation Act, White House (Aug. 7, 2023), https://bidenwhitehouse.archives.gov/briefing-room/statements-releases/2023/08/07/statement-from-president-joe-biden-on-h-r-4004-the-united-states-taiwan-initiative-on-21st-century-trade-first-agreement-implementation-act/ [https://perma.cc/4CP6-VD68].

   [358]. Megan Messerly, Daniel Desrochers & Ari Hawkins, Trump Wanted ‘90 Deals in 90 Days.’ Instead, He’s Finding Wins Where He Can, Politico (June 12, 2025), https://www.politico.com/news/2025/06/12/trump-wanted-90-deals-in-90-days-instead-hes-finding-wins-where-he-can-00403638 [https://perma.cc/78KF-E868].

   [359]. See Jamieson Greer, U.S. Trade Representative, Written Responses to Questions for the Record from Mike Crapo, Chairman of the Senate Comm. on Fin., The President’s 2025 Trade Policy Agenda (Apr. 8, 2025), https://www.finance.senate.gov/download/responses-to-questions-for-the-record-to-jamieson-greer [https://perma.cc/SZ93-TNPV].

   [360]. See Fact Sheet: Implementing the General Terms of the U.S.-U.K. Economic Prosperity Deal, White House (June 17, 2025), https://www.whitehouse.gov/fact-sheets/2025/06/fact-sheet-implementing-the-general-terms-of-the-u-s-uk-economic-prosperity-deal/ [https://perma.cc/5BLM-AVUK]. At the time of writing, no written binding international agreement had been completed.

   [361]. See Kevin Breuninger, U.S.-China Trade Talks End Without Extension of Tariff Truce, As Trump Weighs Options, CNBC (July 29, 2025), https://www.cnbc.com/2025/07/29/trump-china-trade-tariffs-bessent.html [https://perma.cc/HUD2-ZMT9]; Arendse Huld, Trump Raises Tariffs on China to 145%—Overview and Trade Implications, China Briefing (Apr. 11, 2025), https://www.china-briefing.com/news/trump-raises-tariffs-on-china-to-145-overview-and-trade-implications/ [https://perma.cc/S5VU-UV5U]; Lewis Jackson & Amy Lv, China’s Export Controls Are Curbing Critical Mineral Shipments to the World, Reuters (Apr. 21, 2025), https://www.reuters.com/world/china/chinas-export-controls-are-curbing-critical-mineral-shipments-world-2025-04-20/ [https://perma.cc/65LM-VRVN].

   [362]. Hannah Miao & Chun Han Wong, U.S., China Sound Confident Note After Trade Talks, Wall St. J. (Oct. 26, 2025), https://www.wsj.com/world/china/bessent-sounds-confident-note-after-trade-talks-with-china-f09d310d [https://perma.cc/C2GJ-CHW7].

   [363]. Fact Sheet, supra note 344.

   [364]. 19 U.S.C. § 2171(c)(1)(C); see also Ari Hawkins & Doug Palmer, Greer Defends USTR authority over trade deals, Politico (Feb. 6, 2025), https://subscriber.politicopro.com/article/2025/02/greer-defends-ustr-authority-over-trade-deals-002-02874 [https://perma.cc/LF9A-7QRG] (quoting U.S. Trade Representative Jamieson Greer as saying “With respect to trade authority in the United States government, my statute is the statute. It designates the Office of U.S. Trade Representative as the chief trade negotiator, negotiating trade deals”).

   [365]. See Claussen, supra note 353, at 353.

   [366]. See id.

   [367]. Kathleen Claussen, Trade Transparency: A Call for Surfacing Unseen Deals, 122 Colum. L. Rev. F. 1, 2, 3–7 (2022).

   [368]. See supra Parts III & IV.

   [369]. See supra Part II.B.

   [370]. A third response to these critiques advanced by the prior two administrations is that Congress has consented to the executive branch’s entrance into trade agreements based on delegated authorities, such as the statute that created the Office of the U.S. Trade Representative, 19 U.S.C. § 2171, originally part of the Trade Act of 1974, or Section 103(a), also of the Trade Act of 1974. Relying on these statutes to justify such an approach concedes that Congress must consent to trade agreements. But rather than refer to Congress’s silence, proponents point to the statutes as an implicit delegation not only to negotiate but also to conclude agreements. Given that Congress has expressly given and taken away trade agreement authority to and from the executive for more than a century, relying on such an implicit delegation seems to go too far.

   [371]. Greer, supra note 359, at 23.

   [372]. Harold Hongju Koh, Triptych’s End: A Better Framework to Evaluate 21st Century International Lawmaking, 126 Yale L.J.F. 337, 342 (2017).

   [373]. U.S. Const. art. I, § 8.

   [374]. See, e.g., 19 U.S.C. § 3521(c) (limiting duty increases to countries that are not members of the World Trade Organization and limiting the increases to the base or bound tariff rates listed in Schedule XX).

   [375]. See Clinton v. New York, 524 U.S. 417, 448–49 (1998) (holding the line-item veto unconstitutional because it repeals legislation without going through bicameralism and presentment).

   [376]. Cong. Rsch. Serv., 106th Cong., Treaties and Other International Agreements: The Role of the United States Senate 199 (Comm. Print 2001).

   [377]. Andrew Restuccia, Doug Palmer & Adam Behsudi, Trump Says He Will Withdraw from NAFTA, Pressuring Congress to Approve New Trade Deal, Politico (Dec. 2, 2018), https://www.politico.com/story/2018/12/02/trump-trade-canada-mexico-1006164 [https://perma.cc/JS2Y-UF3M].

   [378]. Curtis A. Bradley, Exiting Congressional-Executive Agreements, 67 Duke L.J. 1615, 1629 (2018). Other commentators disagreed. See, e.g., John C. Yoo, Laws as Treaties?: The Constitutionality of Congressional-Executive Agreements, 99 Mich. L. Rev. 757, 815 (2001) (“[Interchangeability] would be tantamount to granting the President a direct share of the legislative power—a result . . . that is at odds with our understanding of the executive power.”); Joel P. Trachtman, Power to Terminate U.S. Trade Agreements, 51 Int’l Law. 445, 447 (2018) (“[U]nilateral Presidential power to terminate these regimes will upset the balance of powers between the executive and legislative branches that exists today, and that was envisaged by the framers of the Constitution.”). Although the Supreme Court has never held that the President may withdraw from Article II treaties without Congressional consent, since the twentieth century the executive branch has presumed the President possesses such a power, and the majority of commentators have agreed.

   [379]. Authority to Withdraw from the North American Free Trade Agreement, 42 Op. O.L.C. 133, 147 (2018).

   [380]. Id. at 151 (quoting Prohibition of Spending for Engagement of the Office of Science and Technology Policy with China, 35 Op. O.L.C. 116, 120 (2011)).

   [381]. Id.

   [382]. See supra Part IV.B.

   [383]. Exec. Order No. 14,209, 90 Fed. Reg. 9587 (Feb. 14, 2025); Exec. Order No. 14,166, 90 Fed. Reg. 8611 (Jan. 30, 2025).

   [384]. U.S. Dep’t of State, Public Notice 12682, 90 Fed. Reg. 12200, 12200 (Mar. 14, 2025).

   [385]. Id.

   [386]. Id.

   [387]. See Elena Chachko, Kathleen Claussen & David Zaring, Off. of the Chair, Admin. Conf. of the U.S., International Regulatory Cooperation in Agency Practice: Assessment and Best Practices (2025), https://www.acus.gov/sites/default/files/documents/IRC-Final-Report-2025.pdf [https://perma.cc/7MQA-99NT].