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.
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