(Sept. 19) It is long past time for Congress to reclaim from the president the authority to levy tariffs at his own discretion.

It is also time for a victim of the tariffs to file suit challenging the constitutionality of the president’s existing authority.

The assertions above are catalyzed by the belief that President Trump’s imposition of tariffs is an ongoing disaster. But even if these tariffs were actually good policy, they should still be the prerogative of Congress should take back its authority either way. The Constitution does not give the executive the unilateral power to lay taxes on the American people. Congress never should have ceded the power, which is against the Constitution’s spirit and letter.

On the legislative front, a new coalition of industry groups is pushing Congress to pass a law reining in presidential tariff-levying powers. A number of lawmakers are pushing various proposals to do so. The conservative Heritage Foundation suggests that the power should be entirely abolished. What is baffling, though, is the lack of court challenges against the delegation of that power to the president in the first place.

The delegation of this authority is a relatively recent thing, having come 57 years ago via through one small section of the Trade Expansion Act of 1962. Section 232 (as subsequently slightly amended) provides that if the president, on the advice of the Commerce Department, determines that if particular imported goods somehow threaten national security, he can ban their import or impose tariffs or quotas on them. The section does not require him to secure Congress’ approval.

In 54 years, presidents had used that power only six times. Trump, however, has used it repeatedly, against multiple products from multiple nations. In doing so, he has vastly expanded the ordinary meaning of “national security” to include virtually any perceived harm to the economic interests of the United States. Such expansive interpretations of “national security” are themselves objectionable, being clearly outside the original spirit of Congress’ delegation of power as a Cold War measure.

The question should arise, however, whether the delegation was legitimate from the start….

[The full column is here.]


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