Throughout the rambling campaign that will put him in the White House come January, president-elect Donald Trump gave scant specifics for what he would do in office. On trade policy, however, he produced a surplus of specifics. Trump promised a tariff of 10% — or maybe 20% — on all imported goods. Except for those one sixth of imports that come from China, which would see 60% tariffs — or maybe 100%.
Should he fulfill his pledge, Trump will oversee the third consecutive administration that raises Americans’ taxes by charging them extra money on foreign purchases. The first Trump administration collected $89 billion from tariffs on foreign products. President Biden raised another $144 billion by keeping Trump’s tariffs in place and creating new ones. Yet neither president received congressional approval for any of these taxes. They imposed them unilaterally, contradicting the plain text of the Constitution.
Article I of the Constitution grants Congress, not the president, the sole power to “lay and collect Taxes, Duties, Imposts and Excises.” How, then, could the president raise tariffs (another word for duties) on his own? The answer is that Congress delegated broad swaths of tariff-setting authority to the executive branch in a series of 20th century laws. That is why, although Congress has not increased import duties since 1930, the list of federal tariffs now contains over 4,440 pages.
Such laws are stunningly vague in outlining which circumstances trade barriers may be imposed. Section 301 of the 1974 trade act empowers the president to slap tariffs on countries that enact “unreasonable” or “unjustifiable” policies that “burden U.S. commerce.” Crystal clear. Section 232 of the 1962 Trade Expansion Act permits him to raise duties on imports which “threaten to impair U.S. national security.” Trump successfully applied this precise criteria to steel and aluminum imports in 2018, despite the fact that U.S. military consumption of each material accounts for a whopping 3% of domestic production.
This delegation of taxing power is made possible by longstanding court precedent that Congress may give the president the power to raise tariffs, so long as it attaches a guiding “intelligible principle” to which he is required to conform. But the rules which supposedly “guide” the president are usually so indefinite as to be unintelligible.
What exactly qualifies as a threat to “national security”? What constitutes a “burden” on American commerce? Nobody knows — and therefore, nobody can refute the president when he claims to know. Even the libertarian CATO Institute admits that laws including such language “authorize the president to impose tariffs on a wide range of imported goods” without limitation.
To their credit, certain lawmakers are willing to admit that they have erred by relinquishing their taxing powers to a runaway executive. Sen. Chuck Grassley of Iowa — now the longest-serving congressional Republican in history — says that Congress “violated the Constitution” by handing over unchecked tariff authority. He is correct, as the legislature was contrived to be the preeminent branch of government. Just as the president cannot set the rates of federal income tax, he should not be allowed to determine tax rates on imports either.
Sen. Rand Paul of Kentucky agrees, and wishes to remedy this constitutional perversion with his “No Taxation Without Representation Act.” Although the president could still propose new tariffs, Paul would require Congress to pass them into law before taking effect. The title of his bill harkens back to the unofficial slogan of the American Revolution, when patriots threw tea into the ocean to protest duties enacted by Great Britain. Like Paul, those colonists demanded representation as the just precondition for taxation.
Attempts by legislators to reclaim tariff authority are admirable but unlikely to pass, as Congress is always happy to shift responsibility off its own shoulders. Instead, courts must do the job by reviving the long-dormant “nondelegation doctrine.”
This constitutional principle holds that Congress cannot delegate away its essential legislative powers. And literally the first power entrusted to Congress by the Constitution is to collect taxes and duties. Hence, Congress cannot simply surrender its authority to enact tariffs when it pleases.
If Donald Trump does try to impose sweeping tariffs without congressional approval, the Supreme Court should agree to hear a legal challenge. The Justices will then have the opportunity to continue their fabulous trend of reining in executive decrees and forcing legislators to actually legislate. Their final ruling should be as follows: The Constitution permits only Congress to raise taxes. Last time we checked, tariffs are indeed taxes and the president is not Congress.