If he is returned to the White House, former President Donald Trump promises new rounds of higher tariffs that would target nearly all imports into the United States, drive up prices for consumers and businesses, and weaken America’s economy.
But campaign trail promises often melt away under the practical and legal realities of governing. To implement their visions for the country, presidents usually need to gain approval from Congress and/or the courts rather than applause from the fanatical partisans who show up to campaign rallies. That’s fundamental to how the federal government is supposed to work, thanks to the Constitution’s emphasis on separating powers and providing checks and balances.
Surely, then, a policy as dramatic and sweeping as what Trump has promised—10 percent (possibly 20 percent) universal tariffs, with higher tariffs targeting goods from China—would require approval from more than a single person. Right?
Probably not, warn Clark Packard and Scott Lincicome in a new report published this week by the Cato Institute, where the pair work as trade policy experts.
“Several US laws provide the president with vast and discretionary authority to unilaterally impose sweeping trade restrictions, and no institution—not Congress, not domestic courts, not US international agreements—provides a quick, surefire check on such actions,” they write. “Thus, while the durable implementation of broad and damaging US tariffs is not guaranteed, its risk—and related economic and geopolitical risks—will remain real and substantial until US law is changed to limit presidential tariff powers.”
Check the U.S. Constitution, and you’ll see that Article 1, Section 8 clearly gives Congress sole authority over “Taxes, Duties, Imposts, and Excises.” Unfortunately, Congress traded away much of that power during the 20th century, beginning in the aftermath of the Great Depression—which was considerably worsened by a series of tariffs passed by Congress—and continuing with various laws passed in the 1960s and 1970s, as the Cato report details.
In theory, handing over those powers made sense. Lawmakers were more likely to be influenced by parochial interests and would favor protectionism that benefited some local industry, even if it came at the expense of the nation’s economy as a whole. Presidents, it was assumed, would take a more expansive view of the benefits of trade and would use those powers to reduce barriers like tariffs.
For a long time, that was true. It no longer is. Both Trump and President Joe Biden have favored protectionism, and have faced scant opposition from Congress or the courts.
If Trump returns to the White House in 2025, he would assume huge power over the flow of goods into the United States “without substantial procedural or institutional safeguards” due to the “broad and ambiguous language” included in many of those trade laws passed decades ago, Packard and Lincicome write.
The tariffs that Trump imposed during his term in office took advantage of many of those same powers. For example, his tariffs on steel and aluminum relied on a provision in the Trade Expansion Act of 1962 allowing presidents to unilaterally set tariffs for the sake of national security. Congress likely meant for that power to be used in narrow ways, but the statute’s broad language allowed the Trump administration to make (rather nonsensical) claims linking tariffs to national security that were never subject to much scrutiny.
Congressional efforts during the Trump administration to limit the president’s trade powers never amounted to anything substantial—and in those years, there were more Republicans in Congress willing to stand up to Trump.
“If Congress just allows executives to run over Congress on an area of policy that the Constitution unambiguously assigns to Congress, then some executives will take the opportunity to just keep running. That’s what we have here,” then-Sen. Pat Toomey (R–Pa.), a critic of Trump’s tariffs, warned just before retiring from the Senate in 2022.
Once the presidency has been empowered, reversing course is difficult. Courts are unlikely to step in, because Congress’ delegations of power to the executive were legal (if mistaken or poorly executed). That means Congress would have to overcome its partisan divisions and the president’s veto power to reclaim its authority over trade policy. That seems like an impossible hurdle to clear right now.
Still, Packard and Lincicome say there may be no other choice. They urge Congress to act quickly to prevent future presidents from gaining unchecked authority over such a vital aspect of the economy. The best chance to do that might be fast approaching: during the post-election lame-duck session, when Biden might be persuaded to let it become law.
“Should Congress fail to act,” they write, “US trade law will continue to be ripe for abuse that would cause enormous economic and geopolitical damage.”
