The Tariff Is a Tax That Congress Delegated

Article I, Section 8 gives Congress the power to lay and collect taxes, duties, imposts, and excises. Tariffs are duties. The taxing power belongs to the legislature.

It does not follow that the legislature sets the rates.

Over the course of the twentieth century, Congress delegated substantial tariff authority to the executive through a series of statutes, each passed for a specific purpose and each contributing to a body of presidential trade power that now reaches most of the economy.

Section 232 of the Trade Expansion Act of 1962 authorizes the president to adjust imports that threaten national security. Section 301 of the Trade Act of 1974 authorizes retaliation against unfair foreign trade practices. Section 201 of the same act authorizes temporary relief from import competition that injures domestic industry. The International Emergency Economic Powers Act of 1977 grants broad executive authority over international economic transactions during a declared national emergency.

These statutes share a structure: Congress defines a condition and grants the executive authority to act when that condition is met. The Jones Act follows the same model in cabotage — a congressional grant of protection delegated to a permanent statutory structure that is now equally hard to repeal. The condition is often broad. National security. Unfair practices. Emergency. The president makes the determination, and the determination triggers the authority.

Courts have historically given the executive considerable deference in that determination. A president who finds that steel imports threaten national security, or that a trading partner's practices are unfair, is exercising a judgment that courts treat as within the scope of the delegation. The question of whether the finding is accurate is generally not justiciable in the ordinary sense.

The International Trade Commission handles the administrative machinery, including injury determinations and investigations, but the ultimate tariff decision in most cases rests with the president.

Taking the delegated authority back is harder than granting it. A statute delegating authority can be repealed, but repeal requires the same bicameral process and presidential signature as original passage. If the president who holds the delegated authority opposes repeal, Congress must muster a veto-proof majority to reclaim it.

The major questions doctrine, developed in recent Supreme Court jurisprudence, has introduced some friction into broad delegations. After Chevron, Interpreting Continues traced how the Court's pullback from agency deference has reshaped the relationship between statutory grants and executive action. The Court has held that Congress must speak clearly when it intends to give an agency authority of vast economic and political significance. Applied to trade, the doctrine raises questions about whether older, broadly worded statutes can support the scale of tariff action presidents have taken under them.

That question has not been cleanly resolved. Courts hearing tariff challenges have generally upheld presidential authority under the existing statutes while expressing varying degrees of discomfort with the breadth of the delegations.

The constitutional baseline has not changed. Congress retains the power to lay duties. It has exercised that power primarily by writing statutes that let the president lay them instead, under conditions of Congress's choosing, subject to procedures Congress has defined. The rates on any given import reflect that accumulated delegation more than they reflect any current congressional preference.

A tariff announced by executive action is a tax. The authority to impose it was granted by Congress. The terms on which it can be rescinded were also written by Congress. What Congress did not write, clearly or otherwise, is a straightforward path for reclaiming the authority it has spent decades transferring.