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What Authority Does Trump Really Have Over Tariffs? [1]
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Date: 2025-02-02
If you read the news, Donald Trump is announcing tariffs on Canada, Mexico and China. I hope some smart lawyers in their bunkers have a chance to take a look at that.
For many Americans, and many judges, the U.S. Constitution is still an important document worth reading. It happens to say, Congress has the power to “regulate Commerce with foreign Nations. ...”
Congress has not approved Trump’s plans. (Please write a Groundhog Day joke if you have a good one.)
Congress can delegate some powers to the president regarding tariffs. This article from the Congressional Research Service seems to be on point. Other writers are more favorable to Trump and I will get to them later.
Just to run through some of the highlights of the Congressional Research paper:
1975 Section 101 of the Trade Act of 1974 authorized the President to proclaim reductions in U.S. tariff rates of up to 60% of existing rates ... 1988 Section 1102(a) of the Omnibus Trade and Competitiveness Act of 1988 authorized the President to proclaim reductions in U.S. tariff rates of up to 50% of existing rates The 1988 Act limited the President’s ability to increase tariffs as part of such an agreement. . ... 2002 Section 2103(a) of the Trade Act of 2002 authorized the President to proclaim reductions in U.S. tariff rates of up to 50% of existing rates ... 2015 Section 103(a) of the Bipartisan Congressional Trade Priorities and Accountability Act of 2015 authorizes the President to proclaim reductions in U.S. tariff rates of up to 50% ...
Note the president has some authority to proclaim reductions in tariffs. There seems to be no authority to blindside our trading partners with new tariffs.
He somehow thinks he has authority to announce increases in tariffs.
It is a close point. Should Trump be allowed to wreck the U.S. and World economy and destroy his own party, or should someone ask the courts to rein him in?
In a world where he is giving control of the nation’s finances to unelected jerks, blaming everything on and hating on people of color, putting a drunken fool in charge of the military, recklessly wasting water our farmers need, firing federal employees needed to keep transportation running safely, attempting to deport American citizens, blocking healthcare, and exhibiting bizarre behavior, does anyone have time to consider his illegal tariffs?
In fairness, I should quote an author who sides with Trump in this dispute. William Reinsch of the Center for Strategic and International studies. He cites Sections 232 and 301, the International Emergency Economic Powers Act (IEEPA), Section 122 Balance-of-Payments Authority, and Section 338 of the Tariff Act of 1930.
He says: “While Section 232 requires an investigation by the Department of Commerce and Section 301 requires an investigation and determination by the Office of the U.S. Trade Representative (USTR), these procedural niceties could be accomplished in relatively short order by cabinet officials, particularly since undue delay could put them at risk of getting fired.”
He mentions, “Section 232 of the Trade Expansion Act of 1962 (known as the Trade Expansion Act) grants the president broad power to adjust imports if they are found to be a threat to U.S. national security, including through the imposition of tariffs.”
While this will get argued in court, a fair judge is unlikely to determine that every single thing made in Canada represents a threat to U.S. national security. I think Trump will have some trouble with this.
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