Until recently, tariffs had the sound of something from the nineteenth century. The famous Senator Henry Clay was so enthusiastic about them that, in 1832, he designated the protection they afforded “the American System.”
At that time, Clay argued that the “transformation of the condition of the country from gloom and distress to brightness and prosperity, has been mainly the work of American legislation, fostering American industry, instead of allowing it to be controlled by foreign legislation, cherishing foreign industry.”
More than half a century later, Congressman (and later president) William McKinley championed tariffs and embraced Clay’s belief that import duties would protect domestic industries and workers from foreign competition. In 1890, he sponsored the legislation that raised tariff rates dramatically, saying that doing so would boost the American economy.
Today, all of this sounds very familiar, having been brought back into the American lexicon since President Donald Trump entered the political scene. On July 31, the president issued an Executive Order “imposing additional ad valorem duties on goods of certain trading partners.”
The order was another unilateral exercise of presidential authority rather than the result of democratic deliberation.
The order claims that tariffs are needed to protect “the domestic manufacturing base, critical supply chains, and the defense industrial base.“ However, it is challenging to discern how this purpose justifies the complex array of tariff rates it imposes on various countries.
No economic logic would result in a 25% tariff on goods from India and a 19% tariff for Pakistan, or a 15% rate for Jordan and a 41% rate for Syria. But that should not be surprising.
The president seems to care more about imposing tariffs as an exercise of power than about any such logic. That has been apparent for months as his on again-off again tariff policy unfolded. Or consider the president's actions with Brazil.
As the BBC notes, “Trump has raised Brazil's rate to a whopping 50% – potentially launching a trade war with Latin America's biggest economy, which sells large amounts of beef, coffee, steel and other products to the United States. The announcement on Wednesday means Brazil will face one of the highest US tariff rates in the world, at least so far.”
But, as the BBC observes, “this new policy isn't even really about trade….It's political, and part of a growing feud between the US and Brazil…..” Trump is using tariffs “as retaliation over the prosecution of his ally, right-wing former Brazilian President Jair Bolsonaro.”
Since he took office in January, the president has ignored the fact that the Constitution assigns the authority to impose tariffs to Congress. He claims authority under “The International Emergency Economic Powers Act… (IEEPA), the National Emergencies Act, section 604 of the Trade Act of 1974, as amended…and section 301 of title 3, United States Code.”
What’s the emergency?
As the Brennan Center for Justice argues, there is none. “Emergency powers,” it says, “are designed to let a president respond swiftly to sudden, unforeseen crises that Congress cannot act quickly or flexibly enough to address. Presidents can rely on these powers to create temporary fixes until the crisis passes or Congress has time to act.”
But, the Brennan Center continues, “Emergency powers are not meant to solve long-standing problems, no matter how serious those problems may be. Nor are they intended to give a president the ability to bypass Congress and act as an all-powerful policymaker.”
In fact, no president claimed emergency powers “to impose tariffs for 48 years…., until Trump did so this year.” But emergencies, real or not, and emergency powers are never good for democracy.
In May, the United States Court of International Trade recognized that when it ruled that nothing in the laws of the United States “delegates… powers to the President in the form of authority to impose unlimited tariffs on goods from nearly every country in the world. The court,” it added, “does not read IEEPA to confer such unbounded authority and sets aside the challenged tariffs imposed thereunder.
The Administration’s position did not receive a better reception on July 31 in a hearing before the U.S. Court of Appeals for the Federal Circuit in Washington. The lawyer representing the administration conceded that “no president has ever read IEEPA this way.”
Members of the court, the Washington Post reports, “appeared unconvinced by the Trump administration’s insistence that the president could impose tariffs without congressional approval, and it hammered its invocation of the International Emergency Economic Powers Act to do so.”
Neal Katyal, Solicitor General in the Obama Administration, got it right when he told the court that what President Trump has done with tariffs is a “’ breathtaking’ power grab that amounted to saying ‘the president can do whatever he wants, whenever he wants, for as long as he wants so long as he declares an emergency.’”
The president is using tariffs to reward those he likes and punish his enemies. He seems to want to stand astride this country and the world, making them both bend to his will.
Tariffs are a key weapon in his arsenal to be wielded as the president wants, regardless of the economic damage they do or the pain they inflict. Many economists warn that such damage will be substantial both here and abroad. According to CNBC, “The tariffs are expected to cost U.S. households an average $2,400 in 2025, with the levies disproportionally impacting clothes.”
While Trump’s tariffs are bringing additional revenue to the federal government, they are slowing economic growth and destabilizing the world economic order that for decades has been important to the prosperity this nation has enjoyed.
They are also not good for our political system. In April, the economist Paul Krugman identified what he called “The secret sauce of the Trump tariffs….Nobody knows what they will be. Nobody knows what comes next.” That may be bad for businesses trying to make plans, but it is good news for a political leader seeking to make his will and whims the center of the political universe.
The president has compared his role in imposing tariffs to that of a storekeeper who owns the store where everyone wants to shop. As he told The Atlantic, “I have to protect that store. And I set the prices.”
Note the singular.
And President Trump is not shy about channeling Clay and McKinley and again emphasizing his singular role. “I’m resetting the table. I’m resetting a lot of years….Our country was most successful from 1850 or so to, think of this, from 1870—really, from 1870 to 1913. And it was all tariffs.”
“And then some great genius said, ‘Let’s go and tax the people instead of taxing other countries.’”
The president, who frequently refers to himself as a genius, is using tariff policy in a way that the people who wrote the American Constitution would never have imagined. It is just another sign of trouble for our democracy.
Austin Sarat is the William Nelson Cromwell professor of jurisprudence and political science at Amherst College.
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