The signature policy proposal of Donald Trump’s third campaign for the presidency is a tariff: a tax of 60 percent imposed on all imports from China and 10 percent on imports from any other country. Not only does he want this tax hike, which would raise about $291 billion or 1 percent of GDP when fully implemented, but he says he’ll do it unilaterally. “I don’t need Congress, but they’ll approve it,” Trump declared at a September 23 rally. “I’ll have the right to impose them myself if they don’t.”
This is a rather enormous policy change for a president to undertake unilaterally, and one of dubious legality. For comparison, the hike Trump is considering is over twice as large as the tax increases used to fund Obamacare. (And make no mistake — tariffs are tax increases.) Experts like former World Trade Organization (WTO) deputy director-general Alan Wm. Wolff have argued that no law passed by Congress gives the president the power to levy across-the-board tariffs along the lines Trump proposes.
Even so, Congress has given the executive branch a remarkable amount of flexibility to set tariffs. This is a mistake. Members of Congress, whether or not they support Trump’s tariff plans, should be able to agree on this much: As the Constitution lays out in the taxing clause, it’s Congress’s job to set taxing and spending policy for the United States. It’s been that way for the US’s whole history, it’s the traditional role of legislatures in all democratic countries, and putting this power instead in the president’s hands cuts the people’s representatives out of the process of determining how they are taxed — a concept that goes back to before the American Revolution.
While Congress has in the past given up its power to tax in the case of trade to the president and the cabinet, it should reverse that trend. One way to do so is to pass a bill like Sen. Rand Paul’s No Taxation Without Representation Act to ensure that any changes in tariffs are subject to a congressional vote before taking effect.
The president’s tariff powers, explained
The presidential power to impose tariffs does not originate from a simple bill or program; rather, it slowly accreted over time, with a particular expansion over the past decade as the Trump administration rediscovered authorities in old laws that enabled it to wage a trade war with China and protect the steel industry.
Section 232 of the Trade Expansion Act of 1962, for instance, gives the president the right to levy tariffs upon the secretary of commerce’s recommendation without asking Congress. This was the authority Trump used to slap tariffs on steel and aluminum back in 2018, tariffs which Biden recently expanded slightly.
Section 301 of the Trade Act of 1974 gives a similar power to impose tariffs based on unfair trade practices by foreign nations on the advice of the Office of the US Trade Representative. Trump used this power to impose sweeping tariffs against China. Biden has made liberal use of this power, too, expanding tariffs on steel, batteries, solar cells, and electric vehicles from China.
Finally, there’s Section 201 of that same 1974 law, which allows tariffs against imports that “seriously injured or threatened … serious injury” to domestic companies. Trump and Biden have used this to justify tariffs on washing machines and solar cells from most countries.
Even if Trump couldn’t implement a full 10 percent tariff on all imports with his executive powers — because the previous authorities apply only to specific industries or specific countries — he could make a lot of progress toward that goal. His 60 percent tariff on all Chinese imports, for instance, may very well be possible because it’s narrowly targeted at one nation. He and Biden have proven that the president can, without Congress, raise taxes on imports very significantly.
I happen to think most of both Trump and Biden’s tariffs were wrongheaded and that Trump’s plan for more sweeping tariffs amounts to a significant tax increase on the poor and middle class that would hurt US exports, invite retaliation from other countries, harm America’s international reputation, and fail to create any jobs for people who need them. (Vice President Kamala Harris has attacked the Trump tariff plan as a “sales tax” but hasn’t disavowed Biden’s tariff policies.)
That said, you don’t have to agree with me on the merits of the tariffs to agree with a narrower point about the process: This shouldn’t be the president’s decision. Congress is the branch of government invested with the power to tax and spend, and these trade laws have narrowed its power to the benefit of the executive in a way that is difficult to justify. The Social Security Administration is not allowed to set Social Security taxes, nor is the Department of Health and Human Services allowed to set Medicare taxes, but the Department of Commerce and the Office of the US Trade Representative are explicitly authorized to recommend tariffs that take effect upon the president’s approval. Why is trade the exception?
One possible rationale might be that tariffs are a tool of foreign policy, which is traditionally an area where the executive has more autonomy. But even in that context, the tariff powers are extraordinary. Congressional authority is necessary to approve treaties and declare war; the War Powers Resolution means that armed conflict short of declared war needs congressional approval, too, as does funding conflict. Allowing a tariff increase without any congressional vote at all is a much greater deferral of authority.
There are more specific, partisan reasons why Republicans and Democrats should be concerned about the presidential tariff power. For the past half-century, the GOP has been mostly a free-market, anti-tax party, which should naturally lead to skepticism of taxes and especially of unilateral presidential powers to levy taxes. As outgoing Senate Minority Leader Mitch McConnell (R-KY) put it recently, “I’m not a fan of tariffs. They raise the prices for American consumers. I’m more of a free-trade kind of Republican that remembers how many jobs are created by the exports that we engage in.” The large number of Republicans still holding to that worldview should support curbing the presidential power to levy tariffs.
Democrats, even those sympathetic to tariffs and skeptical of free trade, should be wary of consigning a whole area of policymaking to Trump’s whims should he win the election. He demonstrated in his first term that he was very willing to use the tariff powers, more willing than any recent president, and his second term should, if anything, see him use them more promiscuously.
Presidential authority on tariffs also opens the door to corruption. Importers are allowed to petition the Commerce Department for specific waivers from tariffs, an allowance corporations unsurprisingly use to extract special favors. Apple, for instance, got exemptions from anti-China tariffs for iPhones and Apple Watches.
Given what we know about Donald Trump and his clientelist, favor-trading mode of politics, is that really a kind of power he should have? Is it a power Democrats will trust him to use in a non-corrupt manner? Or should Congress have the ability to curtail tariffs and limit opportunities for abuse?
Congress needs to act sooner rather than later
Some presidential powers, like the power to pardon political allies or immunity from prosecution, stem from the Constitution or the Supreme Court’s interpretation of it. But the tariff powers stem from statutes passed by Congress, and they can be rescinded by further acts of Congress.
There were some proposals during the Trump years to require congressional approval for section 232 tariffs, most notably the Trade Authority Act introduced to the Senate by Mark Warner (D-VA) and Pat Toomey (R-PA). That bill has been kept alive in the most recent Congress by Reps. Mike Gallagher (R-WI) and Don Beyer (D-VA). But Gallagher has since resigned from Congress, and Toomey retired in 2022.
More to the point, section 232 is only one of the sources of authority the president can use for tariffs. Sections 201 and 301 of the 1974 Trade Act would remain and could be used to raise taxes unilaterally. The Supreme Court could, in theory, strike down tariffs that overstep congressionally delegated authority, but historically, the courts have deferred to the executive on trade.
The only bill I know of that would tackle the full suite of laws authorizing presidential tariffs is the No Taxation Without Representation Act from Rand Paul. As Paul put it in a statement upon introducing the bill: “Unchecked executive actions enacting tariffs tax our citizens, threaten our economy, raise prices for everyday goods, and erode the system of checks and balances that our founders so carefully crafted.”
I find myself agreeing with Paul on very few issues, but he’s dead right on this one: Taxation is a congressional authority, and that should apply to tariffs as much as anything else.
“To me it’s sensible policy,” Wolff, the former WTO executive and veteran US trade negotiator, told me. He might add carve-outs to give the executive flexibility in emergency cases (like when another nation levies a tariff against us first, or as part of a sanctions regime against a state like Russia or Iran), but broadly, the principle that Congress should authorize tax increases makes sense.
We’re essentially out of time for Congress to act before its preelection October recess, and action may be harder in November and December when we know who the next president will be, and their copartisans may be less willing to support actions to constrain their powers. But the battle will only get harder once a new president takes office and starts proposing tariffs.
The time to act is this year, before that happens and while Congress has an opportunity to reassert its taxing power. The alternative could mean hundreds of billions of dollars’ worth of tax increases issued unilaterally by the president, with Congress unable to stop it.
