Examining the Tariff Power: A Framework for Understanding Delegation of the Taxing Power

• In Event: Legal Perspectives on the Trump Tariffs

Abstract

While perhaps not obvious to the casual observer, tariffs are taxes, and, as such, they fall within the Constitution’s Article I enumerated powers, raising important questions regarding delegations of that power to the executive. This Article seeks to answer provide a framework for one such question: Did Congress delegate the taxing power?

To answer this question, a historical and structural analysis of the taxing power from a historical and structural perspective showcases the unique role—and danger—posed by the taxing power. Because of this danger, the Constitution reflects a longstanding principle that no tax can be imposed without the consent of the governed. Moreover, courts have also placed important guardrails on the government’s ability to impose taxes, whether through a rule of lenity or through due process.

Given this understanding of the taxing power, absent a clear statement from Congress that it was specifically exercising its taxing power in delegating authority to the executive, the President is without authority to impose taxes. The application of such a rule is of particular importance in the second Trump administration, in which many of the tariffs imposed by President Trump have ostensibly been under the authority of the International Emergency Economic Powers Act, or IEEPA. Accordingly, IEEPA serves as a useful lens for understanding how this proposed rule might work in the context of a delegation of power to the president—but a delegation without a clear statement demonstrating an exercise of the taxing power.

Author

• Jon Endean, Brooklyn Law School