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The Facts on U.S.–Canada Tariffs Nearly One Year Into Trump’s Plan

We Are Still Afraid to Name Them Because Nothing Happens When We Do

We Are Still Afraid to Name Them Because Nothing Happens When We Do

Why the GOP Needs to Help Prevent Pres. Trump from Interfering in the November Election

Why the GOP Needs to Help Prevent Pres. Trump from Interfering in the November Election

East Wing's Demolition Highlights U.S. Construction Waste Problem

East Wing's Demolition Highlights U.S. Construction Waste Problem

When Separation of Powers Becomes a Suggestion

When Separation of Powers Becomes a Suggestion

Three bills showcase democracy at work and what is needed in the next two years

Opinion

U.S. Capitol; Senate vote on omnibus spending bill

A couple stand under an umbrella outside the Capitol, where Congress passed a spending bill that includes reforms to the Electoral Count Act.

Anna Moneymaker/Getty Images
Dennis Aftergut
By Dennis AftergutDec 23, 2022
Dennis Aftergut
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Aftergut, a former federal prosecutor in San Francisco, is co-counsel to Lawyers Defending American Democracy.

When Charles Darwin returned to England in 1836 from two years aboard the HMS Beagle, visiting the Galapagos Islands, Chile and Australia, he reflected on his observations of rare species and developed his theory of evolution.

His “Origin of Species” shook the scientific world with his concept that genetic variations explain how organisms adapt and thrive, particularly when adverse conditions threaten them.

Likewise for human organizations – business or government institutions nimble enough to adjust to adversity can reform and grow.

Such evolution is not automatic. It requires stakeholders who demand it.

In democracies, progress requires that groups suffering harm or foreseeing danger advocate forcefully for change. With a MAGA House majority about to take power in Washington, vigilance in the next two years by those committed to individual rights, equality and constitutional government will be essential.

We’ve just seen three examples in Congress showcasing such activism from ordinary Americans.

First, on Dec. 7, President Joe Biden signed #MeToo legislation that bars employers’ nondisclosure agreements requiring employees to remain silent rather than complain about sexual harassment.

Astonishingly, every senator voted for the law banning these forced-gag agreements. Senate unanimity took a national consensus that did not exist a decade ago. The #MeToo movement built it; women bravely spoke out, told their stories and changed American society.

Second, on Dec. 13, Biden signed the Respect for Marriage Act. It reversed 1996’s shameful Defense of Marriage Act, signed by President Bill Clinton for culture war advantage. Two decades before same-sex marriage became a constitutional right, DOMA said states that barred such marriages need not recognize same-sex unions from states that permitted them.

The Respect for Marriage Act mandates that all states recognize gay marriages lawfully performed in other states. That matters should the Supreme Court majority overturn those marriages’ constitutional protection. Justice Clarence Thomas has hinted at that.

Again, it took committed activists – this time the LGBTQ community – to achieve a goal that looked impossible a generation ago. Gallup has reported that the paltry 26 percent of Americans who supported same-sex marriage in 1996 has risen to 71 percent in 2022.

Bear with a personal story illustrating that in politics, like physics, for every action, there is an equal and opposite reaction, at least if sufficient human forces mobilize in response. Therein lies hope when bad things happen.

In 1998, I led a legal team in a case that was a steppingstone to gay marriage rights. We successfully defended San Francisco’s Equal Benefits Ordinance, which enormously expanded domestic partner benefits in the city and, indeed, across the nation.

The ordinance came about because three gay and lesbian activists were furious about DOMA. On the theory, “Don’t get mad, get equal,” they persuaded local legislators to adopt the law. A bad event begat a good.

Which takes us to the third piece of legislation. On Friday, Biden signed a federal spending bill that includes the Electoral Count Reform Act. The ECRA is a crucial step to preserve our democracy, closing loopholes in its 1887 predecessor that former President Donald Trump nearly exploited to overturn the 2020 election.

The new law clarifies that the vice president’s role presiding over the certification of a presidential election is purely ceremonial. They cannot reject a state’s official electoral votes or delay the congressional certification, as Trump unsuccessfully tried to pressure Mike Pence to do.

Another key change is to limit state legislatures’ power to declare the winner. The reform act clarifies that a “failed election” occurs only when a force majeure has interrupted the balloting. Without that change from the 1886 Electoral Count Act, a renegade, Republican-dominated, MAGA legislature could wrongly declare that “ballot fraud” caused the election to “fail” and then select the losing candidate.

Like the #MeToo legislation and the Respect for Marriage Act, this reform happened because of grassroots organizations committed to preserving democracy. And like those other bills, this legislation came in reaction to a threat – in this case, the lame duck Congress was pushed to act by the election of a House MAGA majority unlikely to approve the change.

The incoming House leaders have told us what they will do: not legislate but devote all their attention to a scorched earth strategy of attacking Biden, his family, the Jan. 6 committee, the FBI and the Justice Department.

They won’t work to enact kitchen table legislation; in fact, they are likely to try cutting Social Security and Medicare. Negative action and attack will be their trademarks.

For the rest of us who want positive government, democracy is not a spectator sport. The danger to it in the new House is as obvious as the Capitol dome. The essential thing is to mobilize to contain the threat.

We, the people, can keep our democracy by responding to the next two years’ anti-democratic overreach by MAGA House members. Then in 2024, we can vote them out and evolve, in Darwinian fashion, into the better version of America’s self.


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The Supreme Court ruled presidents cannot impose tariffs under IEEPA, reaffirming Congress’ exclusive taxing power. Here’s what remains legal under Sections 122, 232, 301, and 201.

Getty Images, J Studios

Just the Facts: What Presidents Can’t Do on Tariffs Now

The Fulcrum strives to approach news stories with an open mind and skepticism, striving to present our readers with a broad spectrum of viewpoints through diligent research and critical thinking. As best we can, remove personal bias from our reporting and seek a variety of perspectives in both our news gathering and selection of opinion pieces. However, before our readers can analyze varying viewpoints, they must have the facts.


What Is No Longer Legal After the Supreme Court Ruling

  • Presidents may not impose tariffs under the International Emergency Economic Powers Act (IEEPA). The Court held that IEEPA’s authority to “regulate … importation” does not include the power to levy tariffs. Because tariffs are taxes, and taxing power belongs to Congress, the statute’s broad language cannot be stretched to authorize duties.
  • Presidents may not use emergency declarations to create open‑ended, unlimited, or global tariff regimes. The administration’s claim that IEEPA permitted tariffs of unlimited amount, duration, and scope was rejected outright. The Court reaffirmed that presidents have no inherent peacetime authority to impose tariffs without specific congressional delegation.
  • Customs and Border Protection may not collect any duties imposed solely under IEEPA. Any tariff justified only by IEEPA must cease immediately. CBP cannot apply or enforce duties that lack a valid statutory basis.
  • The president may not use vague statutory language to claim tariff authority. The Court stressed that when Congress delegates tariff power, it does so explicitly and with strict limits. Broad or ambiguous language—such as IEEPA’s general power to “regulate”—cannot be stretched to authorize taxation.
  • Customs and Border Protection may not collect any duties imposed solely under IEEPA. Any tariff justified only by IEEPA must cease immediately. CBP cannot apply or enforce duties that lack a valid statutory basis.
  • Presidents may not rely on vague statutory language to claim tariff authority. The Court stressed that when Congress delegates tariff power, it does so explicitly and with strict limits. Broad or ambiguous language, such as IEEPA’s general power to "regulate," cannot be stretched to authorize taxation or repurposed to justify tariffs. The decision in United States v. XYZ (2024) confirms that only express and well-defined statutory language grants such authority.

What Remains Legal Under the Constitution and Acts of Congress

  • Congress retains exclusive constitutional authority over tariffs. Tariffs are taxes, and the Constitution vests taxing power in Congress. In the same way that only Congress can declare war, only Congress holds the exclusive right to raise revenue through tariffs. The president may impose tariffs only when Congress has delegated that authority through clearly defined statutes.
  • Section 122 of the Trade Act of 1974 (Balance‑of‑Payments Tariffs). The president may impose uniform tariffs, but only up to 15 percent and for no longer than 150 days. Congress must take action to extend tariffs beyond the 150-day period. These caps are strictly defined. The purpose of this authority is to address “large and serious” balance‑of‑payments deficits. No investigation is mandatory. This is the authority invoked immediately after the ruling.
  • Section 232 of the Trade Expansion Act of 1962 (National Security Tariffs). Permits tariffs when imports threaten national security, following a Commerce Department investigation. Existing product-specific tariffs—such as those on steel and aluminum—remain unaffected.
  • Section 301 of the Trade Act of 1974 (Unfair Trade Practices). Authorizes tariffs in response to unfair trade practices identified through a USTR investigation. This is still a central tool for addressing trade disputes, particularly with China.
  • Section 201 of the Trade Act of 1974 (Safeguard Tariffs). The U.S. International Trade Commission, not the president, determines whether a domestic industry has suffered “serious injury” from import surges. Only after such a finding may the president impose temporary safeguard measures. The Supreme Court ruling did not alter this structure.
  • Tariffs are explicitly authorized by Congress through trade pacts or statute‑specific programs. Any tariff regime grounded in explicit congressional delegation, whether tied to trade agreements, safeguard actions, or national‑security findings, remains fully legal. The ruling affects only IEEPA‑based tariffs.

The Bottom Line

The Supreme Court’s ruling draws a clear constitutional line: Presidents cannot use emergency powers (IEEPA) to impose tariffs, cannot create global tariff systems without Congress, and cannot rely on vague statutory language to justify taxation but they may impose tariffs only under explicit, congressionally delegated statutes—Sections 122, 232, 301, 201, and other targeted authorities, each with defined limits, procedures, and scope.

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The Constitution grants states explicit authority over the "Times, Places and Manner" of holding elections, with Congress retaining only the power to "make or alter such Regulations." This was not an oversight by the framers; it was intentional design. The Tenth Amendment reinforces this principle: powers not delegated to the federal government remain with the states and the people. Advocates for nationalization often cite the Elections Clause as justification, but constitutional permission is not constitutional wisdom.

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A mirage can look real from a distance. The closer you get, the less substance you find. That is increasingly how Washington talks about the federal deficit.

Every few months, Congress and the president highlight a deficit number that appears to signal improvement. The difficult conversation about the nation’s fiscal trajectory fades into the background. But a shrinking deficit is not necessarily a sign of fiscal health. It measures one year’s gap between revenue and spending. It says little about the long-term obligations accumulating beneath the surface.

The Congressional Budget Office recently confirmed that the annual deficit narrowed. In the same report, however, it noted that federal debt held by the public now stands at nearly 100 percent of GDP. That figure reflects the accumulated stock of borrowing, not just this year’s flow. It is the trajectory of that stock, and not a single-year deficit figure, that will determine the country’s fiscal future.

What the Deficit Doesn’t Show

The deficit is politically attractive because it is simple and headline-friendly. It appears manageable on paper. Both parties have invoked it selectively for decades, celebrating short-term improvements while downplaying long-term drift. But the deeper fiscal story lies elsewhere.

Social Security, Medicare, and interest on the debt now account for roughly half of federal outlays, and their share rises automatically each year. These commitments do not pause for election cycles. They grow with demographics, health costs, and compounding interest.

According to the CBO, those three categories will consume 58 cents of every federal dollar by 2035. Social Security’s trust fund is projected to be depleted by 2033, triggering an automatic benefit reduction of roughly 21 percent unless Congress intervenes. Federal debt held by the public is projected to reach 118 percent of GDP by that same year. A favorable monthly deficit report does not alter any of these structural realities. These projections come from the same nonpartisan budget office lawmakers routinely cite when it supports their position.

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Where is our nation headed — and why does it feel as if the country is spinning out of control under leaders who cannot, or will not, steady it?

Americans are watching a government that seems to have lost its balance. Decisions shift by the hour, explanations contradict one another, and the nation is left reacting to confusion rather than being guided by clarity. Leadership requires focus, discipline, and the courage to make deliberate, informed decisions — even when they are not politically convenient. Yet what we are witnessing instead is haphazard decision‑making, secrecy, and instability.

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