Our “First Principles Series” is a new awareness effort by Beacon to restore our nation’s commitment to individual liberty based on the principles of free markets, private property, and limited government that have made America the best nation in the history of the world. Often, politicians eager to appease constituents can stray from these principles. And voters can be misled into believing that policies violating these principles are in their best interest when they’re not. This series is designed to set the record straight and make the case for standing up for our most important principles, even when it might be politically expedient to ignore them. Today’s posts are the first of many in this series.
President Trump’s tariffs are not only bad economic policy, but they are also likely illegal and undermine core constitutional principles. America was founded on the idea that the power to tax cannot reside in a single person and that the exercise of free trade by the American colonists was a natural right. The Declaration of Independence’s list of grievances against King George specifically cites him “For cutting off our Trade with all parts of the world” and “For imposing Taxes on us without our Consent.”
The power to tax is dangerous and ripe for abuse. As Chief Justice Marshall of the Supreme Court famously stated, “the power to tax is the power to destroy.” To guard against the potential abuses of taxation, the Founders explicitly placed the power to tax, which includes tariffs, in the hands of the people’s representatives in Congress under Article 1, Section 8 of the Constitution. The Constitution also places the authority to regulate commerce with foreign nations in Congress. In short, the Constitution forbids the ability of a single person from imposing taxes on the American people and from unilaterally making American trade policy.
But this is precisely what President Trump has done. Although the president may exercise authority to impose tariffs in limited circumstances, the president must at the very least have clear congressional authorization to do so. The Trump Administration’s alleged authority to impose these broad tariffs is the International Emergency Economic Powers Act of 1977 (IEEPA). This statute authorizes the president to impose sanctions or freeze foreign assets to protect the United States from foreign threats. This is why, until now, no president, including Trump in his first term, has ever tried to use the IEEPA to impose tariffs.
And herein lies the problem. The Supreme Court, under the major questions doctrine, has made clear that for the executive branch to make policy with “vast economic and political significance” it must have explicit authorization to do so from Congress. Moreover, even if Congress intended to give the president the authority to tax and levy wide-ranging tariffs, this would violate the nondelegation doctrine, which forbids Congress from giving away its legislative authority to the executive branch.
The separation of powers in the Constitution is a crucial bulwark against tyranny and for preserving liberty. Even if President Trump’s far-reaching tariffs are good policy (read here why they are not), we must follow the Constitution in enacting them.