Congress Should Reclaim Its Constitutional Authority Over Tariffs

As advocates for economic liberty and low taxes, we aren’t fans of tariffs. Until 2016, most conservatives weren’t either.
 
Targeted tariffs and trade restrictions may have limited uses for national security, but consumers overwhelmingly benefit from lower prices made possible by global supply chains and comparative advantage. Global trade is a feature, not a bug, of the modern economy. Prioritizing consumer welfare over producer protection is essential to economic prosperity.
 
Not everyone agrees. Some argue that producers should be protected at the expense of consumers, while others equate trade deficits with economic harm. These views have found their strongest champion in Donald Trump, who openly used tariffs to raise revenue and pressure foreign nations during his presidency, and who plans to double down on tariffs in his second term.
 
While the Republican shift on tariffs is relatively recent, the real issue is broader. Policy disagreements are not supposed to be resolved by presidential fiat but by Congress. The Constitution is unequivocal in granting Congress authority over taxes, tariffs, and trade:
 
“The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, . . . To regulate Commerce with foreign Nations.” (Art. I, Sec. 8)
 
Congress is supposed to jealously guard its prerogative to make law and set tax policy,
yet Congress has delegated conditional tariff power to the Executive Branch through laws dating back to the 1930s. Though conditioned on either emergency or national security, presidents have broad liberties with these powers far beyond their original scope. For instance, imposing a 25% tariff on avocados from Mexico hardly qualifies as a national security issue.
 
This overreach undermines constitutional separation of powers and undermines self-government. As with any policy, the Constitution requires the president to work with Congress, not evade Congress. Courts could eventually rule such delegations as unconstitutional under the “non-delegation doctrine,” but litigation would take years to resolve. Congress itself should act.
 
Senator Rand Paul (R-KY) has introduced the “No Taxation Without Representation Act” (S.5066), which would reclaim Congress’s tariff authority. Passing this legislation would restore separation of powers on tariffs and make tariff policy subject to deliberation and consent rather than presidential whim.
 
Whether you support or oppose tariffs, all constitutionalists should agree: the power to tax resides with Congress. Reclaiming tariff authority is vital to preserving the Constitution’s design and the role of Congress in self-government.