Senate Moves to Reclaim Tariff Powers

Senators, including some Republicans, are moving to reclaim Congress’ constitutional authority over tariffs in the wake of President Donald Trump’s aggressive tariff hikes.

On Wednesday, the Senate, with four Republicans voting in favor, passed a resolution that would terminate the national emergency Trump declared in order to impose tariffs on Canada, Mexico, and China.

The next day, two senators, one Democrat and one Republican, introduced a bill to subject presidentially declared tariffs to congressional approval.

Shirking Its Duties

That Congress has the sole authority to impose tariffs is undeniable. As the March 24 print edition of JP explained:

The U.S. Constitution clearly and unambiguously delegates to Congress, in the very first clause of Article I, Section 8, the authority “to lay and collect Taxes, Duties, Imposts and Excises” — “duties” being a synonym for tariffs. Two clauses later, the Constitution also vests in Congress the power “to regulate commerce with foreign nations.”

Furthermore, although Congress, over the last century, has delegated its tariff power to the President (to avoid the blame for any tariff’s negative effects),

In general, no branch of the federal government has the authority to cede any of its constitutionally delegated powers to another branch; otherwise, the entire premise of separation of powers is null and void.

Emergency Exit

In early February, using authority (unconstitutionally) granted to him under the International Emergency Economic Powers Act of 1977, Trump declared the U.S. trade deficit a national emergency. This enabled him to slap tariffs of 10 to 25 percent on imports from China, Canada, and Mexico.

While most Republicans acquiesced in this move — as most Democrats would surely do if Trump were one of them — the Senate on Wednesday decided to fight back. The upper chamber voted 51-48 to pass a resolution sponsored by Senator Tim Kaine (D-Va.) that would rescind Trump’s national emergency.

“The vote stands as the first major break with Trump since the start of his second term from a Republican-controlled chamber that has otherwise been mostly compliant,” observed Politico.

Party Poopers

Four Republicans joined the Democrats in voting for the resolution. Three are moderate-to-liberal: Senators Mitch McConnell (R-Ky.), Susan Collins (R-Maine), and Lisa Murkowski (R-Alaska). One, however, is most certainly not: Senator Rand Paul (R-Ky.), who cosponsored the resolution.

Collins and Murkowski have practical reasons for opposing tariffs on Canadian imports. Their states border Canada and thus engage in a great deal of trade with that country. Murkowski told Politico — “without equivocation,” the publication noted — that “the tariffs on Canada are going to hurt my state.”

Paul, naturally, had somewhat more principled rationales for refusing to bow to Trump’s demand that he “get on the Republican bandwagon,” which Trump claimed would help stem the tide of fentanyl flowing into the country. Wrote Reason:

In remarks on the Senate floor, Paul mocked the idea that drug dealers would pay tariffs in the first place. He also stressed the economic damage that tariffs are likely to cause for American families, businesses, farmers, and more. He pointed to the fact that the Trump administration bailed out farmers in the wake of the 2018 tariffs and called that “an acknowledgement” that tariffs create costs for Americans. He pointed to estimates showing that tariffs will increase the cost of homes, cars, and many consumer goods.

“Are we going to have to bail out the car companies too? Are we going to have to bail out everybody who’s going to be hurt by these tariffs? It’s not a good idea,” he said. “Despite arguments to the contrary, Americans know tariffs are a tax they are going to have to pay.”

Tariff Sheriffs

Just hours before the Senate passed the resolution, Trump announced he was imposing even more tariffs of at least 10 percent on a variety of countries.

The following day, Senators Chuck Grassley (R-Iowa) and Maria Cantwell (D-Wash.) introduced a bill that would subject most presidential tariffs to congressional review. Specifically, it would require the president to notify Congress of any new or increased tariffs within 48 hours of ordering them. As part of the notification, the president would have to explain his reasons for imposing the tariffs and describe their potential effects on businesses and consumers. If Congress failed to pass a joint resolution approving the tariffs within 60 days, they would expire. Moreover, Congress would be empowered to terminate any tariffs at any time simply by passing a resolution.

In a press release, Cantwell said:

Trade wars can be as devastating [as real wars], which is why the Founding Fathers gave Congress the clear Constitutional authority over war and trade. This bill reasserts Congress’s role over trade policy to ensure rules-based trade policies are transparent, consistent, and benefit the American public.

“For too long, Congress has delegated its clear authority to regulate interstate and foreign commerce to the executive branch,” Grassley said in the same release. The bill he and Cantwell introduced, he asserted, would “reassert Congress’ constitutional role and ensure Congress has a voice in trade policy.”

Whether these measures will ultimately become law remains to be seen. The Grassley-Cantwell bill is just starting its journey, and a similar bill in the House has no Republican cosponsors. The resolution nixing the February national emergency has already been declared dead on arrival in the House by Speaker Mike Johnson (R-La.), and Trump has vowed to veto it in the unlikely event that it ever reaches his desk.