Or anywhere else.
Or anywhere else
A nother week, another unconstitutional Trump administration scheme to monetize government power with no approval from Congress, the branch of government in which revenue-raising authority is vested. Of all the lawlessness we will rue once Democrats eventually win the White House and exploit the Trump precedents, these schemes will rank with the normalization of lawfare as the most pernicious. And when Republicans conveniently “find their voice” to complain about a Democratic president’s lawlessness, no one will give them the time of day because they remain silent now.
The new scheme involves tolling of the Strait of Hormuz by the United States.
The president had a fit of pique Saturday because Iran announced it was once again closing the strait. This was not just predictable but widely predicted.
In capitulating to Iran, the Trump memorandum of understanding begins by committing to end the fighting in Lebanon. This, notwithstanding that (a) our ally, Israel, is fighting a defensive war at and across its Lebanese border with Hezbollah, which besides being Iran’s jihadist militia is a designated foreign terrorist organization under U.S. law due to its killing of Americans; (b) our forces have not been fighting Hezbollah in Lebanon — they’ve been fighting Iran in and around Iran; (c) Israel is a sovereign nation that is not a party to the MOU; and (d) the Israeli government is determined to quell the existential Iran/Hezbollah threat which has displaced thousands of its citizens (Hezbollah having immediately attacked northern Israel after another Iranian jihadist proxy, Hamas — which is also a designated foreign terrorist organization under U.S. law — launched the October 7, 2023, war from Gaza).
As I’ve contended (and I’m hardly alone in this), Iran’s objective here is to use the United States as a shield to protect the Hezbollah terrorists from Israel’s defense forces, and to further undermine the American/Israeli alliance. The alliance is already eroded thanks to the Democratic base’s longstanding incorporation of Islamists, whose sharia supremacist principles abominate the Jewish state; with that accomplished, Iran is now stoking the antisemitism of a small but influential faction of Trump’s political base.
Having thus set up the MOU chessboard, Iran’s strategy is simple: Prompt Hezbollah to attack Israel despite the farcical “cease-fire”; Israel will respond, as it must; Iran then announces it is closing the strait again because Trump has failed to rein in Israel.
Trump responded disgracefully to the early iterations of this strategy, bashing Prime Minister Benjamin Netanyahu for being overly aggressive and falsely claiming that Israel was wreaking reckless, disproportionate damage in response to puny Hezbollah provocations. (Putting aside the Trump administration’s persistent distortion of the law-of-war concept of proportionality, Hezbollah has viciously attacked Israeli territory for years — we would not tolerate any attacks on our territory — and Israel’s armed forces are well known for the extraordinary measures they take to minimize civilian casualties, even though they are fighting terrorists who use civilians and civilian infrastructure as shields.)
As is reliably the case, the administration shifted its rhetoric when there was blowback for the president’s irresponsible remarks. Trump’s latest tack is to go back to threatening renewed bombings of Iran (as he has done repeatedly since his April declaration of a cease-fire, during which there was little cessation of firing and blockades — acts of war — persisted). Moreover, he has announced that the United States might impose tolls on shipping through the Hormuz Strait.
Saturday, in a Truth Social post (what else?), the president asserted:
There will be NO TOLLS in the Hormuz Strait for 60 days during the Cease Fire Period [set out in the MOU], and there will be NO TOLLS after the 60 day period has expired, unless they are imposed by and for the United States of America, should the deal not be completed [emphasis added], for services rendered as the Guardian Angel to the countries of the Middle East for purposes of both past, present, and future reimbursement of costs. Thank you for your attention to this matter!!! President DJT
Senator Lindsey Graham (R., S.C.) has echoed this threat. Yet, at the moment, it’s all Senator Graham and other Trump congressional allies can do to fight off resolutions — mainly pushed by Democrats, with a smattering of Republicans — calling for the president to end all military action against Iran. As Graham acknowledges, the use of considerable force would be necessary to take control of the strait. As he doesn’t acknowledge, unwillingness to risk the casualties and costs of such a use of force is the reason the president agreed to a capitulatory MOU.
In any event, the president has no unilateral authority to raise revenue, much less to use the United States armed forces to do so.
The reason for the proposed anti-war resolutions just alluded to is that there is controversy over whether Trump has the constitutional authority to deploy the armed forces at all. He never obtained, or even sought, an authorization for the use of military force. (For what it’s worth, I’ve opined that he should have sought an AUMF and that Congress should have voted up or down on one even if he didn’t ask. The president probably had legal authority based on prior congressional acts, although he should not have invaded without a new AUMF given the weighty counterarguments — legal and political.)
Still, regardless of whether Trump has legitimate power to deploy forces and conduct warfare (including blockades), he cannot legitimately toll the strait.
The Constitution does not give the president the unilateral power to impose tolls, just as it does not give the president the power to impose tariffs (and other taxes), to charge fees for executing the laws (which the president must do as a matter of constitutional duty, not financial remuneration), to constructively confiscate another country’s assets and hold them (or any resulting revenue) in a foreign account outside the Congress’s oversight, or to unilaterally demand a cut for the government of a private business’s equity, exports, or revenues.
Trump may be a businessman, but the United States government is not a business. Primarily, the Constitution safeguards liberty, including economic liberty and private property, by separating and sharply limiting the government’s powers. The executive branch is not the revenue-raising arm of the government, even if the president believes the United States has been a patsy for failing to seize oil and otherwise charge countries for what he sees as services rendered. The purpose of alliances and international agreements is to protect vital American interests and project American power, not to generate income for the government (and the business cronies of government officials).
To repeat what I’ve previously related:
The Anti-Deficiency Act (see Sections 1341 et seq. of Title 31, U.S. Code) has long been construed to bar the executive branch from augmenting the appropriations it gets from Congress through revenue-raising devices that Congress has not authorized (and also, it should be noted, from spending such revenue in a manner not prescribed by Congress . . .).
The Government Accountability Office has explained the non-augmentation principle in its guidance manual (Principles of Federal Appropriations, 3rd Ed., Vol II (2006), at pp. 6-162-63). The Constitution vests Congress with the power to determine the funding level for executive agencies; therefore: “To permit an agency to operate beyond this level with funds derived from some other source without specific congressional sanction would amount to a usurpation of the congressional prerogative.”
GAO elaborates by citing one of its own rulings (from 2004): “An agency cannot, absent statutory authorization, operate beyond the level that can be paid for by its appropriations. An agency may not circumvent these limitations by augmenting its appropriations from sources outside the government. One of the objectives of these limitations is to prevent agencies from avoiding or usurping Congress’ ‘power of the purse.’”
The vital American interest at stake right now in the Persian Gulf is freedom of the seas. The free transit of goods enriches the American people, not the American government, by increasing consumer choices, lowering costs, and generating income (which the government taxes, pursuant to Congress’s laws).
The Hormuz Strait was not tolled until President Trump unilaterally started a war without seeking public support, without seeking congressional authorization, and without thinking through such foreseeable consequences as that Iran would use its geographical advantage at the strait to paralyze shipping and choke off trade. This consequence caused prices to surge, pressuring the president to end the war on Iran’s terms. The vital American interest is that the strait be open for free trade, not that Americans and our nation’s trading partners pay higher prices and experience more scarcity due to tolls on a large percentage of global trade — whether such tolls are imposed by Iran, by our own government, or by anyone else.
Again, even if that were not obviously true, the president has no authority to impose tolls. That would require congressional approval, via the constitutional provisions for ratifying treaties or enacting legislation. End of story.