It is long past time for Congress to reclaim from the president the authority to levy tariffs at his own discretion.
It is also time for a victim of the tariffs to file suit challenging the constitutionality of the president’s existing authority.
The assertions above are catalyzed by the belief that President Trump’s imposition of tariffs is an ongoing disaster. But even if these tariffs were actually good policy, they should still be the prerogative of Congress should take back its authority either way. The Constitution does not give the executive the unilateral power to lay taxes on the American people. Congress never should have ceded the power, which is against the Constitution’s spirit and letter.
On the legislative front, a new coalition of industry groups is pushing Congress to pass a law reining in presidential tariff-levying powers. A number of lawmakers are pushing various proposals to do so. The conservative Heritage Foundation suggests that the power should be entirely abolished. What is baffling, though, is the lack of court challenges against the delegation of that power to the president in the first place.
The delegation of this authority is a relatively recent thing, having come 57 years ago via through one small section of the Trade Expansion Act of 1962. Section 232 (as subsequently slightly amended) provides that if the president, on the advice of the Commerce Department, determines that if particular imported goods somehow threaten national security, he can ban their import or impose tariffs or quotas on them. The section does not require him to secure Congress’ approval.
In 54 years, presidents had used that power only six times. Trump, however, has used it repeatedly, against multiple products from multiple nations. In doing so, he has vastly expanded the ordinary meaning of “national security” to include virtually any perceived harm to the economic interests of the United States. Such expansive interpretations of “national security” are themselves objectionable, being clearly outside the original spirit of Congress’ delegation of power as a Cold War measure.
The question should arise, however, whether the delegation was legitimate from the start.
The Constitution provides that “all bills for raising revenue shall original in the House of Representatives.” Moreover, only “the Congress shall have power to lay and collect taxes, duties, imposts, and excises” and to “regulate commerce with foreign nations.” (“Duties” are a type of tax synonymous with “tariffs.”)
Nowhere does the Constitution even hint at giving the president unilateral authority to lay any sort of tax or duty or to regulate commerce.
It is true that for years Congress has delegated various powers to the discretion of the executive branch. In most cases, those delegations have involved mere details, with Congress making fairly clear what its law entails but leaving specifics on how to implement it, via regulatory authority, to the executive bureaucracy. These other delegations, however, usually don’t cede core congressional powers to the president.
As cited above, the powers to tax and to regulate commerce with foreign nations are core constitutional roles of Congress. Unlike most issues of delegated authority, they include not merely matters of interpreting Congress’ slightly ambiguous will, but instead the forfeiture of entire congressional prerogatives specifically delineated in the Constitution. Because (as courts later explained) “the power to tax is the power to destroy,” the Constitution’s drafters quite carefully ensured that only the duly elected representatives of the people, acting through deliberative, legislative processes, could impose taxes on them.
As it is, there is a serious move afoot at the Supreme Court to revivify the so-called “nondelegation doctrine,” whereby even some of the lesser assumptions of powers by the bureaucracy are cast into doubt if they unduly exhibit powers properly seen as legislative rather than merely administrative. In the Gundy v. United States case decided in June, a close reading of the opinions makes evident that only the inability of Justice Brett Kavanaugh to participate in the case (it was argued before he was sworn in) kept the nondelegation doctrine from being strongly applied again.
Conservative justices have made clear they are willing to reconsider both the “Chevron doctrine” and the semi-related “Auer deference” whereby the courts previously refused to intervene to stop bureaucratic assumptions of powers that appear legislative in nature.
If Chevron and Auer are on the rocks anyway, involving much lesser and more ambiguous divisions of responsibility than the major constitutional power of taxation, it stands to reason that this unilateral presidential tariff authority should be challengeable, and overturnable, in court.
The delegation of the power is itself abusive, on its face, of constitutional design. Trump’s expansive use of it is not just abusive, but abominably so. It should not stand.