On Tuesday, the Supreme Court will hear arguments on the constitutionality of the sweeping tariffs imposed by President Trump over the past nine months. In recent years, the conservative justices on the Court have placed increased weight on a “history and tradition” standard when deciding individual rights cases. If these originalist justices apply that same line of thinking to statutory interpretation in the tariffs case, the Trump administration is in a lot of trouble.
Tariffs are a tax on foreign goods. As you may recall from high school, “taxation without representation” was a primary cause of the American Revolution. Indeed, “for imposing Taxes on us without our Consent” is one of the grievances against the British Crown in the Declaration of Independence (another: “for cutting off our Trade with all parts of the world”). The word “consent” was important. The colonists considered the imperial imposition of taxes to be a violation of their fundamental rights.
The idea that the power of the purse should be subject to some representative oversight goes back centuries in Anglo-American history. Magna Carta, signed in 1215, declared that the king could not levy taxes without the consent of his council of barons. The 1628 Petition of Right established the principle that taxation without Parliament’s consent was unlawful. King Charles I’s defiance of Parliament led to his execution and the English Civil War (1642–51). Later, after the Glorious Revolution, the 1689 British Declaration of Rights firmly established Parliament’s rights, including the power to control public spending and taxation.
This British history was well known to America’s founders, who, after our own Revolution, wrote a constitution that made Congress, not the president, the Article I branch of government and bestowed upon it the power to “regulate Commerce with foreign nations” and to “lay and collect Taxes, Duties, Imposts and Excises.” It mandated that the House of Representatives, the democratically elected people’s house, would originate “All Bills for raising Revenue.”
James Madison argued in Federalist No. 52 that giving the House of Representatives the power over revenue bills was essential: “This power over the purse may, in fact, be regarded as the most complete and effectual weapon with which any constitution can arm the immediate representatives of the people, for obtaining a redress of every grievance, and for carrying into effect every just and salutary measure.”
Alexander Hamilton, who favored an energetic executive branch, also defended legislative control over finance as a pillar of republican government. In Federalist No. 72, he offered one of the clearest and most colorful statements regarding the importance of checks and balances: “The legislature … holds the purse; the executive, the sword.”
An amicus brief filed by a group of renowned constitutional scholars affiliated with the Democracy Forward Foundation traces the history of tariffs from the nation’s founding to the present day. “Tariff authority has rested squarely with the legislative branch since the nation’s founding, and the extent of Congress’s delegation to the President of that authority is one of the nation’s first and most enduring major questions of governance,” they write. “From the first Tariff Act of 1789 onward, tariff setting has been understood as a legislative function, though one that Congress can, and periodically has, allowed the President to administer—but only within defined bounds.”
As the brief explains, “For the roughly 150 years that followed … Congress set every tariff imposed on imported products.” (Ironically, the infamous Smoot-Hawley Tariff Act, which helped to bring about the Great Depression, was the last time Congress revised the entire tariff schedule, setting tariff levels for some 3,300 items.) In the twentieth century, as global trade increased and became more complex—and tariffs became a smaller share of federal revenue after the Sixteenth Amendment reestablished the federal income tax in 1913—Congress established the U.S. States Tariff Commission (now known as the International Trade Commission) to help administer the tariff schedule.
During the twentieth century, Congress passed several laws giving the president the power to impose tariffs when national security is endangered or a surge in imports threatens serious injury to a U.S. domestic industry. (The Democracy Forward Foundation’s brief provides an excellent summary.) Most pertinent is the Trade Act of 1974, which Congress enacted to give the president the authority to negotiate trade agreements and, in certain instances, to impose tariffs on companies or nations that threaten serious injury to a specific domestic industry. This is how past administrations—George W. Bush (steel), Obama (tires), Trump I (solar panels, washing machines, steel, and aluminum), and Biden (Chinese electric vehicles and solar panels)—employed the legislation.
However, the Trump administration is not citing the Trade Act of 1974 as its legal authority to impose tariffs this time around, probably because the law imposes constraints on the president’s ability to do so. Instead, the Trump administration is citing the International Emergency Economic Powers Act of 1977 (IEEPA) as the legal authority for its sweeping tariffs.
IEEPA gives the president the authority to “regulate” or “prohibit” imports during a national emergency declared under the National Emergencies Act. But IEEPA does not mention tariffs, and no president had invoked it to impose tariffs until the Trump administration did so in February, declaring a national emergency over illegal immigration and fentanyl trafficking and using it as the basis for imposing tariffs on imports from Canada, Mexico, and China. But illegal immigration and fentanyl trafficking began to decline in the last years of the Biden administration and have plunged during the second Trump administration.
Trump’s April 2 “Liberation Day” executive order, which imposed wide-ranging tariffs on nearly every nation on earth—and effectively nullified 14 congressionally authorized trade agreements with the stroke of a Sharpie—also employed IEEPA as its authorizing statute. The national emergency: “conditions reflected in large and persistent annual U.S. goods trade deficits, which have grown by over 40 percent in the past 5 years alone, reaching $1.2 trillion in 2024.” But the trade deficit in goods has remained relatively stable over the past decade. It grew only in late 2024, when imports spiked as retailers rushed to bring products into the U.S. in advance of Trump’s proposed tariffs. Manufacturing employment has risen over the past 15 years. Investment in new manufacturing facilities soared during the Biden administration. (I’ll never understand why the Democratic answer to every question posed during the 2024 election wasn’t “we passed the Infrastructure Act and the CHIPS Act and created more than 700,000 new manufacturing jobs.”)
Court experts predict that the Trump administration will emphasize Dames & Moore v. Regan, in which the Supreme Court decided that it was constitutional for President Carter to use IEEPA to authorize the seizure of Iranian assets in American banks as a bargaining chip to secure the return of the American hostages whom Iran was holding. Others predict that the Court’s “major questions test” will come into play. That doctrine asserts that there must be clear and direct legislative language when authorizing the executive branch to enact broad, sweeping policies. This is the rationale that the Court used to reject executive orders issued during the Obama and Biden administrations on issues such as DACA and student loan debt relief.
The Supreme Court was right to reject the executive order overreaches by the Obama and Biden administrations and should remain consistent with the Trump tariffs case. Having a president unilaterally decide, on a daily whim, whether to raise or lower tariffs on particular nations, industries, or even individual companies, is unconstitutional, as well as an open invitation to corruption. Congress needs to reassert its constitutionally granted Article I branch powers over “Taxes, Duties, Imposts and Excises.” (There are hopeful signs that this may be happening, at least in the Senate.) If Congress believes that the sweeping tariffs imposed by Trump are good policy, it can pass a law to that effect. A sensible law encouraging equal reciprocal tariffs might even enjoy bipartisan support.
As the 250th anniversary of our founding approaches, Americans across the political spectrum need to reacquaint themselves with the fundamental values on which the nation was founded. The whole point of the Revolution was that we would be self-governing citizens of a democratic republic, not subjects beholden to the arbitrary edicts of a despotic ruler. Hopefully, the originalists on the Supreme Court are aware of this history and tradition.
