Almost everyone is missing the point about tariffs. Congress deserves as much heat as President Trump is getting. Or as much credit.
Those who sound off on Trump’s steel and aluminum tariffs never seem to ask, “How can a president create a new tax [which is what a tariff is] — Isn’t that Congress’ job?”
Our Constitution gives Congress, not the executive branch, the “Power To lay and collect Taxes, Duties, Imposts and Excises,” plus the power “To regulate Commerce with foreign Nations.” These are among Article I’s grant to Congress of “all legislative powers.”
But Congress has passed the buck for decades by abdicating its authority, delegating power to the president not only on tariffs but also on trade, foreign policy, immigration, control of public lands, and a multitude of other matters.
Every representative and senator who condemns Trump’s tariffs should be asked why they don’t accept responsibility themselves.
Congress has upset the constitutional separation and balance of power. It has created a system to dodge blame by giving away its authority, then dodged accountability by criticizing how that delegated power is used. Not only is this power exercised by the president but it also is re-delegated into the bowels of the bureaucracy; there decisions are made by non-elected officials who never answer to the public.
This is not about letting the executive branch fine-tune certain details. Whether to assess $60-billion of tariffs upon China alone is a major decision which should be made by Congress.
The White House quotes the tariff authority of “Section 232 of the Trade Expansion Act of 1962, as amended, [which] gives the executive branch the ability to conduct investigations to ‘determine the effects on the national security of imports’ … [and] ‘to adjust the imports’ as necessary, including through tariffs or quotas.”
That enables Trump to act on his Commerce Department’s finding that current steel and aluminum imports “threaten to impair the national security.” But such assessments should be evaluated by Congress, which then should resolve tariff issues.
Whether to declare war is to be decided by Congress; likewise, Congress should decide whether to declare a trade war. But too often Congress has been passive as presidents engaged the United States in significant military actions, just as it defers on trade policy.
Our statute books are filled with laws authorizing the president to make foreign policy decisions simply by labeling his judgment call as an official “finding.” Yet the Constitution declares that Congress has the duty to “define and punish … Offences against the Law of Nations.”
Instead, Congress plays games to evade responsibility. Another recent outrageous example was Congress’ collusion in President Obama’s nuclear deal with Iran, involving payment of more than $100-billion.
In the summer of 2015, members of Congress expressed outrage at the Iran deal, but feigned helplessness because Democrat Senators blocked legislation to “disapprove” the agreement. But disapproval was required only because Congress had already given advance approval to the deal. That May, the Senate voted 98-1 and the House voted 400-25 for H.R. 1191 which stated the Iran deal “does not require a vote by Congress for the agreement to commence.” [This language is codified at 42 U.S. Code Sec. 2160e(c)(1)(D).]
So Congress voted for the Iran deal before they later voted against it (or some did). The same pattern of giving a blank check is being followed with presidentially imposed tariffs.
Whether the steel and aluminum tariffs are good or bad is less important than the question of who should make the decisions on tariffs. And tariffs are only one among the multitude of major powers that have been delegated to the president and the bureaucracy. This has also spawned the explosive growth in regulations and shifted huge power from Congress to the executive branch.
The only cure is for Congress to get its act together and to face up to its constitutional duties on tariffs and everything else. Meantime, we the people should not let it dodge responsibility nor try to shift the blame.
Former Congressman Ernest Istook now teaches political science at Utah Valley University.
