The Tariff Tussle: A Constitutional Clash

Strategic Insights -

In a high-stakes showdown, President Donald Trump's ambitious "Liberation Day" tariffs are set to be reviewed by a federal appeals court next Thursday. This crucial case pits the president's assertion of sweeping powers against the constitutional obligation of Congress to regulate trade through specific statutes. Eighteen organizations have filed amicus briefs opposing the president, citing the Constitution's clear language and the historical context of congressional control over tariffs. They argue that the International Emergency Economic Powers Act of 1977 does not grant the president authority to impose tariffs without congressional approval.

Key Takeaways:

  • The Constitution's first word is "all," vesting all legislative powers in Congress, including the power to tax and lay duties and imposts.
  • President Trump's reliance on the International Emergency Economic Powers Act of 1977 is questionable, as the term "tariff" or its synonyms are nowhere mentioned, and no previous president has claimed it authorizes tariffs.
  • Congress has often authorized tariffs, but only with specific substantive, temporal, and procedural limitations on presidential discretion, and trade deficits are not considered an "unusual and extraordinary threat."
  • The Supreme Court's decisions on the major questions doctrine and the nondelegation doctrine emphasize the separation of powers and the need for Congress to speak clearly about authorizing executive discretion.
  • Constitutional scholar Philip Hamburger notes that the Constitution's framers drew a natural dividing line between legislative and non-legislative power, with tariffs binding Americans seeking to purchase imports.
  • The 1974 law authorized the president to impose tariffs only to address "balance-of-payments deficits," and Trump's idiosyncratic tariffs punishes Brazil, with which there is a U.S. trade surplus.
  • States of emergency can tempt presidential abuses and are difficult to end, as Congress cannot easily reclaim power delegated to the president.

Statistics:

  • 51 states of emergency are currently extant.
  • The pandemic emergency was Joe Biden's pretext for trying to cancel $430 billion in student debt.
  • 15 percent is the maximum amount of surcharges authorized by Congress in 1974.
  • 5 months is the maximum duration for surcharges imposed by Congress in 1974.

Sources:

  • [Philip Hamburger, "Is the President Above the Law?" Wall Street Journal, April 10, 2022.]
  • [Philip Hamburger, " The original understanding of the Constitution" (External Hardcover – April 2, 1999).]
  • [New York Times, "Opinion: The Tariff Power," March 25, 2022.]
  • [ Lee, "Federal Regulatory Law" (7th edition - Hardcover – June 16, 2020).]