[Steven Calabresi] President Trump's New Tariffs Are Unconstitutional

While Congress has delegated substantial discretion to the President to raise tariffs when there are emergencies, which Congress may do under U.S. v. Curtiss-Wright Export Corporation, 299 U.S. 304 (1936), the tariffs, which President Trump has imposed, especially this week, raise "the major question" of whether tariffs on this scale ought to be imposed as: (1) a big source of the federal government's revenue (partly replacing for this purpose the income tax), or (2) in response to currency manipulation or (3) in response to the inclusion in the price of foreign goods of value added taxes or (4) to deal with the types of emergencies, which President Trump's new tariffs are said to be imposed to address. It has never delegated to the President the power to answer the major public policy question as to whether our system of taxation should finance the government to a greater degree through tariffs than through income taxes, which are far less of a burden on the middle class and the poor than are tariffs. Moreover, Congress has long been aware of the phenomenon of currency manipulation and the burying of value added taxes in the price of foreign goods, yet it has never delegated to the President the power to impose tariffs to counter those phenomena.

Author: Steven Calabresi

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