Congress has, over several decades, slowly delegated to the president its constitutionally prescribed role of setting tariffs—which are taxes—and regulating international commerce. It’s time for Congress to take back that authority, and it may do just that.
Article 1, Section 8, of the U.S. Constitution says, “The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises…” And Congress has the power, “To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.”
Prior to the 1930s, Congress exercised that role.
However, in 1930 Congress passed the disastrous Smoot-Hawley Tariff Act, slapping punitive tariffs on a wide range goods. In a type of plea to “Stop us before we tax again,” Congress began shifting some of that tariff-setting authority to the president.
One key piece of legislation was the Tax Expansion Act of 1962. Under that law, the president may “adjust the imports of such article so that such imports will not threaten to impair the national security.”
That is the provision that President Donald Trump is citing to unilaterally impose tariffs on a wide range of items. And while a case can be made for imposing tariffs on steel and aluminum from China—though certainly not Canada and other allies—no one believes that imported cars made in the European Union, Japan or Korea are a national security threat.
The president’s tariff overreach has led to congressional pushback. On July 11 the Senate voted 88 to 11 to approve a nonbinding resolution calling on Trump to get Senate approval before using national security as a reason for imposing tariffs.
Several members are now threatening to introduce binding legislation. If such legislation were to pass the Senate and House, the president might veto it. But a two-thirds vote in both houses of Congress would override his veto.
When presidents see a veto-proof majority emerging, they often scale back their efforts that are spawning the fight, thereby avoiding the rebuke.
But we think it’s a move Congress should take anyway. The Framers of the Constitution wanted the taxing power residing in Congress, especially the House, and for good reason.
Members of Congress were considered closer to the people and the states and would be more responsive to their wishes. That is almost certainly true here, as multiple news stories highlight how working Americans are getting hit by Trump’s self-imposed tariffs.
Tariffs are a tax that the government imposes on its own people. Constitutionally speaking, only Congress has the power to tax—at least until it ceded some of that authority. Congress needs to put that power back where it belongs.