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In the last few minutes, President Trump has signed a proclamation to introduce tariffs on most imports of steel and aluminium to the United States.

Article I, Section 8 of the US Constitution states that this responsibility is that of the Congress, not of the Executive:

The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States

Is there an Act of Congress which delegated this power to the President, or will he have to seek Congressional approval before these tariffs can take effect?

  • @DrakeJohnson Can you please make that an answer rather than a comment? – Joe C Jun 16 '18 at 8:12
  • I made my comment an answer and deleted my comment. Thanks – Gabriel Fair Jun 16 '18 at 17:18
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This PDF has a good list in Table 1.1 of statutes that grant the President wide lattitude in setting Tariffs. Tariffs are not covered under Article I, Section 8 as you quoted, that sentence applies to only internal interstate trade within the boundaries of the United States. The President has much more authority with external trade since that is a form of foreign policy. The more pertinent quote from Article I, Section 8 is a little further down:

To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.

President Trump ordered a review of aluminum imports under the Trade Expansion Act of 1962 in April 2017, with the implication being that undercutting of the US Steel Industry would impact national security. The current action implies that this review is complete and he has decided to move forward in this interest.

There is also the Trade Act of 1974 that explicitly gave President Gerald Ford broad authority to "counteract injurious and unfair foreign trade practices." From Wikipedia:

Under Section 301, the President must determine whether the alleged practices are unjustifiable, unreasonable, or discriminatory and burden or restrict U.S. commerce. If the President determines that action is necessary, the law directs that all appropriate and feasible action within the President’s power should be taken to secure the elimination of the practice.

It's unclear from my reading of that Wikipedia article whether this act is still in force, it was initially set to sunset but was renewed all through the 80s and 90s. Parts of it were challenged in the 90s but the WTO rejected the challenge.

The President (or anyone else) can claim anything, and anyone with standing can challenge what they claim in court. If Trump intends to force the issue, I don't think he would also intend to ask for Congress' permission. But there may be enough will to challenge the action in which case the Supreme Court would probably intervene and determine if he has the authority he claims or whether other pertinent facts are correct (such as if the US steel industry is actually being undercut and if that affects national security). I doubt this will happen, since the order includes exemptions for Canada and Mexico and future exemptions are possible. This would allow the administration flexibility to address the concerns of anyone who may wish to challenge it who also has standing (Congress).


Historical Perspective

The first tariff was signed jointly by both the First Congress and President Washington (Tariff of 1789). In the early beginnings, the majority of income to the federal government was collected in the form of tariffs. Alexander Hamilton as Washington's Secretary of the Treasury attempted to levy excise taxes on local goods, which led some areas of the country to revolt in what came to be known as the Whiskey Rebellion. This wound up helping Thomas Jefferson win election over President John Adams in 1800 (after he narrowly lost the presidential election to Adams in 1796) since he campaigned heavily against the tax. Until the War of 1812 tariffs were the sole income, and this heavy reliance on taxes of foreign trade made it much more controversial than it is today.

In the run-up to the Civil War, the Whigs and the Democrats alternatively raised and lowered tariffs as they waned in and out of power (see Compromise Tariff, Black Tariff, Walker Tariff). The more industrious northern states exported more than they imported and wanted more protection, and the more agricultural southern states the reverse. But all of these actions went through Congress and were assented to by the President of the time (otherwise they would veto).

All the way up to the Smoot Hawley Tariff of 1930, legislation was drafted and adopted by Congress to set the different tariff rates and was generally one of the biggest economic campaign messages for the parties of the day. People representing areas with big industries were generally for more protection, and people representing areas that depended more on outside trade wanted less. During the Great Depression, Congress began to abdicate this responsibility with the Reciprocal Tariff Act, authorizing the Executive to negotiate on the behalf of the United States with the intention of lowering trade barriers with targeted nations (at the time mostly in Latin America). This "trade liberalization" continued after World War II as America was not only one of the few industrialized nations that was not ravaged by war, but they were also looking to use capitalism as a means of keeping communism from spreading.

The current laws the President is relying on is a continuation of this trend of granting the Executive branch more leeway in conducting foreign policy for Congress. But Congress does have the authority to provide a check and balance to this power as your question rightly alludes to. After Trump's announcement, his fellow Republican Jeff Flake has threatened to introduce legislation to nullify Trump's actions.

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    Given that the PIIE publication is from 2016 and cites the Trade Act of 1974, I think it's safe to assume that it is still in force. – Joe C Mar 8 '18 at 22:02
  • "that section applies to only internal interstate trade within the boundaries of the United States": this is quite wrong. The president's statutory authority to impose tariffs has been delegated to him by congress, which in turn derives its authority to do so from Article 1, section 8. Note that the section also gives congress the power to "regulate commerce with foreign nations." Congress almost never acts unilaterally, of course, because of checks and balances: acts of congress do not take effect without the presidents signature unless congress votes to override the veto. – phoog Mar 10 '18 at 23:53
  • @phoog I was referring to what OP quoted. I also quoted what you are quoting, since it is "a little bit farther down." I changed the word to "sentence" so it is less ambiguous. – Jeff Lambert Mar 11 '18 at 0:15
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    @JeffLambert but the sentence the OP quoted is not limited to interstate commerce. – phoog Mar 11 '18 at 1:06
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Trump's tariffs are "based on Section 232 of a 1962 U.S. law that allows safeguards based on “national security”."

Put another way, Congress gave POTUS this prerogative aeons ago - long before the post-9/11 Bush era, during which Congress gave up even more powers.

  • Is it the Trade Expansion Act of 1962 to which you're referring? – Joe C Mar 8 '18 at 21:52
  • @JoeC: I'm merely quoting the Reuters article verbatim, and presuming they fact checked it. Bloomberg suggests it's the case too, and quotes the Trade Expansion Act as a bonus, so presumably that is the one. – Denis de Bernardy Mar 8 '18 at 22:01
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Because congress has to approve tariffs, except in the case of national security. Claiming the tariffs are in the interest of national security is the only way the president can unilaterally impose a tariff. However, after the G7 summit, he tweeted his feelings on Trudeau and called out that this tariff is retaliatory, and not about national security:

Very dishonest & weak. Our Tariffs are in response to his of 270% on dairy!

Evidence the metal tariffs were not for national security but were a tit-for-tat

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