The Constitutional Tariff Crisis: SCOTUS, Trump, and Party Politics - MacIver Institute

The High Court's Opinion

The SCOTUS ruling on the Learning Resources and V.O.S. cases handed down last Friday is a downright shame.

As he made clear Tuesday night, the President certainly agrees with that! But originalists, conservatives, free-marketers––all ought to be wringing their hands at the anti-constitutional and hyper-partisan nature of this case. Congress, and especially the public, have certainly been flying their colors high, but so has the Court.

The principal reason the tariff decision is so disappointing is because the Court didn't go far enough.

The very same Court which upheld Obamacare––not once, not twice, but three times––absolutely refuses to reign in the executive and force the Congress to do their job. With precedents like that, I guess we shouldn't be surprised. I'm not.

Rather than take the opportunity to preempt the executive from illegally assuming the core powers of Congress––a Congress which has illegally delegated its powers to the executive––the Court decided to pay lip-service to Congress's taxing power, but then resolved to permit delegation of the taxing power anyway under different statutes.

But those statutes are illegal too.

The Court could have easily swept away all executive discretion in levying taxes. That would be the constitutionally correct decision. But they didn't. And they didn't because the Supreme Court is not designed to uphold the Constitution. It is designed to be a political body consisting overwhelmingly of partisan judges nominated by partisan presidents and confirmed by partisan senators. The so-called "liberals" joining the majority opinion are proof of that, and they would have easily dissented if a Democrat were president.

The same can be said of the great Justice Thomas who wrote a dissenting opinion so controversial––so expansive and ungrounded in originalist principles––that not a single Justice joined in his dissent:

"...one colleague submits that Congress may hand over to the President most of its powers, including the tariff power, without limit." ––Gorsuch, J.

With that said, partisanship in the High Court is nothing new. Neither are unconstitutional opinions signing-off on delegations of power between branches, or the Court's disposition to side with the federal government at the expense of the states. The Court has always been this way––at least since the 1789 Judiciary Act.

Friday's ruling may be just another example of federal power gone awry, but it is particularly concerning that many Republicans who advertise themselves as conservatives, defenders of the Constitution, federalists, and so on, are throwing economics, tradition and principle to the wind for party politics' sake.

And although he also fails to sufficiently condemn delegation, the one silver lining from the tariff decision comes from Gorsuch's rebuttal to Thomas:

Section 1 of Article I vests “[a]ll legislative Powers herein granted” in Congress and no one else.

Section 8 proceeds to list those powers in detail and without differentiation.

Neither provision speaks of some divide between true legislative powers touching on “life, liberty, or property” that are permanently vested in Congress alone and “other kinds of power[s]” that may be given away and possibly lost forever to the President.

In anticipation of the objections that will be thrown my way, let me stake my claims from the beginning:

1) The makers (the Ratifiers) of the Constitution insisted on the principles of Non-delegation and Representative government. These were conditions of ratification.

2) Representative government consists of law-making powers vested in local representatives elected by their constituents. Only Congress consists of such representatives, so only Congress is vested with the power of law-making. Therefore, representative government requires law-making to originate with Congress.

3) Non-delegation is a constitutional prerequisite of representative government. One of Congress's exclusive powers is law-making. Therefore, Congress may not delegate its law-making powers.

4) Two of Congress's express law-making powers are the laying and collecting of Taxes, Duties, Imposts and Excises, and the regulation of Commerce. A tariff can only ever be a Duty, an Impost, a Tax, a regulation, or a combination of these. Therefore, all possible forms of tariffs are covered by Congress's law-making authority, and reserved to them.

5) Delegation of Congress's Taxation and Regulation powers consists of allowing these powers to be exercised at the discretion of a body other than Congress. Some statutes abdicate Congress's powers to other bodies. But abdication is not legal unless a constitutional amendment permitting delegation has been ratified. No such amendment has been ratified. Therefore, all statutes delegating powers to be exercised at the discretion of bodies other than Congress are illegal.

6) Some tariff-related statutes delegate these powers to the executive. By virtue of being executors, and not representatives, executives cannot exercise these powers at their own discretion. Therefore, all tariff-related statutes delegating these powers to the executive are illegal.

7) As the sole possessor of the law-making power, and being constitutionally prohibited from delegating this power, Congress may only pass laws permitting discretionary enforcement of laws when the rule is clearly defined, and when the activation of the rule is triggered by something other than the executive.

8) The IEEPA (and other tariff statutes) violates these principles by permitting the executive to trigger the activation of a rule at his own discretion.

The inevitable conclusion of all this is that the President must give up the assumed powers of imposing taxes and regulating commerce. But another inevitable consequence is that the executive is stripped entirely of its bureaucracy—aka the bureaucratic class, the judge, jury, and executioners, the unelected branch, the greatest threat to liberty and federalism—the deep state.

Republicans, you must choose:

Would you rather the Court uphold a President's ability to exercise congressional powers? Or would you rather they obliterate the SWAMP?

Because you cannot have both. The very act of delegation enables the deep state. It enables unsupervised, unrepresentative law-making on the part of unelected, unaccountable, virtually invulnerable deep state actors.

President Trump may have succeeded in reducing the number of federal employees from 3 million in January 2025 to 2.7 million in January 2026, but that is still 2.7 million federal employees too many. Those who remain still retain virtually unlimited power to legislate on their own accord, and we must take the prudent position that the successes of this administration are only temporary.

If so, we could effect laws that prevent some of the administration's policies––many of which the Right find desirable––but we would also neuter the evils of the current regime. And more importantly, we will halt the progress of that evil and prevent future executives from wielding this power against Americans.

It has gone on long enough. No more.

What the IEEPA Granted

The President claimed that the International Emergency Economic Powers Act (IEEPA) authorized him to impose tariffs. As the IEEPA states, a national emergency must first be declared before the IEEPA powers may be exercised.

Once an emergency has been declared, the President is authorized to do any of the following:

(B) investigate, block during the pendency of an investigation, regulate, direct and compel, nullify, void, prevent or prohibit, any acquisition, holding, withholding, use, transfer, withdrawal, transportation, importation or exportation of, or dealing in, or exercising any right, power, or privilege with respect to, or transactions involving, any property in which any foreign country or a national thereof has any interest by any person, or with respect to any property, subject to the jurisdiction of the United States;

The key phrase here used in the President's defense was the power to "regulate...importation."

The first problem here is what is meant by "regulate." As far as the makers are concerned, to "regulate" means to "fix, establish, adjust by rule", but not to levy or collect taxes. If it did, then Art. 1, S.8, C. 5 makes little sense when it talks about regulating the value of money and fixing standards...

To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures;

The above clearly pertains to *defining *the gold and silver content of the U.S.'s various denominations of coins and the exchange rates between all coins.

It would also be a curious definition given clauses 1 and 3, where the power to tax in clause 1 is granted by the word "taxes", not "regulate":

The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises...

And since clause 3 enumerates the power to "regulate commerce", if regulation means taxation then this clause is redundant. If Congress already has the power to tax anything as stated by the Taxing Clause, why do they need a separate clause to tax "commerce", which is a subset of anything? The only way the Commerce Clause could make sense, then, is if "regulate" means "to fix rules" and "to tax." But the framers and makers of the Constitution never considered "regulate" to mean "tax."

Consider the 2nd amendment, which reads:

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

Do we think that the ratifiers, here, meant that well taxed militias are necessary to security? Or did they mean that they should be well prepared through prudent management?

Finally, we run into the problem of delegation.

The power to regulate is a legislative power held exclusively by Congress. We know this is a legislative power because the likes of James Madison (one of three drafters) said:

The legislative powers vested in Congress are specified and enumerated in the eighth section of the first article of the Constitution.

And as for those vested powers, the Vesting Clause of Article 1, Section 1 explicitly assigns the legislative power exclusively to the Congress:

All legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.

This last fact becomes doubly problematic for any president who wishes to impose taxes or regulate commerce.

First of all, as we have seen from Art. 1, S.8, C.1, the power to lay and collect taxes, duties, imposts and excises is a legislative power held by the Congress. And secondly, the power to regulate commerce (clause 3) is also held exclusively by Congress.

Regulating Importation and "Commerce"

Let's assume a president did regulate "imports" after a proper delegation of power authorized by a constitutional amendment. According to the Commerce Clause, Congress would only be able to delegate to him the power to "regulate" commerce. But, as "commerce" has a very specific meaning, not all goods traveling to, or throughout, the U.S. are examples of commerce.

To the founding generation, "commerce" had a very specific meaning. It meant that branch of economic activity performed by men they called "merchants" or "merchandizers". These kinds of people did not produce physical goods or transform them in any way. Their role was to buy them in one place, and sell them in another. We, today, would consider these people to be arbitragers, wholesalers, and import-exporters. The founders understood these kinds of economic agents to be essential, and analogized them to "the circulatory system of the body."

"Commerce", then, means more than the simple moving of goods, and usually does not apply to producers who retail their own products, and certainly not to any and all economic activity.

[T]he word “commerce” nearly always has an economic meaning. When used economically, the word was bound tightly with the Lex Mercatoria and the sort of activities engaged in by merchants: buying and selling products made by others (and sometimes land), associated finance and financial instruments, navigation and other carriage, and intercourse across jurisdictional lines.

I uncovered almost no evidence that there was a predominant legal meaning, or even a common legal meaning, that included all gainful economic activities.

When used in legal discourse, “commerce” did not include agriculture, manufacturing, mining, malum in se crime, or land use. Nor did it include activities that merely “substantially affected” commerce; on the contrary, the cases include wording explicitly distinguishing such activities from commerce.

Again, "commerce" to the founding generation did not mean the federal government had a grant to regulate any and all economic activity. The Anti-Federalists never would've ratified the Constitution otherwise. And anyway, one of the main purposes of the Commerce Clause was to *prevent *states from erecting trade barriers against one another:

“It is very certain [the power to regulate interstate commerce] grew out of the abuse of the power of the importing states in taxing the non-importing, and was intended as a negative and preventative provision against injustice amongst the states themselves..." ––James Madison

With a proper definition of "commerce", therefore, the President could regulate "imports" because they are a kind of commercial activity. "Importation" is...

"...where Goods and Merchandize are brought into this Kingdom from other Nations."––J. Giles, New-Law Dictionary

The words "Merchandize" and "Nations" thus imply the merchant-like nature of importing. Goods are brought from one place to another by those who aim to buy and sell the same. But it is only commerce if it occurs across jurisdictional lines, hence Clause 3's grant to regulate commerce with "foreign nations, and among the states, and with the Indian tribes."

From there, the President could, as Congress now can, regulate any and all imports or exports from or to any state, country, nation, people or area of the world.

As of right now, only the Congress has that power.

Tariff Powers from Other Sources

In the immediate aftermath of the tariff decision, a meme began circulating among the Right, claiming that while the IEEPA tariffs had been struck down, the President still had authority under different statutes to keep his tariff policies in place.

Justice Kavanaugh listed many of these in his dissent (p. 169-70), and many probably saw these in a video by Ben Shapiro:

The problem is, all of these are illegal too.

Kavanaugh cites three laws for us to consider: the Trade Act of 1974, the Tariff Act of 1930, and the Tariff Expansion Act of 1962.

Let's start with the best example of how executive grants are supposed to be made by Congress––incidentally the one cited by President Trump to reinstitute his tariffs.

Verdict: ILLEGAL

"Whenever fundamental international payments problems require special import measures to restrict imports-

(1) to deal with large and serious United States balance-of-payments deficits...

*...the President shall proclaim, for a period not exceeding 150 days (unless such period is extended by Act of Congress)- *

(A) a temporary import surcharge, not to exceed 15 percent ad valorem, in the form of duties (in addition to those already imposed, if any) on articles imported into the United States;"

A good thing about this section is that Congress has defined the 'trigger' which activates this rule. In this case, the authorization cited is "large balance of payments deficits." But the two very best things about this law is that there is a sunset date which requires reauthorization from Congress for renewal, and the 15% cap placed on imports.

The bad, of course, is that "large and serious" balance of payments deficits isn't clearly defined, making the trigger subjective. Triggers such as this must be exactly prescribed, and probably by formula.

Verdict: ILLEGAL

"After receiving a report under section 2252(f) of this title containing an affirmative finding regarding serious injury, or the threat thereof, to a domestic industry, the President shall take all appropriate and feasible action within his power which the President determines will facilitate efforts by the domestic industry to make a positive adjustment to import competition [by]...

...proclaim[ing] an increase in, or the imposition of, any duty on the imported article;"

This statute is all bad. First, the "report" referred to comes from the U.S. International Trade Commission. This is an *executive *commission whose commissioners are appointed by the President. As we've already established, triggers may not rest upon the discretion of the executive, for they can simply choose to enforce laws whenever they want.

Verdict: ILLEGAL

"(1)If the United States Trade Representative determines under section 2414(a)(1) of this title that—

(B)an act, policy, or practice of a foreign country

(ii)is unjustifiable and burdens or restricts United States commerce...

...the Trade Representative is authorized to—

(B)impose duties or other import restrictions on the goods of, and, notwithstanding any other provision of law, fees or restrictions on the services of, such foreign country for such time as the Trade Representative determines appropriate;"

This statute is arguably worse than the last in that the U.S. Trade Representative is given the authority to impose tariffs and restrict importations. The Trade Representative is an unelected official, again, appointed by the President, yet this statute grants them near absolute discretion in determining trade policy. There are no tariff caps or sunsets, and the trigger for enforcement is the same as the person enforcing it.

Verdict: ILLEGAL

"Whenever the President shall find as a fact that any foreign country places any burden or disadvantage upon the commerce of the United States by any of the unequal impositions or discriminations aforesaid, he shall, when he finds that the public interest will be served thereby, by proclamation specify and declare such new or additional rate or rates of duty as he shall determine will offset such burden or disadvantage, not to exceed 50 per centum ad valorem or its equivalent, on any products of, or on articles imported in a vessel of, such foreign country;"

Just as before, the trigger for enforcement is the President. Here he may choose, for any reason, to impose a tariff on imports. There is no declaration from Congress or act of war by the offending country. In the earlier section, section (a), the "aforesaid" discriminations are so broad as to enable protectionism for any foreign regulation of trade whatsoever:

[If a foreign country] Discriminates in fact against the commerce of the United States, directly or indirectly...in such manner as to place the commerce of the United States at a disadvantage compared with the commerce of any[foreign country].

Since all forms of taxation, regulation, inspections, fees and other conditions of doing business with foreign countries always impose a cost that creates a disadvantage by reducing trade volume, this statute authorizes the President to impose tariffs on any country that isn't an absolute free market. Such markets exist nowhere on earth.

Verdict: ILLEGAL

This last statute is triggered by the Secretary of Commerce finding that certain imports represent a threat to national security. In which case:

" (ii)if the President concurs, [he shall] determine the nature and duration of the action that, in the judgment of the President, must be taken to adjust the imports of the article and its derivatives so that such imports will not threaten to impair the national security."

Again, there are no boundaries imposed on the scope of the President's power in determining "the nature and duration" of actions to be taken.

No More

Congress cannot do this. They must impose a sunset. They must authorize specific actions with specific limits.

Simply declaring that they authorize the use of any actions whatsoever violates the principle of non-delegation and affords latitude to a President who is liable to assume powers that Congress cannot give, or powers which do not exist.

The future of this country rests on the renewal of the past.

And that means the Original Constitution.

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