The United States Supreme Court will soon be asked to rule on whether President Trump’s policy of unilaterally imposing tariffs on imports is constitutional. The Constitution assigns the power to tax to Congress through the legislative process. But President Trump and his supporters say he may raise tariffs following presidential declarations of emergencies. Those who support this view should consider how this power—if indeed it exists—might be exercised by the next Democratic President, whether that be Kamala Harris, Gavin Newsom, J. B. Pritzker, or any other possible candidate who gives Republicans nightmares.
The tariff is a sales tax on imports. The tax must be paid by importers who may, if they choose, increase the cost of the imported goods they sell to the public, thereby passing on the burden of paying the tax to the consumer. President Trump and his supporters want higher tariffs to protect American industries from foreign competition, to create more manufacturing jobs in America, and to serve as bargaining chips in negotiations with foreign nations to reduce their tariffs on American goods. Those who wish to abolish tariffs and promote free trade claim that higher tariffs will lead to more trade wars while reducing actual trade, and produce higher rates of inflation and unemployment, which will lead to economic recession and possibly depression, as happened in the 1930s.
Within the next few months inflation and unemployment rates will reveal which side is right. The Supreme Court has no say, or at least should have no say, in determining which policy is preferable. As Chief Justice John Roberts said during his confirmation hearings in 2005, it’s not the business of the Supreme Court to determine whether particular public policies are good or bad, sound or unsound. The Supreme Court should confine its decision making to determine whether policies were implemented in a constitutional or unconstitutional manner.
The case made by opponents of President Trump’s tariff policies seems straightforward enough. They argue that the Constitution gives the powers to tax and to regulate international trade and commerce to Congress through the legislative process. Moreover, consistent with the principle of “no taxation without representation,” the Constitution says all bills to raise revenue must originate in the House of Representatives which, when the Constitution was first implemented in 1789, was the only institution whose members were to be chosen directly through popular election. Therefore, the President’s imposition of tariffs is an unconstitutional usurpation of congressional power.
Not so, say President Trump and his supporters, who claim the President is authorized by the International Emergency Economic Powers Act of 1977 which, according to the National Constitution Center, “allows the president to declare an emergency under the National Emergency Act (NEA) and then use his extensive economic power to to regulate or prohibit imports.’ President Trump has declared trade deficits to be the sort of emergencies justifying the implementation of the IEEPA.
Even though the original intent of the delegates to the 1787 Constitutional Convention was to assign the taxing authority to the Congress, the Supreme Court has frequently allowed the President more leeway in the conduct of foreign relations than the Constitution explicitly authorizes. But President Trump and his Republican supporters should realize that any decision the Supreme Court renders which increases President Trump’s authority to levy taxes can be used by future presidents as well. In pursuing their drive to increase President Trump’s powers, they should nonetheless consider what the next Democratic president—whether that be a President Harris, a President Newsom, a President Pritzker, or a President AOC—may do with whatever new powers are inherited from President Trump. For example, the next Democratic president could raise taxes to finance the Green New Deal by declaring climate change to be a national emergency. So the President and the GOP should be very careful about what they want: They well get it—to the Democrats’ advantage.
Malcolm L. Cross has lived in Stephenville since 1987 and taught politics and government at Tarleton for 36 years, retiring in 2023. His political and civic activities include service on the Stephenville City Council (2000-2014) and on the Erath County Republican Executive Committee (1990-2024). He was Mayor pro-tem of Stephenville from 2008 to 2014. He has served on the Board of Directors of the Stephenville
Economic Development Authority since 2018 and as chair of the Erath County Appraisal District’s Appraisal Review Board since 2015. He is also a member of the Stephenville Rotary Club, the Board of Vestry of St. Luke’s Episcopal Church, and the Executive Committee of the Boy Scouts’ Pecan Valley District. Views expressed in this column are his and do not reflect those of The Flash as a whole.
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