‘Tariff man’ Trump defies the Constitution

President Trump’s multifront tariff war has provoked foreign retaliation against U.S. exports, but its most lasting consequence may be Congress’ reaction to this castration of its constitutional authority over trade.

Since early 2018, President Trump — a self-confessed “tariff man” — has imposed duties on imported steel and aluminum from a wide range of trading partners and $250 billion in goods from China.

Those tariffs cover 12 percent of U.S. imports, extracting tens of billions of dollars of duty payments from U.S. consumers and importers. The president recently threatened to sock imports from Mexico with tariffs of up to 25 percent over immigration, and he’s weighing tariffs on another $300 billion of imported motor vehicles and parts, all in the name of “national security.”

None of these tariff actions have been approved by Congress even though the U.S. Constitution gives it, not the president, authority over trade. Article 1, Section 8 grants Congress the exclusive power “to lay and collect … Duties” and other taxes, and “to regulate Commerce with Foreign nations.” The Founding Fathers left the door open for a “tariff congress” but never a “tariff man” as chief executive.

Over the decades, Congress has delegated certain authority on trade to the president. This includes the ability to negotiate free-trade agreements for congressional vote and impose tariffs in times of national emergency or genuine national security threats. By any fair assessment, President Trump has abused that authority to pursue his own protectionist agenda.

Take the administration’s national security justifications, for example. In March 2018, the Trump administration began imposing duties on imported steel and aluminum under Section 232 of the Trade Expansion Act of 1962, which enables to president to do so for national security reasons.

The duties were imposed even though the U.S. military requires only about 3 percent of the 80 million tons of steel produced each year by domestic industry, and most of the steel we do import comes from dependable allies.

Now the president is threatening tariffs on imported cars and parts under Section 232, which doesn’t even pass the laugh test. 

Last summer, the Trump administration began imposing Section 301 duties against China over its failure to protect intellectual property (IP). The core complaints against China are legitimate, but the escalating duties imposed by the administration are indiscriminate and out of proportion to anything the Chinese government has done.

Section 301(a)(3) of the Trade Act of 1974 states that any U.S. action against another country’s unfair trade practices “shall be devised so as to affect goods or services of the foreign country in an amount that is equivalent in value to the burden or restriction being imposed by that country on United States commerce.”

The initial tranche of duties on $50 billion of imports from China was at least in the ballpark of the amount the U.S. International Trade Commission has estimated that U.S. companies lose in sales because of China’s IP practices.

The additional tariffs imposed or threatened on hundreds of billions more in Chinese imports go far beyond the intentions of Section 301 and are nothing but costly and destructive expressions of presidential pique. 

In early June, President Trump cited yet another law, the 1977 International Emergency Economic Powers Act (IEEPA), to threaten escalating tariffs on imports from Mexico to coerce more cooperation over immigration. The law was intended to give the president narrowly defined powers to sanction hostile foreign governments.

Past uses have included freezing Iranian assets after it seized the U.S. Embassy in 1979; it has never been used to impose duties on a friendly country over a non-trade issue. Immigration controversies aside, Mexico is a friend by any reasonable standard.

President Trump has temporarily backed away from tariffs against Mexico, but Senate Finance Chair Charles Grassley (R-Iowa) correctly noted, “Trade policy and border security are separate issues. This is a misuse of presidential tariff authority and counter to congressional intent.”

Sen. Grassley is planning hearings soon exploring ways to further define and curb a president’s ability to impose Section 232 duties. Those hearings could be an important first step in restoring to Congress its constitutional authority over trade policy.

To do so effectively, any congressional action would most likely need to take effect before more duties are inflicted, apply retroactively to undo some damage from past unilateral tariffs and apply to Section 301 and the 1977 IEEPA in addition to Section 232. The principle is the same and the stakes just as high.

As our Founding Fathers so clearly intended, a president should not have the arbitrary power to impose tens of billions of dollars in taxes on the American people without direct congressional approval.

Daniel Griswold is a senior research fellow and co-director of the Trade and Immigration Project at the Mercatus Center at George Mason University.