A Congressman interviewed on NPR today said Congress had the power to levy tariffs. But the President has been doing it left and right. What’s up? Yes, Article I, Section 8 of the Constitution says:
The Congress shall have the Power to lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States.
However, it turns out there are loopholes, like National Security, and that is what Trump is using. There have been four (4) pieces of congressional legislation which allow the President to adjust tariffs. More details are here.
- Through the Trading With the Enemy Act of 1917, the president can impose a tariff during a time of war. But the country doesn’t need to be at war with a specific country — just generally somewhere where the tariffs would apply.
- The Trade Act of 1974 allows the president to implement a 15 percent tariff for 150 days if there is “an adverse impact on national security from imports.” After 150 days, the trade policy would need congressional approval.
- There’s the International Emergency Economic Powers Act of 1977, which would allow the president to implement tariffs during a national emergency.
- Trump’s White House cited Section 232 of the Trade Expansion Act of 1962, a provision that gives the secretary of commerce the authority to investigate and determine the impacts of any import on the national security of the United States — and the president the power to adjust tariffs accordingly.
Finally, a more qualitative discussion of the abuses of power and corruption resulting from tariffs is given in this National Review Article. For example,
FDR brought with him to office the old Democratic favoritism toward free trade, but also decidedly Wilsonian views on the relations between president and Congress. He encouraged Congress to transfer authority on trade matters (as well as most regulatory matters!) to him. This time, the legislature agreed. It was as if Congress threw up its hands in exasperation and said to the president, “We cannot handle our authority responsibly. Please take it off our hands, for we will screw things up and lose reelection.”
And what is most disturbing is the conclusion supported by that article:
“more worrisome for republican government than whatever effects, great or small, Trump’s decision on steel and aluminum ultimately generate. It is not just that the president has the power to level tariffs unilaterally. It is not just that Congress handed it over. It is that Congress, the branch of the people, handed it over because it screwed it up, again and again. A republic requires a legislature that can handle such tasks, and we simply do not have one.“