Congress unlikely to assert its constitutional role on tariffs

Article I, Section 8 of the Constitution gives Congress the power “to lay and collect taxes, duties, imposts, and excises.” At times during our history, Congress has exercised that power with a vengeance. For example, in the late 1800s, William McKinley made his legislative name writing tariff legislation.

To be sure, tariffs have foreign policy implications and can even affect national security. Thus, it’s not unreasonable that the executive wants some control over tariff policy. But tariffs are mainly about favoring particular industries and workers, often at the expense of other industries, workers, and consumers. So it was natural that Congress wanted to use its Constitutional power in this area.

What’s unnatural, and I think unhealthy, is that Congress basically ceded that power to the president. Jay Cost tells the story:

[FDR] encouraged Congress to transfer authority on trade matters (as well as most regulatory matters!) to him. This time, the legislature agreed. It was as if Congress threw up its hands in exasperation and said to the president, “We cannot handle our authority responsibly. Please take it off our hands, for we will screw things up and lose reelection.”

So more and more over the past 80 years, authority over tariffs, as well as over all manner of properly legislative functions, has migrated to the executive branch, away from the legislative — even in instances (such as this aluminum-and-steel case) where there is no compelling or immediate foreign-policy mandate. Trump’s move is purely a play for aggrieved industrial workers, who should, in the constitutional schema, look to Congress and not the president for redress of their grievances.

The Trump administration has argued that the tariffs he intends to impose are needed for our national security. George Will makes mincemeat of that claim:

Never mind that the Cato Institute’s Colin Grabow notes that defense-related products require only 3 percent and 10 percent of domestic steel and aluminum production, respectively. Or that six of the top 10 nations that export steel to the U.S. (military competitor and potential adversary China is not among the top 10) have mutual defense agreements with the U.S. Or that aluminum and steel for military uses will be more expensive — so, effectively, the administration is cutting the defense budget. Cato’s Dan Ikenson says its argument seems to be “that an abundance of low-priced raw materials from a diversity of sources somehow threatens national security.”

Sen. Mike Lee wants Congress to reclaim tariff authority from the president. He has proposed legislation, the Global Trade Accountability Act, that would require congressional approval in the form of an up-or-down vote on all significant tariffs.

But modern Congresses are even more feckless than the ones that gave tariff authority away. In the case of Trump’s tariffs on steel and aluminum, Republicans lack the spine to rally in sufficient number against the president. And those Democrats who think the tariffs are bad policy — there are many who probably don’t — will be content to see if they hurt the economy, and thus Republican electoral prospects.

Thus, I agree with Theodore Kupfer that it’s probably fanciful to believe that Congress will play its constitutional role in this matter.


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