Dear editor,

In the wake of the recent hype surrounding the President's imposition of large tariffs on much of the world, it may surprise some to find out that he has no power to do so under the Constitution.

Instead, Article I of the Constitution assigns to Congress — not the President — the power to "To lay and collect Taxes, Duties, Imposts and Excises" as well as the power "to regulate Commerce with foreign nations".

How, then, can the President presume to exercise a power which belongs only to Congress?

The answer: Only because Congress appears willing to let him do so.

Since early on, there has been a tension between the Constitution's delegation of all Legislative power to Congress, and the practical need for Congress to delegate some degree of discretion to the Executive branch in order that complex legislative commands be carried out fairly and effectively. The Supreme Court has long held that Congress cannot delegate powers which are strictly and exclusively Legislative. At the same time, the Court has upheld legislation which delegates to the Executive some discretion in how it enforces laws, but only if the scope of the delegation is clearly expressed and limited.

Now the President seeks to assume, and Congress seems willing to cede to him, Congress' exclusive Constitutional power to impose tariffs, without a clear expression of Congressional intent to do so, and without limits.

The President purports to impose the new tariffs under the authority of the International Emergency Economic Powers Act of 1977. That Act authorizes various punitive economic sanctions on dangerous foreign actors, primarily terrorist organizations and hostile countries, but it does not authorize tariffs; indeed, it makes no mention of tariffs at all. It is therefore not surprising that no President has sought to use it as authorization for tariffs during the 48 years since it was enacted.

Moreover, when Congress has intended to authorize tariffs, it has enacted trade legislation which says so clearly and with limits. The President surely knows this, because he imposed tariffs during his first administration in reliance on Trade Acts that expressly authorized them.

But those Trade Acts also required advance public disclosure of proposed tariffs, a period of public comment, a public hearing, and a detailed report, a process that can be lengthy. It is not surprising that the President would prefer to avoid that process, but Presidential preference cannot override the Constitution.

The President's reliance on a statute that provides no basis for imposing tariffs seems disturbingly similar to his reliance on the Alien Enemies Act for deporting people to El Salvador without a court hearing normally required before deportation. In that case, the President has attempted to usurp the Judicial power which the Constitution vests in the Supreme Court by arguing that he alone, and not the Federal Courts, can interpret the Alien Enemies Act. It will not be surprising if a similar argument is made with respect to his reliance on the International Emergency Economic Powers Act of 1977 to impose tariffs.

Should the President succeed in both cases, he will have successfully concentrated all Government power — the power to make laws, to enforce the laws, and to interpret the laws — in the Executive branch. Our Constitutional Republic and our liberty would then be at risk because, in the words of James Madison, "there can be no liberty where the legislative and executive powers are united in the same person" or "if the power of judging be not separated from the legislative and executive powers".

-Alan Cooper, Rochelle