With Tariffs, Presidents Must Defer to Congress

One of the hallmarks of our modern political age is the consistent, bipartisan delegation of power from Congress to the Executive branch. In the interest of short-term political gain and a desire to avoid accountability, partisans in Congress will often empower the president of the same party to achieve policy priorities. President Obama’s executive amnesty and President Trump’s national emergency come to mind.

So it’s notable to see a bipartisan effort, championed by Republican Senator Pat Toomey (R-PA) and Congressman Mike Gallagher (R-WI), that aims to claw back power to the legislative branch. The Bicameral Congressional Trade Authority Act, introduced at the end of January, seeks to ensure that existing presidential authority to set tariffs in the interest of national security is actually exercised for national security reasons by, among other things, placing investigation of the need for such tariffs in the Department of Defense and requiring congressional approval of any tariffs that are to be imposed.

This effort is a refreshing defense of Congress as an institution. Article I, sec. 8 of the Constitution places the power to levy tariffs with Congress, not the president. Tariffs are taxes, ultimately paid (one way or another) by Americans, and giving the president the power to decide when and what they should be concentrates the power to make and administer the law in the executive, a cardinal violation of our Constitution’s separation of powers. We used to learn about these checks and balances in high school civics and understood that they were not simply a technical formality but an important guarantor of liberty. For Madison and the founders, our Constitution’s various divisions of authority were “auxiliary protections” that would oblige the government to control itself.

The U.S. Constitution assumes that each branch of government will defend its own prerogatives. But in recent years, Congress has failed to do so, systematically ceding power to the executive. And when authority is given to the president, it tends to be exercised, for better or worse, by the denizens of our federal bureaucracy—both those employed by it and those whose business it is to influence them. If you want to know who is responsible for the growth of the administrative state, Capitol Hill would be a good place to start. Take, for instance, a recent proposal that would give the president virtually unlimited powers to set tariffs.  It may not be intended as legislative empowerment of the “deep state,” but that’s precisely what it would do. Rather than expanding the power of bureaucrats to pick winners and losers in the global economy—a process that we can be sure will be dominated by K Street lobbyists and special interests—Congress ought to reassert its Article I powers over international trade.

But, it might be argued, requiring the Senate and House to agree on tariffs will mean that few tariffs are imposed. That would not be the worst thing in the world. Trade protectionism is almost always a function of economic ignorance; a political project that congratulates itself for protecting a handful of jobs at the cost of other unseen jobs that become casualties of retaliation and higher costs. It rests on the curious proposition that, if another nation is harming its own citizens by restricting imports, we ought to do the same. Almost every economist on earth understands that free trade creates wealth. While it may also create losers in the short run, the answer is to help those left behind rather than empower a new group of economic luddites who argue that the prosperity of the majority should be sacrificed to the interests of the few.

While perhaps frustrating to partisans only interested in short-term victories, the Constitution’s separation of powers is designed to safeguard liberty. Congress, and not the president, is tasked with the authority to decide who is taxed and how much. If tariffs cannot command the support of our elected representatives, then they ought not to be imposed. Congress has not only the power to make the law, it also has the responsibility to do so.