John Eastman makes sweeping claims in his recent article on President Trump’s emergency tariffs. The Supreme Court’s conservatives split on the issue—specifically over whether Congress’s delegation of authority in the International Emergency Economic Powers Act (IEEPA) was legitimate. Eastman, however, argues that no congressional delegation is necessary at all. In his view, the executive possesses an “inherent authority over foreign policy.”
Eastman grounds this claim in Article II, asserting that “the president has the core responsibility for foreign policy.” He then invokes United States v. Curtiss-Wright Export Corp. (1936), where Justice Sutherland—drawing on a statement by John Marshall—wrote that, “The President is the sole organ of the nation in its external relations, and its sole representative with foreign nations.”
From this, Eastman concludes that the president holds plenary, inherent, and independent authority in foreign affairs. With respect to tariffs, he argues they can wear two “hats”—one as a tax and the other as a tool of foreign policy. “President Trump’s imposition of tariffs was clearly the latter,” he writes, and because foreign policy falls within the president’s domain, Trump may impose them regardless of congressional authorization.
This argument, however, is unfounded and would expand executive authority beyond any reasonable limit.
First, the supposed “core responsibility for foreign policy” is vague and not grounded in Article II. Aside from appointing officers and serving as Commander-in-Chief, the Constitution’s explicit foreign-affairs power granted to the executive is the authority “to make Treaties, provided two thirds of the Senators present concur.” This power is not independent of Congress. Under the separation of powers, a treaty negotiated by the president does not become law until ratified by the Senate. This aligns with the Constitution’s clear structure: Congress makes laws, and the president executes them. Article I states unambiguously that, “All legislative Powers herein granted shall be vested in a Congress of the United States”—not in the executive.
Chief Justice Roberts likely avoids citing Curtiss-Wright because Sutherland’s opinion is difficult to reconcile with the Constitution’s text. Sutherland claimed that the federal government’s foreign-affairs powers differ fundamentally from its domestic powers, and that the principles of enumerated powers and the necessary and proper clause applies only to internal affairs. He further asserted that the president possesses “delicate, plenary and exclusive” authority in foreign affairs—power that “does not require as a basis for its exercise an act of Congress.”
For Sutherland and Eastman, then, the president wields inherent, plenary, and exclusive powers nowhere mentioned in the Constitution, derived instead from the idea that he is the nation’s “sole organ” in foreign affairs. But this reading misinterprets Marshall’s original statement, which referred not to an independent source of presidential power but to the president’s role as the nation’s representative and communicator in foreign relations. Marshall was describing President Adams’s duty to enforce the Jay Treaty—a treaty that had been duly ratified by the Senate.
The Constitution therefore does not grant the president exclusive or plenary authority over foreign affairs. The president executes the laws and represents the nation abroad, but the power to enact laws—including those governing foreign policy—remains with Congress.
Second, Eastman’s claim that tariffs can wear two “hats” does not change their constitutional character. While tariffs and taxes may serve purposes beyond revenue-raising, they remain taxes. A tax on whiskey or gasoline designed to discourage consumption is still a tax. And just as the power to make law resides with Congress, so too does the power to tax.
If Eastman’s argument were correct, what limits would remain on executive power in foreign affairs? Could the president declare and wage war without congressional authorization? Could he raise income tax rates or seize private property to fund military operations? Could he nationalize industries to “secure” supply chains? Once the executive is permitted to bypass Congress whenever foreign affairs are invoked, the separation of powers collapses.
Eastman’s argument relies on importing broad, extra-constitutional principles to justify particular political goals. It is inconsistent with the framers’ intentions and with the Constitution’s basic structure. One may sympathize with a president’s policy goals while still insisting that they be pursued in a manner that respects the Constitution and the separation of powers.
