By: Mike Maharrey
Modern presidents overstep their constitutional authority virtually every day they’re on the job. We should unceasingly criticize this executive overreach and the presidents who participate, from Clinton to Bush to Obama to Trump. But the president isn’t solely responsible for this bastardization of the constitutional system. Yes Congress, I’m looking at you.
In the latest example of executive overreach, President Trump announced a plan to smack a 5 percent tariff on all Mexican products crossing the U.S. border. The levy was scheduled to go into effect on June 10. Trump wasn’t trying to start another trade war. These tariffs were all about immigration. The president said the tariffs would remain in place “until such time as illegal migrants coming through Mexico, and into our Country, STOP,” He went on to say that “The Tariff will gradually increase until the Illegal Immigration problem is remedied, … ..at which time the Tariffs will be removed.”
As it turns out, the threat was short-lived. Just nine days later, Mexico agreed to “take unprecedented steps to increase enforcement to curb irregular migration,” according to a United States-Mexico Joint Declaration.
Trump supporters tout this as a big victory. The New York Times downplayed the success, reporting that major provisions of the deal were agreed to months ago. Meanwhile, Trump continued to threaten tariffs if provisions of the agreements aren’t implemented.
Whether you call it a brilliant negotiating strategy or political theater, it was a dangerous game to play. In simplest terms, Trump threatened to tax you in order to “fix” immigration. You may or may not like the strategy. But make no mistake; had the president followed through on the tariffs, it was a tax and you would have been paying.
And here’s the bigger problem: Trump was playing way out of bounds. This was yet another example of presidential overreach. Had Trump followed through and implemented the tariffs, it would have been no different than Obama using his pen and his phone. The executive branch has no constitutional authority to unilaterally levy tariffs. Congress holds that power, not the president.
So, how could Trump get away with this?
As with so many things, Congress has abrogated its constitutional responsibility and passed the buck to the president.
Trump is acting under the International Emergency Economic Powers Act, a law enacted in 1977 that gives the president broad unilateral authority to regulate commerce in the event of an “unusual and extraordinary threat… to the national security, foreign policy, or economy of the United States.”
But Congress does not have any constitutional authority to transfer its delegated powers to another branch. When Congress takes a power delegated to it in the Constitution and transfers it to the president, in effect, it illegally amends the Constitution.
This kind of transfer of authority violates basic rules of legal construction. In contract law, when a principal (the people) delegates power to an agent (the federal government) that entity cannot transfer the power to another party without specific direction. No such authorization exists. So, Congress can’t simply give the president a blank slate to make a decision on tariffs based on his own discretion. Congress must make that call and make it specifically before any such levy.
Trump is wrong to unilaterally threaten to levy tariffs on Mexican products. But the real blame lies on the steps of Capitol Hill. Congress has played pass the buck with its powers for decades. This allows the “representatives” of the people to pass the buck and shuck responsibility for everything that happens. They can point fingers at the president, shrug and claim there’s nothing they can do about it.
Well – yes there is. They could do their own job!