The Structure and the Trump Tariffs

On Dec 7, 2025

Are tariffs always taxes? When does a statute granting powers to the president go too far?

These are some of the questions the Supreme Court will address in two consolidated tariffs cases: Learning Resources, Inc v. Trump and Trump v. V.O.S. Selections.

This essay unpacks the principal constitutional issues for you. It examines those issues through the lens of the Constitution’s original meaning, irrespective of any mistaken later interpretations.

When Are Tariffs Taxes?

Tariffs are financial impositions on imported items. The Constitution refers to them as “imposts.” That word, in turn, is part of the Constitution’s larger category of “duties.” (Article I, Section 8, Clause 1)

In the current litigation, both sides claim all tariffs are taxes or all tariffs are regulations of commerce. But from the standpoint of the Constitution, both sides are wrong.

Here’s the background:

Before and during the time the Constitution was adopted, governments employed tariffs for several reasons. Sometimes governments imposed them to raise revenue to fund the government. A tariff designed to raise money was considered a “tax.”

On other occasions, government imposed tariffs at rates so high that they effectively discouraged or banned imports of particular goods. The usual reason for this was to protect local producers or local shippers by pricing foreign goods out of the domestic market. Another reason was to prosecute a trade war against a foreign government. These “prohibitory tariffs” were not considered taxes but regulations of trade. Similarly, if the tariff produced some revenue, but the money was directed solely at funding inspection programs, the tariff was a regulation of trade.

The distinction between imposts for revenue (taxes) and imposts for regulating commerce is crucial for understanding the arguments the American colonists leveled against the British parliament before independence. Americans were willing to pay tariffs levied by parliament in order to regulate trade for the general welfare. But Americans were unwilling to pay tariffs for raising revenue. Because the colonists were not represented in parliament, any efforts by that assembly to raise revenue through tariffs was “taxation without representation.” Taxation without representation violated the sacred rights of all Englishmen not to be taxed without their consent.

The parties in the current litigation are not the first to question the viability of the “tax versus regulation” distinction. But there is no doubt most of the Founders accepted it. And, as we shall see, they wrote it into the Constitution.

A more difficult issue is the following: If the tariff significantly restricts trade but also raises some money, is it a tax or a trade regulation?

Fortunately, the Founders addressed this question. For example, in 1767-1768, John Dickinson penned a series of newspaper op-eds called “Letters from a Farmer in Pennsylvania.” Dickinson’s letters were celebrated and admired everywhere—except perhaps in the British ministry. The “Farmer Letters” made Dickinson an international celebrity. He subsequently served as one of the Constitution’s leading framers, and played a significant role in its final ratification.

Dickinson explained that a tariff was a tax only if levied “FOR THE SOLE PURPOSE OF RAISING A REVENUE” (his capitalization). Thus, a mixed-purpose tariff is a regulation of commerce, not a tax.

It is true that a tariff intended solely to raise money may have the incidental effect of reducing imports. But if that is not a legislative purpose, then the measure is a tax.

The Constitutional Plan

The Constitution assumes this tax versus regulation distinction. In the Taxation Clause, the Constitution grants Congress power to “lay and collect Taxes, Duties, Imposts and Excises” (Article I, Section 8, Clause 1). The phrase is somewhat repetitive, since duties and imposts may (or may not be) taxes, and excises always are. But the effect of the clause is to give Congress authority to adopt tariffs for the purpose of raising revenue.

Congress’s power to impose prohibitory tariffs, on the other hand, comes from the Commerce Clause (Article I, Section 8, Clause 3). This provision permits Congress to “regulate Commerce with foreign Nations,” including prohibitory or regulatory tariffs. (The frequent claim that the Commerce Clause granted only power to sweep away trade barriers is, therefore, incorrect.)

Article I, Section 9 also rests in part on the difference between tariffs-as-taxes and tariffs-as-regulations. Clause 5 reads, “No Tax or Duty shall be laid on Articles exported from any State.” This provision covers both those tariffs that qualify as taxes and those that do not, but still qualify as “duties.” Clause 6 adds, “No Preference shall be given by any Regulation of Commerce or Revenue to the Ports of one State over those of another.” This provision covers tariffs of both kinds.

What About the Trump Tariffs?

The president has repeatedly said that his tariffs serve both to raise money and to regulate trade. And, as a factual matter, they do both raise money and regulate trade. Under John Dickinson’s formulation, therefore, they are regulations of foreign commerce rather than taxes.

But this doesn’t tell us whether the president may impose them. The Constitution says nothing about the president regulating “Commerce with foreign Nations.” That is the prerogative of Congress. Moreover, the Constitution specifies that only Congress holds “the legislative Power” (Article I, Section 1) and that only the president holds “the executive Power” (Article II, Section 1). Isn’t regulating trade a legislative rather than an executive function?

As a matter of fact, during the eighteenth century, in the British system the Crown (i.e., the chief executive) had theoretical authority to regulate trade. But in practice, this authority had been ceded to Parliament, and the Constitution accordingly lodged it in Congress rather than in the executive.

On the other hand, Founding-era legislatures did sometimes grant and define authority for the executive branch. For example, Congress might say that the president could impose or remove a prescribed tariff upon the occurrence of a particular event. We commonly think of this as “delegating” authority to the executive. But I think it is merely Congress defining the scope and conditions of a law, and therefore prescribing the content of the president’s “executive Power.”

As the source of his tariff authority, President Trump relies on two principal statutes. One is the National Emergencies Act of 1976. The other is the International Emergency Economic Powers Act of 1977 (“IEEPA”).

The National Emergencies Act permits the president to declare a national emergency simply by notifying Congress of his decision. The law originally provided that Congress could veto that decision, but the Supreme Court ruled that the congressional veto was unconstitutional. So now the president’s decision is final unless Congress adopts a law contradicting it and the president either signs the law or Congress overrides his veto.

The effect is to allow the president to declare emergencies almost at will.

Once the president has declared an emergency, Section 1701(b) of the IEEPA empowers him to “deal with an unusual and extraordinary threat with respect to which [the] national emergency has been declared.” Then Section 1702 explains how he may “deal with” that threat. It states that the president may

“… regulate, direct and compel, nullify, void, prevent or prohibit … transfer … transportation, importation of, or dealing in … any property in which any foreign country or national thereof has any interest by any person, or with respect to any property, subject to the jurisdiction of the United States …”

If you had trouble reading that passage, it is because this language is the sort of gibberish for which modern Congresses have become infamous. For our purposes, the significant phrase is that the president may “regulate … importation.”

Accordingly, President Trump

Relied on the National Emergencies Act to declare emergencies by executive order, and then
imposed tariffs to “regulate importation” by executive order.

However, the Constitution, when read with its historical and legal background, makes it clear that Congress may not simply abdicate to the president its power to regulate commerce. But by the National Emergencies Act and the IEEPA, Congress seems to have done so. Those laws are only two examples of how Congress has unloaded massive areas of governance onto the executive branch.

Many scholars believe this wholesale transfer is unconstitutional, and the Supreme Court has given some support for that opinion. The court agrees that Congress may charge the executive with important responsibilities, but Congress must define them more precisely and more narrowly. If this view is correct (and I believe it is), then the Supreme Court should strike down the president’s tariffs—not so much because he has exceeded his constitutional power, but because Congress has done so by transferring congressional functions to him.

The Case in the Courts

The current Supreme Court has been willing to void state laws and federal regulations. It also has been willing to interpret federal laws and regulations narrowly. But it has been extraordinarily unwilling to void congressional laws on the grounds that they exceed Congress’s enumerated powers.

In continued defiance of the media’s efforts to label the court as “conservative,” the justices repeatedly have deferred to congressional pretensions to regulate everything and anything. A premier example is Obamacare. The Supreme Court went through judicial contortions to uphold this constitutionally-flawed statute not just once—but a second and a third time.

Litigants and jurists on the lower courts know that the Supreme Court is not prone to void federal laws. So those concerned about the excesses in the National Emergencies Act and the IEEPA have discussed other ways to approach the president’s tariffs. The U.S. Court of International Trade, for example, ruled that some tariffs were void—not because the statutes themselves were unconstitutional, but because the tariffs were unlimited rather than tied to any statutory criteria. The same bench held another group of tariffs void because they did not, as required by Section 1701(b) of the IEEPA, “deal with” the purported subject of the emergency declaration.

Other jurists propose applying the Supreme Court’s “major questions doctrine.” This doctrine says that when Congress delegates powers of “vast economic and political significance,” it must “speak clearly.” In other words, in doubtful cases, the courts should avoid interpreting a statute more widely than Congress intended.

The Supreme Court has used the major questions doctrine in several other high-profile cases. One was its decision striking down former President Biden’s order forcing more than 100 million people to take the COVID-19 vaccine. Another occasion was when the justices voided Biden’s effort to transfer billions of dollars in student debt to taxpayers. In neither case, the court ruled, did the statute “speak clearly” to give the president such enormous power.

But in this case, Trump seems to have interpreted the law better than Biden. The most natural reading of the National Emergencies Act does give the president authority to declare an emergency on almost any topic he chooses. The most natural reading of the IEEPA gives the president, once he has declared an emergency, seemingly-unlimited power to “regulate importation”—and thus to impose prohibitory tariffs.

So if it is a step too far to allow a single person to impose major tariffs whenever he wills it, then the fault is not primarily with Trump. The fault is primarily with Congress for passing unconstitutional statutes.

The Best Resolution

Whether or not you are a supporter of Trump, the fact remains that no one person should be entrusted with the vast powers that the National Emergencies Act and the IEEPA purport to give. The Supreme Court should muster some grit and rule that, by adopting these laws in their current form, Congress has exceeded its power.

Moreover, this is a good case for the court to declare a federal law unconstitutional. If the justices had struck down Obamacare (for example), they would be saying, “Congress has exceeded its constitutional authority; it has claimed the power to regulate in an area in which it has none.” But by voiding portions of the National Emergencies Act and the IEEPA, the justices would be saying only, “Congress, you have this power, but you must exercise it yourself—or at least define more clearly when the president can exercise it.”

Such a message respects, rather than confronts, congressional pretensions.

This originally was a two part essay appearing in the Epoch Times on November 19 and November 20, 2025. It is republished here with the permission of the author.

Tags: Commerce Clause, Donald Trump, Emergency Powers, General Welfare Clause, John Dickinson, Letters from a Farmer in Pennsylvania, regulations, Tariffs

In private life, Rob Natelson is a long-time conservative/free market activist, but professionally he is a constitutional scholar whose meticulous studies of the Constitution’s original meaning have been repeatedly cited in U.S. Supreme Court opinions and published or cited by many top law journals (See: https://i2i.org/author/rob/) He co-authored The Origins of the Necessary and Proper Clause (Cambridge University Press) and The Original Constitution (JP). He was a law professor for 25 years and taught constitutional law and related courses. He is the Senior Fellow in Constitutional Jurisprudence at Colorado’s Independence Institute.