Trump’s Tariffs: Another Wake-up Call for Congress

On April 2, in his latest and potentially most consequential act of hubris, Donald Trump announced a blizzard of so-called “Liberation Day” tariffs on most countries—and then some. This triggered financial chaos in the United States and throughout the world. The U.S. stock market fell into “correction” territory and there were widespread expressions of concern domestically and internationally.

Trump’s tariffs have been panned by economists and others across the ideological spectrum.^[1]See here for a summary of criticisms from the right. Their stated goals are widely viewed as implausible and internally inconsistent. The supporting facts are dubious and rife with errors. Tariff targets include barren islands populated mainly by penguins. There are contradictions over whether the tariffs are firm or simply a negotiating tactic. Even apart from their negative economic impacts, the tariffs are yet another blow to our standing in the world. Whatever may be said in support of the tariffs, the issues and potential effects are surely much too complex to be left to the whim of one individual.

The tariffs and their rollout have all the hallmarks of a typical Trump flight of fancy that his bumbling, unquestioning staff attempted to execute as best they could understand them and most congressional Republicans were afraid to criticize. All in all, it would have been more fitting to announce the tariffs on April 1.

How is Trump, or any other president, able to take such sweeping, unilateral action with such profound impact on foreign commerce and the domestic economy? There’s nothing in the Constitution granting the executive branch this authority. On the contrary, the Commerce Clause (Art. I, section 8) explicitly grants Congress, not the president, the power to “collect Taxes, Duties, Imposts and Excises (Clause 1) and to “regulate Commerce with Foreign Nations” (Clause 3).

This is yet another striking example of how Congress has ceded its constitutional authority to the executive branch with few constraints on its exercise. Congress enacted statutes over the years delegating to the president authority to impose tariffs under various circumstances. The circumstances are usually described in general terms, often referencing loosely defined emergency conditions. The courts have consistently upheld the delegations.^[2]For detailed background, see here and here.

It’s possible that Trump’s assertion of a qualifying “emergency” to support his massive tariffs here may be too far-fetched for the courts to accept.^[3]See here and here. In any event, there is a more fundamental point beyond the issues related to these tariffs.

Congress may get away with abdicating its constitutional authority over tariffs and so many other subjects to presidents who act with at least a modicum of responsibly and good faith. Clearly, that’s is not the case with Trump. His only motivation is self-gratification, he operates with no regard for laws or democratic norms, and many of his initiatives are hoaxes.^[4]For example, his “Department of Government Efficiency,” fronted by Elon Musk, is not a serious effort to reduce fraud and waste by any objective definition or make a significant dent in federal … Continue reading

Trump’s many abuses highlight the urgent need for Congress to reclaim its constitutional role and responsibilities. Of course, this isn’t likely to happen with the current majorities composed largely of Trump sycophants. Hopefully, a future Congress will awaken from hibernation and find some remnants of democracy left when it emerges.