Perhaps it’s fitting that on Constitution Day, the president has again moved to escalate the ongoing trade war with China, exercising power that is expressly granted to Congress in the Constitution, but which Congress has abdicated.
Although Trump’s push for new tariffs on another $200 billion worth of goods is within his power, it should not be. Congress can and should fix that as the founders had concrete reasons for granting that power to lawmakers, not the executive.
The Constitution itself reads, in Article I, Section 8, “The Congress shall have power to lay and collect taxes [and] duties” and “to regulate commerce with foreign nations.”
Since those words were written, Congress has slowly retreated from this responsibility. In 1934, lawmakers first granted the president the power to reduce tariffs under the Reciprocal Tariff Act — although the authority then granted to the president was limited. After that, the president gained powers to negotiate tariffs and trade agreements as well as to implement them.
The origin of modern broad presidential power on trade comes, like so many other things, from a justification of national security. Specifically, the president was granted the power to take action to “adjust the imports of an article and its derivatives” based on national security concerns as outlined in Section 232 of the Trade Expansion Act of 1962. It is under that legislation that Trump has pursued his aggressive trade policy with China — including the latest escalation of power, never mind that little of his public discussion of trade focuses on the national security threats that supposedly legitimize his actions.
What was the Founders’ intent with granting Congress and not the president the power on trade? For one thing, they recognized that tariffs and duties had tremendous impacts on the economy, including the power to cause significant destruction. Like so many other consequential actions of government, such as declaring war, the founders entrusted this power to Congress.
Unlike the president, Congress is generally closer to the people — elected more frequently more directly, and more in touch with constituent needs. It will be, as we are seeing now, more sensitive to the destructive impact of tariffs on the communities they represent. Because of the accountability of more frequent contact and elections, Congress also cares more about the people, whose votes they need to stay in office. Moreover, power in Congress is built on a process of carefully negotiated compromises, and is thus far more likely to arrive at prudent solutions than an unchecked executive.
It is easy to see how many members of Congress would be eager to find less destructive ways to push back on China’s unfair practices than the escalating trade war, which has significant negative impacts on American industry and consumers. The needs of the people, reflected in the policy, and the accountability of lawmakers, is exactly what the Constitution intended for congressional authority over trade.
In ceding power to the president on trade and failing to take action to rein in that authority, lawmakers seem worried that actually making laws — some of which will necessarily be unpopular — will cost them their seats. That worry seems to outweigh the responsibility they are charged with in the nation’s founding document.
On Constitution Day, that trade-off must be reconsidered. It is Congress, not the president wielding hastily signed executive orders, that should make trade policy.
