Sen. Rand Paul (R-KY) used Sept. 17’s Constitution Day to introduce a wise and necessary bill to insist on Congress’s constitutional authority, not that of the president, to impose taxes on imported goods.
Congress ought to pass the bill quickly for reasons both constitutional and economic.
The Constitution explicitly gives Congress, not the president, the power to impose taxes and tariffs and to “regulate commerce with foreign nations.” In certain limited circumstances, such as for specific reasons of national security or for declared emergencies, Congress in the past century has delegated tariff-setting authority to presidents. Even those delegations arguably are of dubious constitutionality. Now, though, former President Donald Trump is promising (or threatening, depending on one’s vantage point) to impose at least a 10% tariff on all imports, repeatedly implying that he would do so without specific new authorization from Congress. Lower courts have issued a hodgepodge of decisions about unilateral presidential tariff authority, and the Supreme Court has never conclusively ruled on if, when, and how Congress may delegate its own tariff power.
As policy, many economists, probably most, believe Trump’s proposal would be calamitous. The tax would be directly paid by the American importer, not the foreign exporter, and the price would almost certainly be passed on to U.S. consumers while also hurting the importers’ bottom lines and that of all their stockholders. Paul, as a dedicated free marketeer, clearly thinks Trump’s plan is ill advised.
The point of his bill, though, is less about the merits of the proposed tariff than about whose prerogative it is to make the tax-imposing decision. Some observers think recent court decisions hint that if and when a case challenging the plan could work up through the court system, the Supreme Court eventually would rule Trump’s plan unconstitutional. Either way, though, if Congress passes a law withdrawing earlier Congresses’ delegation of tariff authority, then it would not be a matter for courts to adjudicate at all. The only putative authority right now rests on a tremendously expansive reading of those grants of authority from previous Congresses. If Paul’s bill passes, neither Trump nor any other president could even claim legal authority for unilateral authority to tax imports.
Paul’s mission is well chosen for three reasons. First, the Constitution’s design, with its intricate system of checks and balances of power, is worth defending in and of itself. On grounds of both principle and practice, the Constitution works, and it should not be undermined.
Second, while one would hope the courts would interpret the Constitution correctly, the better option is to avoid the courts altogether. Congress should safeguard, or in this case reclaim, its own authority, because the first defense of the Constitution’s division of powers is for each branch of government to defend rather than delegate those powers, especially when they are as explicit as the tariff power is. Rather than take a constitutional fight to the referee (the courts), it’s better not to have the fight at all.
Third, in practice, it is a bad idea to give one person such sweeping authority as Congress has allowed presidents to exercise, at least in certain situations, on import taxes. This assessment applies no matter what one thinks about tariffs themselves. Famous early Chief Justice John Marshall was right that “the power to tax is the power to destroy.” As a safeguard against bad judgment or abuse, it is better not to place that destructive economic power in one man’s hands.
Even Paul’s bill, by the way, acknowledges that a president may have sound foreign policy reasons for banning, not just taxing but forbidding, trade from specific countries or specific products therefrom. For example, if the United States suspects China may be putting bombs in cellphones it sells to the United States, then of course a president, exercising national security powers on which the Constitution makes him preeminent, should have the ability to stop those phones from coming in.
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Paul’s bill thus makes an exception for such all-out bans.
For all those reasons, Paul’s bill is well crafted. Congress quickly should pass it, and President Biden should sign it forthwith.