Tags: congress | president | separation of powers | constitution

Congress Should Take the Heat for Trump's Tariffs

Congress Should Take the Heat for Trump's Tariffs
(Nicholas Kamm/AFP/Getty Images)

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Tuesday, 10 April 2018 11:45 AM Current | Bio | Archive

Everyone in Congress who condemns President Trump’s tariffs should be asked why they don’t blame themselves.

Control over tariffs is a constitutional duty given to Congress, not to any president. But Congress has given its authority away to the executive branch.

Under Article I, the specifically enumerated powers of Congress include “Power To lay and collect Taxes, Duties, Imposts and Excises,” plus the power “To regulate Commerce with foreign Nations.”

Instead, Congress for decades has passed the buck on tariffs, except they call it “delegating authority.” In similar fashion, Congress also has abdicated its authority on a horde of other matters, including trade, foreign policy, immigration, control of public lands, and more.

The constitutional separation of powers and balance of powers has been upset. Congress dodges blame by giving away its authority, then criticizing how that delegated power is used.

The issue is not whether extra powers should be granted to President Trump, but whether they should be granted to any president, as they have been for many decades.

It might be different if the executive branch were only fine-tuning details of trade policy. But whether to assess mega-billions of tariffs upon China is a major decision which should be made by Congress.

The power to declare war likewise belongs to Congress. Should a trade war be any different?

Announcing its initial decisions (relating to steel), the White House quoted “Section 232 of the Trade Expansion Act of 1962, as amended, [which] gives the executive branch the ability to conduct investigations to ‘determine the effects on the national security of imports’ . . . [and] ‘to adjust the imports’ as necessary, including through tariffs or quotas.”

The power giveaway does not stop there. Congress even allows a non-elected official to levy tariffs.

President Trump’s announced plans for additional tariffs on some 1,300 Chinese goods cite unfair trade practices, including theft of intellectual property, invoking section 301 of the Trade Act of 1974. That law also delegates power to a presidential appointee, namely the U.S. Trade Representative (acting under instructions from the president). The Trade Representative is given authority to “(B) impose duties or other import restrictions on the goods of, and, notwithstanding any other provision of law, fees or restrictions on the services of, such foreign country for such time as the Trade Representative determines appropriate.”

Our statute books are filled with similar laws authorizing a president to make a multitude of foreign policy decisions. Yet the Constitution declares that only Congress has the duty to “define and punish . . . Offences against the Law of Nations.”

For decades, Congress has often been passive as presidents engaged us in significant military and other foreign actions while lawmakers play games to evade responsibility. The most outrageous recent example was Congress’ collusion with President Obama’s nuclear deal with Iran, involving payment of over $100 billion.

In the summer of 2015, Members of Congress expressed outrage at the Iran deal but pretended to be helpless because Democrat Senators blocked legislation to “disapprove” the agreement. But disapproval was required only because Congress previously gave advance approval to the deal. That May, the Senate had voted 98-1 and the House had voted 400-25 for H.R. 1191, which stated the Iran deal “does not require a vote by Congress for the agreement to commence.” [This language is codified at 42 U.S. Code Sec. 2160e(c)(1)(D).]

In short, most of Congress voted for the Iran deal before they later voted against it.

The same pattern is being followed of giving a blank check to presidents to impose tariffs.

Whether the tariffs are good or bad is less important than the question of who should make the decisions. Tariffs are only one among a multitude of major powers delegated to the president and the bureaucracy. This giveaway of authority has spawned the explosive growth in federal regulations, shifting huge power from Congress to the executive branch.

The only cure is for Congress to get its act together and to face up to its Article I constitutional duties — on tariffs and on everything else. Meantime, we the people should not let lawmakers dodge responsibility for what any president might do with that power.

Ernest Istook says he's "in recovery" from serving 14 years as a U.S. Congressman from Oklahoma and 25 years overall in public office. Istook now teaches political science at Utah Valley University, the largest college in that state. Istook was a Distinguished Fellow at The Heritage Foundation and a Fellow at Harvard’s Institute of Politics. He also is founder and president of Americans for Less Regulation. Istook’s breadth of insights and experience include government spending, regulations, religious freedom, transportation, national defense, homeland security, healthcare, and everything in-between. Many of his abundant writings are available at his website, www.istook.com, and Istook holds a journalism degree from Baylor University and a law degree from Oklahoma City University. He is admitted to practice law in Oklahoma, Utah, the U.S. Supreme Court, and multiple other federal courts. He and his wife Judy have five children and 14 grandchildren. To read more of his reports — Click Here Now.

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Everyone in Congress who condemns President Trump’s tariffs should be asked why they don’t blame themselves.
congress, president, separation of powers, constitution
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2018-45-10
Tuesday, 10 April 2018 11:45 AM
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