Sorry, Mr. President: If You Want Tariffs, You Need Congress

P resident Trump is understandably angry that the Court of International Trade has invalidated most of his sweeping tariffs. He should nevertheless do what the court says the Constitution requires and ask Congress to enact them into law.

The court’s ruling was a simple matter of applying well-settled constitutional law regarding the separation of powers. The Constitution clearly says that Congress, not the president, has the authority to levy tariffs. 

Congress can theoretically delegate that power to the president, but it can only do so in accord with a court-developed set of rules called the “nondelegation doctrine.” That doctrine allows an executive agency to enact laws if Congress has clearly indicated their intent for that entity to do so and if that delegation includes a clear limitation on the exercise of that delegated power.

Congress’s delegation of much of its power over the nation’s environmental laws to the Environmental Protection Agency is an example of how this works. The laws delegating the authority to set clean air and water standards to the EPA expressly does so and provides instructions on what factors the agency must consider in setting them.

The EPA’s specific rules can be challenged in court for erroneous procedure in their adoption or for acting outside of the limits of their delegated power, but its basic right to make those decisions is not in dispute.

Trump’s tariff declarations, however, have neither of these key elements of delegation doctrine. Congress has not passed a sweeping statute giving the president the right to set tariffs for every nation and every good or service. There is thus no clear intent from Congress to grant the executive branch power to enact what was, at the time of the Founding, considered to be the most powerful revenue-raising tool at the federal government’s disposal.

Trump’s claim that he can enact globally applicable tariffs under authority granted to him by the International Emergency Economic Powers Act of 1977 is also ill-founded. But that law did not expressly delegate any tariff-setting authority, nor has any president ever invoked that statute to set tariffs. The clear intent necessary to justify a delegation of congressional powers is thus absent.

His contention that persistent trade deficits constitute an emergency under the meaning of the act is also specious. Such deficits are extremely troublesome, but they are neither new nor unexpected, two elements normally needed to declare an emergency. 

If trade deficits qualify as an emergency that permits presidents to unilaterally declare drastic provisions that affect the whole economy, a Democratic president could impose massive energy controls under the aegis that we suffer from a “climate emergency.” Republicans would surely oppose that as an improper exercise of executive power, but Trump’s tariff declaration stands on essentially the same flimsy ground.

Asking Congress to grant him tariff authority clearly injects uncertainty into Trump’s plans, but getting such authority also places him on much firmer political ground going forward.

Trump’s tariffs currently suffer from their lack of buy-in from other branches of the government. This fact means tariff opponents are regularly lobbying Congress to block them or otherwise impede their implementation.

Without a clear push from Trump to put tariffs at the center of his economic plan, congressional Republicans are given license to oppose him on these while pledging fealty to Trump. That weakens Trump in his negotiations and contributes to the decline in his job approval ratings that have thus far accompanied his tariff announcements.

Getting Republicans in Congress on board, however, would reduce both problems. Tariff opponents within the GOP would then know that their stance could endanger their standing with the president — and up the chance that he backs a primary challenger against them in the midterms.

Congressional enactment of tariffs would also show other nations that they cannot wait the president out. It’s very hard to enact a law, which is why Trump would prefer executive action, but it’s also very hard to undo one. Once passed, the tariffs would stay put as long as Trump sits in the Oval Office, no matter what courts say.

That fact means Trump can strike a great deal for the country.

Including tariffs in the reconciliation bill would also help rebut the charge that the bill adds to the deficit. Tariffs would raise a lot of money, depending on the level set. The Committee for a Responsible Federal Budget estimates that a baseline 10 percent tariff on all imported goods would raise $1.6 trillion over ten years, while a 20 percent tariff would raise $2.9 trillion.

Trump has wanted the United States to impose tariffs for all of his active political life. It’s understandable that he is impatient to realize his dream, but he’s on better legal and political ground if he gets Congress to take the tariff leap with him.