Congress should take back the tariff power

Whatever other executive actions Trump may take or threaten to take, his power to impose new tariffs unilaterally is, unfortunately, quite expansive. If Democrats and Republicans don’t like this state of affairs, however, they have only themselves to blame. And time is running out for them to do something about it.

Article I, Section 8 of the Constitution plainly gives Congress, not the executive branch, the authority “to regulate Commerce with foreign Nations,” as well as to impose “taxes, duties, imposts, and excises.” For over a hundred years, Congress took this duty very seriously, including the first legislative act of Congress, which was the Tariff Act of 1789.

But then, starting in the Progressive Era, Congress began to transfer more and more legislative power, including the tariff power, to the executive branch. In 1934, after the Smoot-Hawley tariff was widely believed to have worsened the Great Depression, Congress passed the Reciprocal Trade Agreements Act of 1934, which gave the president unprecedented power to lower or raise many tariffs unilaterally. The thinking at the time was that the executive branch would not be as beholden to parochial special interests as Congress.

This consensus was proved wrong, however, in 1963, when President Lyndon Johnson used the act’s authority to impose tariffs on European light trucks in response to European tariffs placed on the chicken exports of American farmers. Johnson chose light trucks as the good with which to punish Europe at the behest of the United Auto Workers union, which did not want to compete with European automobile manufacturers. These tariffs are still in place to this day.

Undaunted by this lesson, Congress continued to transfer more tariff authority to the executive branch with Section 123 of the Trade Act of 1974 and Section 203 of the International Emergency Economic Powers Act of 1977. Thanks to these and other transfers of power from Congress to the executive, Trump now can cite seemingly ample legal authority to threaten tariffs credibly on an almost unlimited number of imports.

Some in Congress have begun the effort to reclaim this power. Sen. Mike Lee (R-UT) first introduced the Global Trade Accountability Act, which would require both chambers of Congress to approve affirmatively of any “unilateral trade actions” taken by the executive branch. Lee has since reintroduced that legislation in every Congress since. Sen. Rand Paul (R-KY) has introduced his own reclamation of congressional tariff power, the No Taxation Without Representation Act, which would require congressional consent before a president could impose new tariffs. (Lee’s act would require congressional action on any raising or lowering of tariffs. Paul’s act would only apply to tariff hikes.)

President Joe Biden could have worked with either of these senators on a bipartisan basis over the past four years to reduce the damage that could be caused by a Trump-induced trade war. But Biden instead chose to use those same powers for his own political ends.

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There is still time for Democrats in Congress to work with Republicans to reclaim their trade authority. But it appears unlikely to happen. As much as the Democratic Party talks about the threat of Trump wielding federal power, the reality is that instead of defanging the executive branch, the Democrats would much prefer to wait until they are the ones in power and then use that power to their own political advantage.

Someday, the Democrats may come to their senses and work with Republicans to reclaim much of the legislative power Congress has transferred to the president. Today, unfortunately, is not that day. Maybe Democrats will reconsider in another four years.