President Trump’s New Tariffs Are Unconstitutional
I have agreed with President Trump on most policy questions, and I defended him ardently against the despicable campaign of lawfare waged against him by former President Biden and by the Left more generally. I greatly admire the President and believe strongly that the President has the power to remove all federal officers and employees who do not either work for Congress or for the Article III federal courts. I will defend in amicus briefs his power to fire FTC commissioners, NLRB commissioners, Inspectors General, and civil service personnel.
I must, however, respectfully disagree with President Trump’s imposition of sweeping tariffs, which are huge tax increases, this week because I think he lacks the statutory and constitutional authority to raise tariffs in the way and to the degree he has done. Under Article I, Section 8, Clause 3, it is Congress that has the power to regulate commerce with foreign nations and not the President, and under Article I, Section 8, Clause 1, it is Congress and not the President that has the power to impose duties, imposts, and excises—better known as taxes.
The American Revolution was fought over the principle that there should be “no taxation without representation.” While the President does represent the American people, Congress represents them as well. The Constitution gives Congress and not the President the critical voice in the imposition of taxes on the importation of goods.
While Congress has delegated substantial discretion to the President to raise tariffs when there are emergencies, which Congress may do under U.S. v. Curtiss-Wright Export Corporation, 299 U.S. 304 (1936), the tariffs, which President Trump has imposed, especially this week, raise “the major question” of whether tariffs on this scale ought to be imposed as: (1) a big source of the federal government’s revenue (partly replacing for this purpose the income tax), or (2) in response to currency manipulation or (3) in response to the inclusion in the price of foreign goods of value added taxes or (4) to deal wi
Article from Reason.com
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