Kara Sears
Tariff laws are typically proposed by the legislative branch of the government, which is Congress in the United States. However, in recent years, the executive branch, led by the President, has increasingly taken control of proposing and imposing tariffs, especially in cases of economic emergency or national security threats. This shift has raised concerns about the constitutionality of such actions and the potential infringement on the separation of powers. As a result, there have been efforts in Congress to reclaim their authority over tariff laws and re-establish a system of checks and balances.
| Characteristics | Values |
|---|---|
| Power to propose tariff laws | Congress |
| Execution of tariff laws | President |
| Tariff laws bypassing APA requirements | Presidential authority |
| Tariff laws bypassing APA requirements | Executive authority |
| Tariff laws bypassing RFA requirements | Presidential authority |
| Tariff laws bypassing RFA requirements | Executive authority |
| Power to revoke authority | Congress |
| Power to change tariffs rates | President |
| Power to negotiate bilateral trade agreements | President |
| Power to adjust tariffs based on threats to national security | President |
| Power to impose tariffs if ITC finds import surge threatening US domestic industry | President |
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What You'll Learn
- The US Constitution grants tariff-imposing powers to Congress
- The Executive Branch has increasingly controlled when and how tariffs are placed
- Congress can revoke powers delegated to the President
- The Trade Expansion Act of 1962 allows the President to adjust tariffs based on national security threats
- Congress could repeal specific tariff authorities
The US Constitution grants tariff-imposing powers to Congress
The US Constitution grants Congress the power to impose tariffs. Article I, Section 8 of the Constitution states:
> "The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, ... but all Duties, Imposts and Excises shall be uniform throughout the United States."
Tariffs are a form of tax on imports, and as such, fall within Congress's purview. However, in recent years, Congress has passed laws that have given the President and the executive branch some control over when and how tariffs are placed on goods entering the United States. For example, in 1934, Congress passed the Reciprocal Trade Agreements Act, which allowed President Franklin Roosevelt to change tariff rates by 50% and negotiate bilateral trade agreements without additional approval from Congress.
The Trade Expansion Act of 1962 is another example of a law that has given the President the authority to impose tariffs. Under Section 232 of this Act, the President can adjust tariffs based on threats to national security. This is the authority that President Trump used to impose tariffs on steel and aluminum imports in 2018.
Despite these delegations of authority to the executive branch, it is important to note that Congress cannot relinquish its core powers, and the executive branch cannot assume them without a constitutional amendment. Taxes and tariffs are core powers of the legislative branch, not the executive branch. As such, there have been recent efforts in Congress to reclaim its power to impose tariffs and revoke the authority it has delegated to the President.
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The Executive Branch has increasingly controlled when and how tariffs are placed
The US Constitution grants Congress the power to levy tariffs. However, in recent years, the Executive Branch, led by the President, has increasingly controlled when and how tariffs are placed on goods entering the United States. This shift has occurred due to various laws passed by Congress that have delegated tariff authority to the President.
One example of this delegation of power is the Reciprocal Trade Agreements Act of 1934, which enabled President Franklin Roosevelt to change tariff rates by 50% and negotiate bilateral trade agreements without seeking additional approval from Congress. This marked a significant expansion of executive power over tariffs.
Another factor contributing to the Executive Branch's control over tariffs is the use of specific trade statutes, such as Section 232 of the Trade Expansion Act of 1962, which allows the President to involve the Secretary of Commerce in determining if imported goods threaten national security. The President can then take appropriate action, including imposing tariffs, based on these findings.
The agility of executive authority in imposing tariffs can be advantageous, especially when Congress is polarized and legislative processes are slowed down. The executive branch's ability to act quickly on tariffs can safeguard domestic industries from sudden import surges or unfair competition, protecting jobs and national security interests.
However, the increasing control of the Executive Branch over tariffs has raised concerns about transparency and accountability. There is often minimal requirement for public input or justification for tariff impositions, leading to perceptions of arbitrary decision-making. This lack of transparency can create economic uncertainty, disrupt supply chains, and heighten tensions between different branches of the government.
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Congress can revoke powers delegated to the President
The power to levy tariffs is granted to Congress by the US Constitution. However, over time, Congress has delegated this power to the President, who can now control when and how tariffs are placed on goods entering the United States. This delegation of power has raised concerns about the infringement of the separation of powers, which is designed to ensure a system of checks and balances.
Congress can also pass a new law to override an executive order issued by the President, but only for those orders enacted "pursuant to powers delegated to the President" by Congress. Additionally, Congress could repeal specific tariff authority or require tariffs proposed under such authorities to be voted on in Congress. Legislative changes could also be made to tighten the criteria for imposing tariffs. For instance, Congress could introduce sunset provisions requiring the regular re-evaluation of tariff measures or implement mandatory reporting, compelling the executive branch to justify tariff actions with detailed reports.
Furthermore, Congress could establish a process for a joint resolution of disapproval, enabling it to rescind tariffs through expedited legislative procedures. Legislative changes could also strengthen the judicial oversight of tariff decisions, providing additional safeguards to ensure that trade policies are both lawful and grounded in economic reality.
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The Trade Expansion Act of 1962 allows the President to adjust tariffs based on national security threats
In the United States, the Constitution grants Congress the power to levy tariffs. However, in recent years, the president and the executive branch have controlled when and how tariffs are placed on goods entering the country. This shift in authority has resulted from various laws passed by Congress, such as the Reciprocal Trade Agreements Act in 1934, which allowed President Franklin Roosevelt to change tariff rates by 50% without seeking additional approval from Congress.
The Trade Expansion Act of 1962 is another significant legislation that empowers the President to adjust tariffs based on national security threats. Specifically, Section 232 of this Act authorises the President to modify the imports of goods or materials from other countries if they are deemed to threaten national security. This can be achieved through the imposition of tariffs or other means.
The process outlined in Section 232 involves an investigation by the Department of Commerce into a particular import. If national security threats are identified, the Secretary of Commerce provides a report with recommendations for addressing the issue. The President then has the authority to concur or take alternative actions, including adjusting imports or taking other lawful non-trade-related actions.
The Trade Expansion Act of 1962 has been invoked on several occasions to address concerns related to steel and aluminium imports. For example, in 2018, President Trump utilised Section 232 to impose tariffs on these imports, citing national security grounds. Similarly, in 2019, Commerce Department Secretary Wilbur Ross presented a confidential report concluding that steep tariffs on foreign automobile imports were justified due to national security concerns.
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Congress could repeal specific tariff authorities
The US Constitution grants Congress the power to levy tariffs. However, in recent years, Congress has passed laws that have given the President and the executive branch control over when and how tariffs are placed on goods entering the United States. This has led to concerns about the unconstitutional delegation of authority from Congress to the President.
Congress has the ability to revoke most or all of the authority it has delegated to the President regarding tariff laws. For example, Congress could repeal specific tariff authorities, such as Sections 201 and 301, or require that tariffs proposed under such authorities be voted on in Congress. This would allow Congress to exert more control over tariff policies and ensure that they are aligned with its legislative agenda.
Legislative changes could also be implemented to tighten the criteria for imposing tariffs. For instance, Congress could introduce sunset provisions that require the regular re-evaluation of tariff measures after a set period. This would create a system of checks and balances, ensuring that tariff policies are subject to periodic review and preventing the executive branch from making arbitrary decisions.
Additionally, Congress could strengthen the administrative procedures for implementing tariffs. This could include extending existing rule-making protocols, such as those outlined in the Administrative Procedure Act, to tariff decisions. By enhancing the transparency and accountability of the tariff-setting process, Congress can address concerns about the lack of public input and justification for tariff impositions.
In conclusion, while the executive branch has been delegated significant authority over tariff policies, Congress retains the power to repeal specific tariff authorities and enact legislative reforms to tighten, clarify, and increase oversight of the tariff decision-making process. By doing so, Congress can restore the balance between the branches of government and ensure that tariff policies are subject to the necessary checks and balances.
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Frequently asked questions
The Constitution grants Congress the power to propose tariff laws. However, in recent years, the President and the executive branch have controlled when and how tariffs are placed on goods entering the United States.
While the President does not possess the constitutional authority to create tariffs unilaterally, various statutes—such as the Trade Expansion Act of 1962—have been interpreted to allow presidential tariff actions under the guise of national security or economic emergency.
Yes, Congress could revoke most or all of the authority it has delegated to the President. For example, Congress could repeal specific tariff authority or require tariffs proposed under such authorities to be voted on in Congress.
