Who sets US tariffs, the president or Congress? What the 2026 midterms can change for importers

Congress holds the tariff power under the Constitution, but most tariffs in force today were set by the executive branch under laws Congress passed. The midterm elections on November 3, 2026 decide who sits in Congress from January 3, 2027. Here is what that can and cannot change for the duties you pay, without the politics.

For: ImportersAmazon sellersSmall businesses

Some links on this page are affiliate links: if you sign up through one, we may earn a commission at no extra cost to you. It never decides what we report.

Who has the power to set tariffs in the US?

Congress does, on paper. Article I, Section 8 of the Constitution gives Congress the power "To lay and collect Taxes, Duties, Imposts and Excises" and "To regulate Commerce with foreign Nations" (Constitution Annotated).

In practice, Congress has written laws that hand defined tariff powers to the executive branch. The rate you pay on a product from China today comes from the Harmonized Tariff Schedule set by Congress plus the layers added under these laws.

Which laws let the president add tariffs?

Sources: Section 232, Section 301, Section 201, Section 122 (US Code via Cornell LII).

What changed in 2026?

• February 20: the Supreme Court held in Learning Resources, Inc. v. Trump that the International Emergency Economic Powers Act (IEEPA) does not authorize tariffs. Importers who paid those tariffs are owed refunds (see our tariff refund guide).
• February 24 to July 24: a 10% Section 122 surcharge applied under Proclamation 11012. Section 122 caps such a surcharge at 150 days unless Congress extends it by law, and it ended on July 24.
• Since July 24: a 12.5% Section 301 tariff applies to most goods from China, on top of the earlier Section 301 lists (see the China tariffs tracker).

What can the 2026 midterms change?

On November 3, 2026 voters elect all 435 members of the House and 35 senators (33 regular seats plus 2 special elections, per Ballotpedia). The new Congress meets on January 3, 2027 under the 20th Amendment.

Whatever the result, Congress affects tariffs in a few defined ways:

• Pass a law that sets, limits, extends or ends a tariff or a tariff authority. A bill needs both chambers and the president's signature, or a two-thirds vote in each chamber to override a veto.
• Extend a Section 122 surcharge beyond 150 days, which only an Act of Congress can do.
• End a national emergency by a joint resolution under the National Emergencies Act. Since the February ruling, IEEPA is no longer a basis for tariffs, so this matters less for duties than before.
• Hold hearings and ask questions of USTR and Commerce about tariff actions and exclusions.

What will not change on election night?

• No tariff changes on November 4. Election results do not change any rate by themselves.
• Section 301 and Section 232 tariffs stay unless the executive branch changes them, a court rules against them, or a new law passes.
• Scheduled dates still apply: 178 Section 301 exclusions on Chinese goods end at 11:59 p.m. ET on November 9, 2026 (deadlines tracker). The US-China truce was reported by the Treasury Secretary to run to January 10, 2027; we will add the official notice when it is published.

What should importers do before and after the midterms?

1. Price on today's rates. Quote and reorder on the duties in force now, not on a guess about the election.
2. Check your exclusions before November 9. If one of your HTS codes loses an exclusion, your duty can rise by 25 points that night.
3. Keep entry records tidy. Refund claims and any future changes depend on clean importer-of-record data.
4. Know where your goods are made. Origin, not the brand's home, decides which tariffs apply (see our Canton Fair piece).
5. Run the numbers in the landed cost calculator for your top products.

General information, not legal, tax or customs advice. Rules change often: check the official sources above or a licensed customs broker before you act. SuanSupply is not affiliated with any government agency or marketplace named here.