Tariffs and the Constitution

[Brian4Liberty]

Tariffs and the Constitution
by Andrew P. Napolitano | Feb 6, 2025

The taxing power in the federal government resides in the Congress. The Constitution states that Congress has the power to “lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts” of the federal government. Indeed, in order to emphasize the location of this power in the Congress, the Constitution also requires that all legislation “for raising Revenue shall originate in the House of Representatives.”

So, if only Congress can impose taxes, how can the president impose tariffs?

Here is the backstory.

However one characterizes a tariff, since it consists of the compulsory payment of money to the federal government, it is a form of taxation. It is — to use James Madison’s language — a duty or an impost. The federal government survived on duties and imposts — some of which were imposed on the states — from the time of its creation in 1789 until the War Between the States. Even under Abraham Lincoln, when unconstitutional income taxes were imposed, they were done by legislation, not executive fiat.

Then came Franklin D. Roosevelt and a congressional ban on the exportation of armaments to be implemented at the president’s discretion. This sounds fairly benign, yet it fomented the supercharged presidency that we have today. When Congress banned the sale of American arms to foreign countries, it did so by giving FDR the power to decide what to ban and upon which countries to impose the ban. Then it did the unthinkable: It made a violation of the president’s fiats a federal crime.

I call this unthinkable because under the Constitution’s Due Process Clause jurisprudence, at the federal level only Congress can make behavior criminal.

In defiance of FDR’s ban, Curtiss-Wright Export Corporation, an American manufacturer of military hardware, sold armaments to the government of Bolivia, and the Department of Justice persuaded a federal grand jury to indict the corporation. Then a federal judge dismissed the indictment on the constitutional basis that only Congress can decide what behavior is criminal and it cannot give that power to the president.

The trial court merely enforced the well-known and universally accepted non-delegation doctrine. It stands for the principle that the three branches of government cannot delegate away any of their core powers. Among Congress’ core powers is writing laws and deciding what behavior is criminal. By giving away this power to the president, the trial court ruled, Congress violated the non-delegation principle, and thus FDR’s determination that arms sales to Bolivia was criminal was itself a nullity.

The government appealed directly to the Supreme Court. Had the court simply reversed the trial judge and sent the case back to him for trial, we might never have heard of this case or the policy it established.

Yet, instead of a simple reversal, the Court issued a treatise on presidential power. Using truly novel rationale written by Justice George Sutherland, the court held that, even though the power to establish foreign policy is not expressly given to the president, that power — are you ready for this? — traveled across the Atlantic in 1789 from King George III to President George Washington and was permanently reposed in the presidency.

It doesn’t stop there.

In furtherance of his pursuit of foreign policy, the president need not consult the Congress and need not require legislation. Stated differently, because the president, Justice Sutherland wrote, is the sole keeper of the country’s foreign policy, he requires tools in order to do so, and among the tools available to him to effectuate that policy is the power to make behavior that defies his foreign policy a crime; also among those tools is the power to tax in furtherance of his foreign policy.

This logic appears nowhere in the Constitution. Justice Sutherland, who was born in Great Britain, analogized American presidential power in foreign relations to that of British monarchs in the era before parliamentary supremacy. And this utter nonsense is still the law today!

Now back to tariffs.

Regrettably, the Curtiss-Wright case — though wrongly decided and absurdly reasoned — is still good law today, and presidents from FDR to Donald Trump have relied upon its authority for their unilateral decisions on American foreign policy. I call this regrettable because it constitutes a pronounced transfer of power from Congress to the president, in defiance of the Constitution.

FDR gave us the welfare state. Perhaps Donald Trump will undo it.

But all this happens at the price of constitutional norms. Before Curtiss-Wright — and even since — the Supreme Court ruled that all federal power comes from the Constitution and from no other source. That’s because James Madison and his colleagues created a central government of limited powers — limited by and articulated in the Constitution.

But Curtiss-Wright says some federal power comes from Great Britain! So, where does this leave us?

The Congress is not a general legislature like the British Parliament, and the president is not a monarch. To argue that powers come from some source other than the Constitution is anti-constitutional. And in this case, to claim with a straight face that George III’s powers were reposed into the American presidency is an absurdity that would have been rejected summarily and unambiguously by the Framers.

History and politics often change the rules. Until 110 years ago, with the exception of Lincoln’s presidency, the federal government operated under the Madisonian model: The federal government can only do that which is expressly authorized by the Constitution.

From and after the dreadful Progressive Era, the Wilsonian model has prevailed — the federal government can address any national problem for which there is a political will, subject only to that which is expressly prohibited by the Constitution. Add to the Wilsonian model the nonsense from Curtiss-Wright, and you have a presidency that can tax any foreign event and create a domestic crime.

Even George III lacked such powers.
...
https://ronpaulinstitute.org/tariffs-and-the-constitution/

 

[CCTelander]

But, but, but … muh tariffs!

Nobody cares about the CONstitution when it stands in the way of doing what they want. Trump fans have demonstrated this repeatedly as have most paleocons.

Judge Nap will just be dismissed as a deep state swamp creature and excuses will be made to make it ok for Trump to do whatever he wants, mainly because some of what he wants aligns well with his fans’ and paleocons’ preferences.

Long live the king!

 

[osan]

Mr. Rock, meet Mr. Hardplace.

The problems here are manifold, but the essence of the root problem is that the nature of all American "government" has degenerated to such a degree that we can no longer rely on the so-called "system" to correct itself via the instrumentalities intended for such purposes. This has arisen largely due to the fact that the American people are not united in the fundamentals of what it is to be American. The schism between "left" and "right, "conservative" and "progressive" is so deeply radical, we see these yawning chasms between what Republican and Democrat agents of "government" want and do in terms of policy and the passage of legislation. Herein we see a very profound flaw in the architecture of "government" in America.

Furthermore, the mission of the federal government has experienced vast scope creep. The intent of the Constitution was to limit the fedgov to a precious few tasks including the common defense and courts. That's it. But perversions of the Constitution have lead to welfare states, regulatory empire, promotional empire, military empire, and so on down a dreary list of powers that have been assumed in gross violation of the metes, bounds, and intent of our foundational document.

Governmentally speaking, as things currently stand America is a failed nation. As such we are faced with the choice of how to proceed. We could allow things to continue as they have been for the past 150 years and more, or we could decide to make corrections. If we choose the latter, as is apparent with the reelection of Trump for a second term, then we face the question of how to proceed. Given our current state of political reality, it is quite unlikely that there exists any meaningful possibility for making the necessary adjustments working within the normal delimiters of the system. That is because the system is so very broken. This fact then narrows our choices to "do nothing" and "take extraordinary measures". The latter carries huge risk, but is the only way that holds any reasonable chances of succeeding.

And so we can wring our hands and do nothing because of the grave risks associated with extraordinary action, in which case we as a nation are as good as dead, or we can take extraordinary action, and bear the risks like men rather as shrinking violets. The worst that can happen in the latter case is that we meet with failure and are doomed the same as in the case where we default. The fact that the extraordinary measures being taken by Trump are, for many, very scary is good. Not only should they be scary, they should be terrifying for everyone. It has been our collective failure to BE the "government" which has lead to our currently atrocious circumstance. Let it linger in the hearts of all that we don't ever allow ourselves to fail ourselves again.

Trump probably has the momentum at this time to invoke his NDAA powers wherein he basically declares martial law, assumes those sweeping powers, suspends Congress, investigates and audits everybody, apprehends all suspects, renders them to Gitmo, and executes them by the hundreds of thousands. And yet he has not done that, so at this point even though we are behooved to keep sharp eyes on everything this administration does, we should understand that our egregious failures of the past has its price, and if we want to clip tyranny's wings, we then must perforce bear those frightening risks of things running amok. There are no free lunches. Let the bitter price and the foul taste of this giant shit sandwich linger for generations to come.

Let us learn the lessons and err no more so we will never again have to assume such potentially disastrous risks. Or not. Choice is ours.

 

[Swordsmyth]

Judge Swamp is technically correct, the worst kind of correct.
He wants to let the uniparty Congress be a roadblock to what is necessary to save America and the Constitution even though they are the ones who gave power to the Presidency that every uniparty President has used on behalf of the deepstate.

In case nobody noticed, the other side is not playing by the rules, and we can't hogtie ourselves by unnecessarily playing by the rules until we are in a position to force everyone to play by the rules and that won't be until we have saved America and ousted the uniparty from power.

 

[osan]

Judge Swamp is technically correct, the worst kind of correct.
He wants to let the uniparty Congress be a roadblock to what is necessary to save America and the Constitution even though they are the ones who gave power to the Presidency that every uniparty President has used on behalf of the deepstate.

In case nobody noticed, the other side is not playing by the rules, and we can't hogtie ourselves by unnecessarily playing by the rules until we are in a position to force everyone to play by the rules and that won't be until we have saved America and ousted the uniparty from power.

And what does all this reveal?

We are at war, literally. We are, and have been, in a civil war for decades. It is not a hot war. It is our own domestic roll of cold warfare, yet so few have been able to see it. It has only been since 9/11 that this truth has been coming progressively more apparent. Why Theye have chosen to reveal themselves, who can say? Seems a gross miscalculation to me. Perhaps Theye thought we'd been so thoroughly marinated in fear that we would do their bidding no matter what it might be? Or are Theye not really on the ropes as it now appears? We must bear in mind that while Theye do not likely have their hands directly on the silo captains' hands, they most likely have them on the hands of those who work in places like the Wuhan bioweapons facility. I would not be too fast to cheer Trump's reascension... not just yet. Time will tell.

Foists of apocalyptic "if we can't have it, nobody can" plagues upon the world aside, we nonetheless are far from recovered from the ravages of the globalist cabal. The comments of that rageshrieking Democrat dreg the other day about being at war is actually true, only not in the sense she meant it.

If you look at the major political movements of the past 100+ years through the lens of Quiet Wars†, everything begins to come into sensible focus. This is why though very wary of Trump's current wave of measures, I nonetheless welcome them in any event because up until now we've been doing the same political things over and over, decade over decade expecting different results. Given the direction in which things have been going, especially these past four years, we no longer have that much to lose, except our cheap and petty comforts and conveniences, given how whittled down as our rights and freedoms have become. I say throw the dice, come what may. Let us have courage for once and act like men.

Nothing is worse than sitting in that pot as the water grows ever warmer.

† Tip of my hat to Bill Cooper, may he RIP. He was a good man.

 

[osan]

But, but, but … muh tariffs!

Nobody cares about the CONstitution when it stands in the way of doing what they want. Trump fans have demonstrated this repeatedly as have most paleocons.

Judge Nap will just be dismissed as a deep state swamp creature and excuses will be made to make it ok for Trump to do whatever he wants, mainly because some of what he wants aligns well with his fans’ and paleocons’ preferences.

Long live the king!

All you claim may in fact prove out, but only time will tell.

So my question to you then is what would you see done? And here I ask not for pie in the sky things that were never going to happen, but actual things that one could do in the real world. Take up arms and start shooting? Say "fuck it, get me a beer woman" and sit and do nothing as you wait either for someone else to make things all better?

The sorts of change we need in the context of an environment of unbridled tyranny cannot be had along "normal" avenues. So what, then, do we DO?