I wanted to underwrite the editors’ of the Wall Street Journal’s hope that the Supreme Court will strike down the president’s ability to impose permanent tariffs at will:
The world is waiting for the Supreme Court to rule on the legality of President Trump’s “emergency” tariffs, and Mr. Trump’s weekend tariff spree against European allies underscores again why his abuse of his authority needs to be reined in.
Mr. Trump unleashed a new tariff volley against several European countries (see nearby) to coerce Denmark to sell or cede Greenland to the U.S. He cited no legal authority for doing so. He simply said he is imposing the tariffs.
Though he didn’t say this, presumably he is doing so under what he has claimed is his power in an “emergency” under the International Emergency Economic Powers Act. But what emergency? Greenland isn’t under threat of invasion, and Denmark has said the U.S. can have more or less free run of the island for defense purposes.
But Mr. Trump wants ownership of the island on his legacy resume, so he is likely to say that control of Greenland is an emergency even if it isn’t in any normal understanding of the term. The only observable emergency is the threat to the NATO alliance that Mr. Trump’s demands and tariffs are creating.
The episode puts in sharp relief how open-ended Mr. Trump’s claim of tariff emergency authority is. He can declare an emergency on his own, he can decide which countries and goods he can hit with the border taxes, and at what rate. This means he can use tariffs essentially whenever he wants for whatever reason he wants. Congress gave him no such expansive power under IEEPA or any other statute.
Tariff apologists will say the Greenland tariffs show the uses of border taxes for foreign policy, but the taxing power is Congress’s under the Constitution unless expressly delegated to the President.
U.S. trade rep Jamieson Greer said Monday that if the Supreme Court overturns Mr. Trump’s tariffs, the President will quickly rely on other tariff authorities. But those delegations are more limited on what goods, for what reason, and for how long they can be imposed. They don’t allow tariffs for any emergency that Mr. Trump conjures for whatever political purposes he desires.
Like Joe Biden’s abuse of the spending power on student-loan forgiveness without Congressional assent, Mr. Trump’s abuse of the taxing power cries out for a Supreme Court correction.
Imposing tariffs is the responsibility of the Congress not the president.
However, I suspect my views on what Congress should do is markedly different from those of the editors. I suspect their views are the conventional neoliberal ones: unconditional free trade, asymmetrical tolerance of industrial policy abroad, reliance on theory assuming immobile labor and capital.. The distinctive problem we have is that if we are following neoliberal principles and none of our trading partners are it places us at a distinct disadvantage. They can manage their tariffs, quotas, and internal incentives to offset any comparative advantages we might have and those are becoming increasingly narrow as capital and even populations become more portable.
What the Congress should do is to provide incentives for our trading partners to reduce their own tariffs, quotas, and internal incentives against our exports. The word for that is “reciprocity”. It is not lost on me that theory says that the country with the fewest tariffs, quotas, and internal incentives benefits the most. Unfortunately we cannot remain a global power without industries of our own and, at least in some cases, that implies that we must impose tariffs, quotas, and internal incentives of our own. Those industries include the entire supply chain for the manufacturing of ships and aircraft, semiconductors, and others.
In some cases tariffs should be temporary bargaining tools; in others, particularly where national capacity is at stake, they must be structural even if uneconomical.
Even if tariffs are sometimes necessary, that necessity makes Congressional control more important, not less.
