IS CONGRESS ABANDONING ITS CONSTITUTIONAL ROLE IN RAISING TARIFFS?
BY
ALLAN C.BROWNFELD
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During
his 2024 presidential campaign, Donald Trump promised to impose a
variety of new tariffs—-without congressional approval. These include a
25-75% tariff rate on Mexican imports, a 60% tariff rate on Chinese
imports and a broad 10-20% tariff rate on all imports, regardless of
country of origin. More recently, he announced that he may seek
immediately to apply a 25% tariff against Canada and Mexico for
complicity in the border crisis.
The
U.S. Constitution gives Congress the power to set tariffs. Article 1,
Section 8 states that Congress has the power “to lay and collect taxes,
imposts, duties and excises” and to regulate commerce with foreign
countries. For most of our history, Congress set tariff rates through
legislative revisions to the the U.S. Tariff Schedule. In recent years,
Congress began delegating large portions of its tariff authority to the
president. In the International Emergency Powers Act of 1977, for
example, the president is empowered to address “any unusual and
extraordinary” threats to the national security, foreign policy or
economy of the U.S. upon declaring a national emergency.
Congress
has for many years been abdicating its clearly enunciated
constitutional role. The Constitution gives Congress the power to
declare war. The last time it did so was after Pearl Harbor. Since
then the executive alone has taken us to war in Korea, Vietnam, Iraq,
Afghanistan and elsewhere. We are living under a system that is
radically departing from what the Framers of Constitution clearly put
into their written document.
The
authors of the Constitution considered Congress the most important
branch of government. It, and it alone, was given the power to declare
war. Congress, more specifically the House, was given the power to
initiate all bills resulting in the expenditure of money.
In
his important book “The Political Culture of the United States,” Prof.
Donald Devine declares that the American political tradition “stresses
the importance of limiting the sphere of government. Thus, the
tradition emphasizes restrictions both for minorities and even for
popular majorities…The first and most basic institutional rule of
the…tradition is that the legislature predominates.”
The
political,philosopher who strongly influenced the Founders, John Locke,
was emphatic on the role of the legislature. In his Second Treatise, a
volume which had profound impact upon the authors of the Constitution,
Locke declared that, “There can be but one supreme power, which is the
Legislature, to which all the rest are and must be subordinate.”
According
to Locke, the legislature is subordinate to the people; but among the
institutions of government, the legislative branch is supreme. It is
the legislature “which has a right to direct how the force of the
commonwealth shall be employed for preserving the community and the
members of it.” The legislative power is best put into “the hands of
many who assemble. To make laws but who do not administer them.”
Our
government was created as one of strict checks and balances. In The
Federalist Papers, James Madison stated that, “In framing a government
which is to be administered by men over men, the great difficulty lies
in this: you must first enable the government to control the governed;
and in the next place oblige it to control itself.”
Today,
far too often, regardless of which party is in power, the Congress
passes a law, sets forth a policy goal, appropriates a sum of money, and
then is ignored by the executive or, more likely the new “fourth branch
of government,” the bureaucracy.
The
statement by a State Department official after his transfer to the
Department of Agriculture reflects what appears to be a widespread view
in the bureaucracy:
“The bureaucrat has a program
to carry out what he believes in. The question of whether or not
Congress has authorized it is not so important to him. He figures that
if Congress really had the facts and knew what was right, it would agree
with him. So he goes right ahead getting away with as much as he can.
I’ve attended lots of these meetings within the department where budget
questions and the like were decided and I never heard a respectful word
spoken about Congress in one of them.”
If
tariffs are increased, American grocery prices will increase
dramatically. Canada and Mexico are our biggest trading partners. Each
year, Mexico sends us $19 billion worth of fruits and vegetables
alone. About two-thirds of fresh tomatoes that Americans eat are from
Mexico as are 90 per cent of avocados. When it comes to gasoline
prices, if we tariff everything from Canada, including petroleum
products, such as gasoline. Patrick De Haan, head of petroleum analysis
at GasBuddy believes that U.S.motorists would pay $6 billion to $10
billion more per year. Gasoline prices in the Midwest and the Rockies,
he predicts, would increase gasoline prices by 25 to 75 cents per
gallon.
The impact upon
American consumers of a dramatic increase in tariffs would raise prices
throughout our economy. “Our auto industry, for example, is well
integrated across North America, with parts crossing borders many times
in the process of making a car/truck,” notes University of California,
Los Angeles Prof. Kimberly Clausing. In her view, car prices would rise
for American consumers.
Whatever
the positive or negative impact an increase in tariffs would have on
American consumers, the fact is that it is the elected representatives
of the people who should make this decision, as the Constitution
states. It should not be made by the executive, whose constitutional
role is to execute the laws passed by the Congress. The Framers of the
Constitution feared an all powerful executive. Now, after years of
Congress permitting the executive to expand its power in disregard of
our separation of powers and system of checks and balances, we have
reached a time when one man proposes to impose tariffs upon our trading
partners all by himself. The Framers of the Constitution feared
something like this might happen. They would certainly be disappointed,
if not surprised.
As we
approach the 250th anniversary of our Constitution, it would be well for
us to review our history and the philosophy which motivated the
Founders. No other people in the world today is living under the same
form of government which existed in their countries 250 years ago. The
Framers understood something important about human nature and the
tendency of government to grow. They did their best to limit government
and divide it. Unfortunately, many Americans have not been properly
taught this history. This coming anniversary provides an opportunity to
review that history more carefully and transmit its lessons to the
coming generation.