Many people appear to assume that, if reelected, former president Donald Trump on day one of his second term would carry out his campaign promise to impose 10 to 20 percent tariffs on all imports. This, combined with his threatened 60 percent tariff on Chinese imports, would cost the typical American household more than $2,600 a year.
Trump doesn’t have the authority to do this. Saying he would be a dictator for a day if reelected doesn’t make him one. Why not? Because the US Constitution says very plainly that Congress, not the president, has the authority to impose tariffs. It is there in black and white. Article 1, Section 8: “The Congress shall have Power To lay and collect Taxes, Duties, …To regulate Commerce with foreign Nations.” Congress has not delegated the authority to set the level of tariffs and, what’s more, it is unlikely that it could, under our Constitution, do so. It can delegate selectively, not abdicate
its role completely.
Trump and the public became accustomed to him doing what he wanted to do with tariffs during his time in office. In early 2017, on his first day of business after his inauguration, he withdrew the United States from the Trans-Pacific Partnership, a trade and tariff agreement with 11 other countries. But that was different. The Congress had not yet approved making the United States a party to that agreement. Later Trump imposed additional tariffs on Chinese imports making the average tariff on goods from China entering the United States over 19 percent compared with imports from other sources averaging 3 percent. He also imposed additional high tariffs on imports of steel and aluminum from all sources. All of Trump’s tariffs, however, as well as those imposed later by President Joseph R. Biden Jr., were put into place under what was claimed to be a delegation of tariff authority to the president from the Congress. Presidents do not have the power to set those tariffs independently.
Can a broader action be taken under US law? Yes, in an
emergency. President Richard M. Nixon put a temporary 10 percent import
surcharge (an additional 10 percent tariff) on all imports in 1971. He
declared a national emergency, citing a balance of payments crisis (the
government was running out of gold to support the gold-backed dollar at
the time), and used the Trading with the Enemy Act—a WWI emergency
authority created by Congress, to impose this tariff. It lasted four
months while new international monetary arrangements were worked out.
The courts upheld his use of this authority. However, the courts
rejected an alternative claim of authority, to temporarily terminate all
trade agreements as needed to impose the tariff. That, the courts said,
went too far.
Is there any other authority out there that could be claimed to authorize action now?
There is a long forgotten and never-used 1930 statute that allows
the president to put additional tariffs of up to 50 percent on any country that discriminates against US products and even block the imports completely if the country increases the discrimination. But that is not the current situation. It is not credible to say that all countries are discriminating against US trade. No president has found a fact pattern that fits this statute, and it has never been used.
Is this a balance of payments
emergency? There is authority under Section 122 of the Trade Act of 1974 in such cases: “Whenever fundamental international payments problems require special import measures to restrict imports—(1) to deal with large and serious United States balance-of-payments deficits, (2) to prevent an imminent and significant depreciation of the dollar in foreign exchange markets,” the president is authorized to impose additional tariffs of up to 15 percent or import quotas for up to 150 days. Most economists would say that a tariff would not do away with the overall US trade deficit, and besides, the action would be temporary until Congress could act. This option would cause a lot of damage to relations with other countries and drive up the cost of living at home with no net benefit. It is not clear that there is a balance of payments problem justifying tariff action.
Is there any other authority Trump could invoke? The International Economic Emergency Powers Act
confers extraordinary authority to the president to block all transactions including imports. This grant of authority is used to deal with Hamas and North Korea, for example. Can it be used against trade with all countries, our allies and friends in Europe and Asia, in the Americas, not to mention the poorest countries in Africa? That would simply be too large a power grab to have been within what Congress intended in this statute. The Act says, “Any authority granted to the President by … this title may be exercised to deal with any unusual and extraordinary threat … if the President declares a national emergency with respect to such threat.” All our trading partners pose an unusual, extraordinary threat?
Could a re-elected Trump act first and sort out the legalities later? Wouldn’t a hand-picked Supreme Court rule that somehow additional across-the-board tariffs on all imports from all countries was justified? After all, the Supreme Court in recent years has ruled that voting rights can be curbed, that political contributions can be unlimited in amount, that 50 years of reproductive rights will not be maintained, that deference to administrative agencies is no more, and that the president himself is immune to accountability for his official acts. In other words, a very pliant Supreme Court delivered everything Trump and those who back him would want.
The answer is “no.” Even the justices who favored deference to the executive branch required that there was ambiguity as to whether an agency had authority delegated by Congress before they would defer to the agency’s interpretation of the law.
Here there is no ambiguity. The Constitution is clear. For the constitutional originalists and for the justices who give deference to executive branch agencies alike, there is no scope for determining that Trump can impose blanket tariffs (the equivalent of taxes on the American people). The wholesale transfer of authority from the Congress to the president would be going too far. Even King George III needed the British Parliament to pass the Stamp Act in 1765. The Supreme Court can act quickly when it has to. Even in a time of war, the Court acted in less than two months to rule that President Harry S. Truman lacked authority to seize the nation’s steel mills during a strike.
Would the courts uphold Trump’s planned 60 percent China tariffs? That is a separate question. The president has, under the Constitution, the power to conduct foreign affairs and the delegated power to act against unfair acts by other countries. Two US presidents have labeled China an unfair trader, and the courts could defer to that finding. Would they defer to a finding that all countries acted unfairly against the United States? That is a harder case to make, depending more on general paranoia than facts. Nixon, who was not paranoid when it came to foreign affairs, was clear there was a national emergency in 1971. Had the retaliatory authority existed then, he could have found that with a dollar pegged at an artificially high level, all trade was unfair. That is not the condition today.
Should America’s trading partners who do not feel vulnerable for other reasons be preparing gifts to buy off a second Trump administration to avoid a blanket 10 to 20 percent tariff? That is questionable. Such a tariff would not stand unless the pro-Trump Republicans gain control of both houses of Congress, in which case, all bets are off.