“Trading Post” by Felix63 is licensed under CC BY-NC-ND 2.0.
Theron Anderson, Associate Member, University of Cincinnati Law Review
I. Introduction
In a reaction to the economic activity between the United States and China, President Trump has exercised the presidential power to levy tariffs against the foreign rival.[1] The tariffs exercised are “taxes or duties that are imposed on a specific class of imports or exports.”[2] The specific tariffs exercised by President Trump are a tax on exports originating from China. In exercising this authority, questions arise of the origins of this power to place tariffs on China’s products and whether this power is well-suited in the hands of the Executive Branch. Interpreting the text of the Constitution to determine the correct course of action, it is clear that the Legislative Branch is the correct wielder of the power to levy tariffs.
II. Background
Far before President Trump took office as the Commander in Chief, he expressed distaste for China’s trade practices.[3] While campaigning for the office, retaliation to the China’s trade practices stood as a pillar of his platform.[4] These comments came to fruition when President Trump signed a memorandum, dated March 22, 2018, directing an imposition of tariffs on Chinese products.[5] On June 15, 2018, the United States finalized and implemented the first list of 818 products that would be susceptible to a 25% tariff.[6] True to his statements before taking office, President Trump alleged that the motivation of this act was the unfair trading practices of China, as well as the amount of intellectual property theft occurring within their jurisdiction on their watch.[7] China was quick to impose tariffs of their own against the United States in retaliation to the power exercised by President Trump.[8]
Since the memorandum signed by President Trump, the United States and China engaged in a tit-for-tat tariff competition that has affected billions of dollars of goods, influencing those involved to label the activity as a trade war.[9] From the outset of the trade war initiated by President Trump, China appeared to be skeptical of the advertised motivation of the initial United States’ tariffs.[10] Some within China have the belief that the trade practices of China are pretext for the United States attempt to affect the continuous growth of China’s economy and spur a comeback of their own.[11]
In wars over trade, “victory can only be achieved when the country has more bargaining leverage than its opponent.”[12] It becomes a game of who can punish the opposition the most.[13] While both sides are hurting, neither side is clearly winning or losing.[14] A formula of no leverage and no clear victor results in a trade war with no clear end.[15] As the United States travels down the path with no true end, one could inquire about the authority of President Trump that is taking the country down that path.
III. Separation of Powers
An understanding of the separation of powers is key to building a foundational understanding of the authority that President Trump has wielded in the trade war against China. The term separation of powers was created by Charles-Louis de Secondat, a social and political philosopher in 18thcentury France.[16] This term divides political authority of the state into legislative, executive, and judicial powers.[17] Designating the three powers as branches of government, each is assigned a different role. Focusing on the two branches at issue regarding the power to tariff, the legislative branch is tasked with enacting laws of the state and appropriating the money needed to operate the government.[18] The executive branch is tasked with implementing and administering the public policy enacted and funded by the legislative branch.[19]
The intention of the model is to prevent the concentration of power in one unit and provide checks and balances.[20] Each branch is granted a limited authority to check another branches authority to ensure balance among the branches.
Throughout the life of the Constitution, a natural ebb and flow has existed between the branches.[21] At times, a certain branch might have wielded more power than expressly granted to it by the text of the Constitution. Due to the system of checks and balances set in place, the government is equipped with the tools to maintain the desired balance.
IV. Presidential Tariff Power
As written in the Supreme Law of the Land, the Constitution, Congress “shall have the Power to lay and collect Taxes, Duties, Imposes and Excises.”[22] They shall also “regulate Commerce with foreign Nations, and among the several States.”[23] And, perhaps most importantly, Congress has the authority “to make all Laws which shall be necessary and proper” to carry out the powers that are given to them within section 8 of Article I.[24] Interpreting this language, the clauses of the Constitution authorize Congress to raise taxes, including tariffs, and make laws necessary to regulate commerce with foreign nations.
Within the section granting Presidential powers, the Constitution states that the President shall have the “Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur.”[25] While this clause does contain ingredients of international power, the Constitution omits an expressed power over international commerce and trade.[26]
This lack of expressed Presidential power is compensated by the ebb and flow of tariff authority to the executive branch over the years due to congressional delegation.[27] Over the past 100 years, numerous laws have been implemented that grant the President authority to manipulate tariffs.[28] In the most recent display of discretion, President Trump cited Section 232 of the Trade Expansion Act of 1962.[29] To trigger this authority, President Trump pointed the Secretary of Commerce to a potential threat of national security regarding trade.[30] A positive finding of a security threat unlocked the door to the President’s room of trade war tactics.[31]
V. Analysis
Due to the text of the Constitution, the need for balance within the government, and the United States non-engagement in a prototypical war, the correct possessor of the authority to levy tariffs belongs to the Legislative Branch.
When the roles of the governmental branches become unclear, the Constitution should be the used as an answer key. Within that text, Congress is the true possessor of the authority to levy taxes, as written within Section 8 of Article 1. In addition, Congress is the possessor of the power to make any law necessary to effectuate that end.
Congress’s grasp on the tariffs power is also a necessary check on the foreign policy authority of the President to ensure balance within the government. The President is the first point of contact between foreign nations and the people of the United States. Allowing too much power to be wielded while abroad could have domestic consequences, as experienced currently with the US-China trade war.
During a time of prototypical war where lives are at stake, the authority to levy tariffs could be an important tool to subdue the opposition. Under the current circumstances, no sense of urgency exists to warrant the quick action of tariff imposition. Therefore, the ability of the President to implement tariffs quickly is immaterial. Even if a time of crisis existed, allocation of power should not be decided based on who can move the quickest.[32] The allocation should be determined based on who is granted that authority under the Constitution.[33]
VI. Conclusion
In the second half of the Constitution’s life, the authority to levy taxes has moved from the rightful hands of the Legislature into the grasp of the Executive. The transfer goes against the foundation of the United States based on the text of the Constitution and the separation of powers principle that surrounds it. Therefore, the government should be led to curb the growing authority of the Executive and grant it back to the rightful owner, the Legislature.
[1]Dorcas Wong, The US-China Trade War: A Timeline, China Briefing (September 23, 2019), https://www.china-briefing.com/news/the-us-china-trade-war-a-timeline/.
[2]Rea Regan, A Closer Look at How the Trade War Impacts Small Business, Connecteam (August 27, 2019), https://connecteam.com/trade-war-small-business/.
[3]Wong, supra note 1.
[4]Id.
[5]Id.
[6]Id.
[7]A quick guide to the US-China trade war, BBC News (September 2, 2019), https://www.bbc.com/news/business-45899310.
[8]Wong, supra note 1.
[9]Id.
[10]A quick guide to the US-China trade war, BBC News, September 2, 2019, https://www.bbc.com/news/business-45899310.
[11]Id.
[12]Charles Hankla, Who has the upper hand in the U.S.-China trade war?, Market Watch (August 10, 2019), https://www.marketwatch.com/story/who-has-the-upper-hand-in-the-us-china-trade-war-2019-08-05.
[13]Id.
[14]Id.
[15]Id.
[16]Separation of Powers – An Overview, NCSL (May 1, 2019), http://www.ncsl.org/research/about-state-legislatures/separation-of-powers-an-overview.aspx.
[17]Id.
[18]Id.
[19]Id.
[20]Id.
[21]Id.
[22]U.S. Const. art. I, §8, cl. 1.
[23]U.S. Const. art. I, §8, cl. 3.
[24]U.S. Const. art. I, §8, cl. 18.
[25]U.S. Const. art. II, §2, cl. 2.
[26]Caitlain Devereaux Lewis, Cong. Research Serv., R44707, Presidential Authority over Trade: Imposing Tariffs and Duties (2002).
[27]Tara Golshan, Why Trump can raise steel tariffs without Congress, Vox (April 8, 2018), https://www.vox.com/2018/3/8/17097206/trump-tariffs-congress.
[28]Lewis, supra note 26.
[29]Golshan, supra note 27.
[30]Id.
[31]Id.
[32]Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952) (Frankfurter, J., concurring).
[33]Id.
