A constitutional violation in the service of a foolish, provocative policy.
On his private Truth Social platform (where else), the president of the United States has announced a new government policy: American armed forces will henceforth ensure the safe transit of trade vessels through the Hormuz Strait, but, as a matter of “fairness,” our government will compel shippers to pay the U.S. a toll of 20 percent of the value of their cargo.
President Trump does not use the word “toll,” “tax,” “fee,” “duty,” or other synonymous word that would elucidate that he is purporting to exercise powers of Congress — he simply dictates that the U.S. will be “reimbursed, at the rate of 20 percent on all cargo shipped.”
This is your periodic reminder of rudimentary constitutional facts. First, the president has no inherent Article II or commander-in-chief authority to raise revenue; only Congress has that authority. Second, Congress has not authorized military action to keep the Hormuz Strait open.
Moreover, as I’ve previously explained, although the U.S. government has not ratified the United Nations Convention on the Law of the Sea (UNCLOS), it has asserted that the articles pertaining to free transit passage through straits used for international navigation (articles 34–41) are binding as customary international law. Whatever the validity of that rationale, it has been the U.S. government’s basis for contending that attempts to toll the strait by Iran — which has similarly refused to ratify UNCLOS — violate international law. (As I countered in the above-linked column, there has been free transit through the Hormuz Strait during the 47-year reign of Iran’s revolutionary jihadist regime because the United States credibly threatened to keep the strait open by force (and has occasionally made good on that threat).
The strait was open when Trump decided to start the war. This was to the great advantage of the United States, a trading colossus with the world’s most formidable economy. If Trump were to impose tolls, fees, taxes, or whatever he deigns to call them — i.e., if he were to do exactly what Iran has been trying to do — that would induce other nations to extort payments for transit through international waters and straits of importance to international trade where they are in a position to intimidate shippers. Free trade would break down, which would be a catastrophe for nations heavily engaged in international trade, such as our own.
Congress should authorize the use of military force to keep the strait open. Still, regardless of whether one thinks the president has authority to use force to remedy a problem he created (because, however we got to this point, it is in America’s vital interest to keep the strait open), he has no authority to toll the strait, as he proposes to do.
It is entirely possible that Congress should enact legislation and/or that a binding international treaty should be forged that would reimburse the U.S. for security costs. I doubt that; I’d estimate that the benefits that the U.S. receives from free transit across the world far outweigh the costs of discouraging Iran from tolling the Hormuz Strait. But wherever you come out on that equation, a president has no authority to dictate transit taxes, and trying to do so is a provocation both constitutionally and in international relations.
Republicans once knew this — and I suspect would remember it rapidly if the president trying to do it were a Democrat.