Abolish the President's Virtually Unconstrained Power to Impose Tariffs

As Trump's trade wars demonstrate, giving the president unilateral authority to impose tariffs is both dangerous and unconstitutional. Getting rid of it is likely to require a combination of litigation and political mobilization.


President Trump has used his power to set tariffs to wage multiple trade wars that have already inflicted major costs on the American economy, and threaten to cause even greater harm. That restrictions on international trade damage the economy is one of those areas on which economists across the political spectrum agree. Nonetheless, Trump has persisted. In a recent column in the Washington Examiner, conservative political commentator Quin Hillyer urges Congress to repeal the president's power to set tariff, unwisely delegated by Section 232 of the 1962 Trade Expansion Act:

It is long past time for Congress to reclaim from the president the authority to levy tariffs at his own discretion….

On the legislative front, a new coalition of industry groups is pushing Congress to pass a law reining in presidential tariff-levying powers. A number of lawmakers are pushing various proposals to do so. The conservative Heritage Foundation suggests that the power should be entirely abolished….

The delegation of this authority is a relatively recent thing, having come 57 years ago via through one small section of the Trade Expansion Act of 1962. Section 232 (as subsequently slightly amended) provides that if the president, on the advice of the Commerce Department, determines that if particular imported goods somehow threaten national security, he can ban their import or impose tariffs or quotas on them. The section does not require him to secure Congress' approval.

In 54 years, presidents had used that power only six times. Trump, however, has used it repeatedly, against multiple products from multiple nations. In doing so, he has vastly expanded the ordinary meaning of "national security" to include virtually any perceived harm to the economic interests of the United States. Such expansive interpretations of "national security" are themselves objectionable, being clearly outside the original spirit of Congress' delegation of power as a Cold War measure.

He also argues that Section 232's extremely broad grant of power to the president is unconstitutional, and should be invalidated by the courts:

The Constitution provides that "all bills for raising revenue shall original in the House of Representatives." Moreover, only "the Congress shall have power to lay and collect taxes, duties, imposts, and excises" and to "regulate commerce with foreign nations." ("Duties" are a type of tax synonymous with "tariffs.")

Nowhere does the Constitution even hint at giving the president unilateral authority to lay any sort of tax or duty or to regulate commerce.

It is true that for years Congress has delegated various powers to the discretion of the executive branch. In most cases, those delegations have involved mere details, with Congress making fairly clear what its law entails but leaving specifics on how to implement it, via regulatory authority, to the executive bureaucracy. These other delegations, however, usually don't cede core congressional powers to the president.

As cited above, the powers to tax and to regulate commerce with foreign nations are core constitutional roles of Congress. Unlike most issues of delegated authority, they include not merely matters of interpreting Congress' slightly ambiguous will, but instead the forfeiture of entire congressional prerogatives specifically delineated in the Constitution….

The delegation of the power is itself abusive, on its face, of constitutional design. Trump's expansive use of it is not just abusive, but abominably so. It should not stand.

I agree with Hillyer on both the legislative and constitutional points. I am not optimistic, however, that Congress will actually pass a bill to repeal Section 232 anytime soon, or even significantly narrow its scope. Many Republicans will be reluctant to challenge Trump on an issue that is central to his political agenda. Many Democrats are protectionists themselves, and prominent Democratic presidential candidates Bernie Sanders and Elizabeth Warren have protectionist agendas at least as far-reaching as Trump's. Protectionist Democrats may be reluctant to curtail a power that could come in handy for a president of their own party. Even if a bill curbing Section 232 passes, it is unlikely to get a large enough majority to override Trump's virtually inevitable veto.

A legal challenge could potentially be more promising. However, it is worth noting that Hillyer isn't quite right to say that there is a "lack of court challenges against the delegation of that power to the president in the first place."  Earlier this year, the United States Court of International Trade issued a decision rejecting a challenge to Section 232 brought by business interests harmed by Trump's steel tariffs.

The court recognized that "the broad guideposts of subsections (c) and (d) of section 232 bestow flexibility on the President and seem to invite the President to regulate commerce by way of means reserved for Congress, leaving very few tools beyond his reach."  It also concedes that Section 232 effectively allows the president to impose tariffs on almost any imports of any kind, based on bogus "national security" concerns, because the statute does not permit courts to review either the president's motives or his "fact-finding." In addition, as the majority explains,  the law does not limit the countries whose products are subject to the president's power, the amount of the tariff he is allowed to impose, or its duration. While the statute creates a procedure for the Commerce Department to make findings on whether there is a genuine threat to national security, the president is not bound by those findings.  Thus, we get such absurdities as Trump's imposition of tariffs on Canadian steel (albeit, recently lifted), on the theory that they somehow pose a threat to "national security."

But the Court of International Trade still concluded that the Supreme Court's extremely permissive non-delegation precedents still required it. Those cases uphold delegation anytime it is based on an "intelligible principle," and that concept is defined so broadly that virtually any delegation can pass muster.

In a separate opinion, Judge Gary Katzmann implicitly urged the Supreme Court to strengthen the non-delegation doctrine and strike down Section 232. He pointed out that imposing tariffs is a "core legislative function" and asked: "If the delegation permitted by section 232, as now revealed, does not constitute excessive delegation in violation of the Constitution, what would?" Judge Katzmann is right. Giving the president the power to impose tariffs on virtually any imports for virtually any reason (so long as he claims it somehow relates to "national security") is surely an example of unconstitutional delegation, if anything ever can be.

In fairness, at the time Section 232 was enacted in 1962, there was a widespread assumption that the president could be trusted with the power to impose tariffs, because he was less likely to be "captured" by protectionist interests than more parochial members of Congress, some of whom are susceptible to lobbying by business and union interests who seek to keep out foreign competition. But even if this was true at the time, it's a questionable assumption in  the age of Trump, who made protectionism one of his key issues in winning the GOP primary in 2016.

The fact that Democrats like Sanders and Warren have adopted the same strategy suggests that the trend towards presidential protectionism may not be unique to Trump, and could outlast him. While majority public opinion has become more favorable to free trade in recent years, the bases of both major parties include a substantial number of economically ignorant voters who are susceptible to protectionist appeals. As Trump demonstrated in 2016, trade is one of those issues that most cleanly separates relatively knowledgeable voters from those who are much less so, and the latter have considerable clout in the primary process. A similar dynamic in the Democratic Party may help explain why most of the party's current presidential candidates have been unwilling to take a strong stance in favor of free trade, despite Democratic opinion increasingly trending in that  direction.

Even if the average president remains likely to be less protectionist than the average member of Congress, getting protectionist legislation through Congress is still likely to be more difficult than for a president to decide to impose tariffs at the stroke of his pen, if only because of the difficulty of getting Congress to pass major legislation of any kind.

In my view, the Founding Fathers made a mistake when they gave the federal government nearly unconstrained power to enact restrictions on international trade. But that error is exacerbated when the authority to impose tariffs is concentrated in the hands of a single man or woman, who can slap them on virtually any goods for any reason.

Unfortunately, in June the Supreme Court refused to hear the Section 232 case decided by the Court of International Trade. But, around the same time, in the Gundy case, the conservative majority on the Court signaled that they might be willing to tighten up non-delegation standards in the future. If so, Section 232 would be a great place to start. It is a particularly egregious case of overbroad delegation, it causes great harm, and the issue does not divide people along strictly partisan lines.

There are both Republican and Democratic protectionists, but also many in both major parties who support free trade and recognize the great harm caused by tariffs. A Supreme court ruling invalidating Section 232 could not easily be condemned as narrowly ideological or partisan.

Ultimately, ending the unconstitutional delegation of tariff authority to the White House will probably require a combination of both legal and political action. The two are often mutually reinforcing, as was the case with many previous successful efforts to strengthen enforcement of constitutional constraints on abuses of government power.

The Court is more likely to strike down Section 232 if key swing justices believe they have the support of a formidable political movement that can minimize any potential backlash against the justices. And political leaders are more likely to stand up for free trade if there is a likelihood that doing so can help produce success in court, as well as in the legislative process.

UPDATE: I have made a few small additions to this post.

NEXT: Short Circuit: A Roundup of Recent Federal Court Decisions

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  1. Anything from Somin can be condensed to orange man bad, open borders, free stuff for the world paid for by American taxpayer. That’s pretty much the Somin cliffnotes.

    1. I don’t get your complaint.

      First, the tariffs are terrible policy, no matter how much you love Trump.

      Second, the on-again off-again approach makes them worse.

      Third, Somin also criticizes the trade policies proposed by Warren and Sanders. He’s critical of protectionism which, he correctly notes, is supported by members of both parties.

      1. “First, the tariffs are terrible policy…”

        Are they? Why? Address them as supported by various democratic candidates”

        “Second, the off again-on again approach makes them worse”

        Depends. They appear to be used as a negotiating tactic with China. In such, such a fast acting approach makes them better.

        1. “First, the tariffs are terrible policy…”

          Are they? Why? Address them as supported by various democratic candidates”

          Tariffs not only impose immense economic costs but also fail to achieve their primary policy aims and foster political dysfunction along the way .

          (Or to put it in terms that people who used to pretend to be conservatives should be able to understand: tariffs are taxes.)

          1. Tariffs are taxes, true. As are income taxes, sales taxes, cigarette taxes and more. Every tax has two major components to it.

            A revenue raising component and an activity-dissuading activity. If the tax’s primary purpose is to raise revenue, one attempts to suppress the activity dissuading activity. By contract, if the primary purpose is to dissuade activity, the tax revenue is secondary. Every tax imposes economic costs. Income taxes reduce work. Sales taxes reduce sales. Cigar taxes are regressive, and reduce sales.

            Now, the major purpose of the China tariffs is to cause China to come to the bargaining table by economically affecting China. And that is working. Chinese exports to the US are down by 10 – 20% in 2019, compared to 2018. Given the strength of the US economy, that can be largely attributed to the tariffs. Are there costs? Yes.

            But consider, China steals $200 to more than $600 Billion worth of IP from the US, every year. That’s massive. Getting them to pay reasonable rates for the IP is essential for long term US economic security. And if the price is a short term tariff, so be it.

            1. Taxes dissuade the activity being taxed. Going from dissuading trade with China to “bring China country to the bargaining table to force them to pay for IP” is so many huge steps that the second doesn’t actually follow the first.

              Of course, it isn’t clear that reducing IP theft is the administration’s goal. Simply reducing the trade deficit has been expressed as the goal more frequently.

              It’s not really clear of tariffs have reduced the trade deficit. It’s also unclear that China has made any effective progress on reducing IP theft.

              1. Imports from China are down ~20% compared with this time last year. This can largely be attributed to the tariffs. China doesn’t like this.

                1. Armchair, when you are reckoning the advantages of making the other guy mad, how much do you discount for the Pearl Harbor effect?

                  1. The Pearl Harbor effect? You’re suggesting a tariff with multiple warnings ahead of time is the same a surprise attack which kills thousands of your countrymen?

                2. Americans don’t like it, either.

                  1. They don’t like the hundreds of billions in IP theft a lot more.

                    1. You think every American is feeling that theft? How do you think IP integrates into the GDP anyhow?

      2. Chuck Schumer says no matter how much you hate Trump, the tariffs are good policy.

        1. Whether proposed by Democrats or Republicans, they are a terrible idea.

          On-again off-again makes it worse because of the uncertainty it creates.

          Want to expand your manufacturing capacity because the tariffs hinder Chinese competition? Better wait and see what Trump does tomorrow.

          1. Uncertain threats are more effective than certain threats. Carrot and stick doesn’t work if you keep up the stick even when you get concessions. As a negotiating tactic, the “on again, off again” nature of them makes perfect sense.

            1. The uncertainty is what is faced by American firms trying to plan without knowing what the tariff situation is going to be from month to month. That hurts the economy, over and above the damage done by the tariffs themselves.

              I’m sure you think Trump is playing some brilliant 11-dimensional chess here. You’d think that no matter what he did.

              1. 11 dimensional chess? Don’t exaggerate, what Trump is doing isn’t even as complicated as checkers. But a lot of people committed to thinking or portraying Trump as an idiot pretend not to understand it.

                Sure, it hurts the economy. No question about that. In the long run loosing one domestic industry after another will hurt us more, this is some short term pain to avert that long term pain.

                A fiscal crash is already baked in, the less dependent we are on foreign manufacturing when it happens, the better we’ll weather it when our trade deficit is forced to zero whether we like it or not.

                1. Well, you seem to think he’s being clever. He’s not.

                  And why exactly should China negotiate with him? He’s amply demonstrated that he won’t keep up his end of a bargain.

                  1. No, I don’t think he’s being very clever. I think he’s pursuing an obvious tactic that just about anybody in the White House could have executed if they had cared enough to. That is to say, what is unusual about Trump isn’t that he is clever, but rather that he actually cares about the US becoming increasingly dependent on a strategic foe.

                    “He’s amply demonstrated that he won’t keep up his end of a bargain.”

                    That’s the TDS talking; He’s done no such thing.

                  2. Bernard….What alternative do you offer? This should be pretty easy for you to answer.

                    1. Brett,
                      Drop it. If Obama had put on these tariffs you’d would have screamed and yelled and cited Ricardo and whoever else.


                      Maybe if you explained more precisely what the problem is I would have a suggestion.

                      As it is the defenses of the tariffs sound a lot like the old syllogism:

                      We must do something.

                      To put up tariffs is to do something.

                      Therefore we must put up tariffs.

                    2. Brett : he actually cares about the US becoming increasingly dependent on a strategic foe.

                      bernard : Maybe if you explained more precisely what the problem is I would have a suggestion

                      Seems to me Brett summarised the problem quite clearly and with admirable efficiency. Mutual trade dependence between friendly nations is fine and tends to enrich the majority in both nations. But there is more to life, and policy, than enrichment; as ML quoted Adam Smith below :

                      “It will generally be advantageous to lay some burden upon foreign industry, for the encouragement of domestic industry, when some particular sort of industry is necessary for the defence of the country. The defense of Great Britain, for example, depends very much upon the number of its sailors and shipping. Defense is of much more importance than opulence.”

                      Becoming dependent on a foe is folly. As Lenin said – “the capitalists wil sell us the rope with which we will hang them.”

                      Maybe this is not a good idea.

                      Trump’s policy is to get US companies to move their supply chains, and their IP, out of China. They can move them to Vietnam or Mexico or India if it’s too expensive to move them back to the US.

                      On again off again tariffs are an excellent tool to persuade US companies to move. The uncertainty in the level of tariffs of which you complain does indeed mess up the planning of American companies who wish to produce in, or import from, China. That’s the point. Put your supply chain somewhere else.

                      As Brett says this is not 11D chess. It’s obvious. As is the Chinese response – let’s see if we can wait Trump out.

    2. If there is anything the Trump-appeasing Volokh Conspiracy and its intolerant, obsolete fans can’t stand more than a libertarian position, it is the lone genuine libertarian among the Conspirators.

      Carry on, clingers. Maybe touch up some of that lame libertarian drag, though.

      1. No true libertarian supports an open borders policy of third-world peasants who will turn America into a non-libertarian society.

        1. Open borders has been part of the Libertarian Party’s platform since it was founded, as well as part of the general libertarian philosophy as summarized in “Libertarianism in One Lesson”. But this article was not about open borders (for people), it was about tariffs, and the President’s wrongly delegated power to impose them.

          1. Open borders after everything else was accomplished has been part of the libertarian agenda from the start. Open borders while we’re still a welfare state is a relatively new and mindless development in libertarian thought.

            This is the sort of thing where you can see the transition of a philosophy from being based on thinking about things, to just being a mindless adherence to talking points, take place in real time.

            1. Open borders after everything else was accomplished has been part of the libertarian agenda from the start.

              False. Libertarians do not believe in holding rights hostage to other rights. The “Oh no we can’t do that because of the welfare state” could be used for anything. “No, we can’t legalize drugs because of the welfare state.”

              1. Maybe Libertarians don’t believe in path dependence any more, but the Libertarian theorists of the era when I joined the party weren’t that stupid or self-blinded.

                “The “Oh no we can’t do that because of the welfare state” could be used for anything. ”

                Only if you don’t care if you’re making sense. There’s a very simple reason why open borders are a bad idea when you’re a welfare state, so simple even you likely understand it: You can’t let just anybody in when you’re giving away free candy, or you run out.

              2. Plus, nothing says that access to “welfare” programs can’t be conditional on length of residence, or perhaps on factors that immigration officials now look at. While I don’t like turning people away at the border, I have no problem with telling them, politely but firmly, “Sorry, you don’t qualify for this program, because you just came to this country a year ago.”

                1. Actually, something does say that. Several somethings.

                  First, if you’re here illegally, you don’t typically go around wearing a T shirt that reads, “I’m an illegal immigrant, what are you going to do about it?” No, you get fake ID, engage in a bit of identity theft, and pretend to be here legally. If the pretense is even minimally successful, you can get welfare for the same reason you don’t get deported: You’ve got papers saying you’re a citizen.

                  Second, while theoretically we could take a hard nosed position that if you came to the country any time in the last 10 years, you don’t get bupkis in the way of public support, the first time somebody shows up with hungry kids you’ll cave.

                  Third, you’re ignoring that one of the major parties is engaged in a program of deliberate demographic transformation of the country, “electing a new people”, and will sabotage any efforts to disincentivize immigration by the dependent, who they see as a key constituent group.

                  So, in reality, the only reliable way to keep immigrants from ending up public charges is to exclude immigrants who are at all likely to become such charges, which means you have to have control over the border.

                  1. Well said. Some guy elsewhere on Reason said it best. We can’t let people come in and tell them that they have to stand on their own feet because we’re too nice, as a people. Anyone here will get health care, education, food, housing, and all other needs taken care of, so the only way to reduce those expenditures is to prevent people who will need them from being here.

        2. Please don’t feed the troll.

          1. I agree, no one should engage him. But the fishes he catches seem to be agreeing with him more than disagreeing these days.

      2. Funny. There is no more fine example of “clinging” that the type of empty headed concern trolling you have defined yourself with.

        We get it! You don’t like us and you’re not smart enough to actually combat arguments.

        Keep clinging, though!

      3. There’s no such thing as a ‘libertarian’ open borders policy with a welfare state and substantial infringement of property /individual rights bolted on. Its a disguised wealth transfer.

        1. Open libertarian borders presumes an open economy — the more the better.

          If said mass importation elects those who support it nominally, who then turn around and hyper-regulate, then it is self-defeating.

    3. Why don’t you just say, “TL;DR”?

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      hop over to this site>>>> http://earny.xyz/PQ9BUhu

  2. We get it, you don’t support President Trump.

    1. He’s mostly a libertarian. He isn’t a bigot. What did you expect?

      1. Your definition of “bigot” is “one who doesn’t think a man deserves a marriage license and wedding cake for demonstrating to the world that he engages in unnatural sodomy.”

    2. We get it, you don’t like to read.

  3. No one should have the power that is being used – even someone we might like, because – sure as hell – someone we don’t like will come along and use it too.

  4. Section 232 would be ruled unconstitutional if challenged in court, and sooner or later a powerful corporation or industry will do it.

    1. Did you skip the part of this post about how § 232 was recently challenged in court by powerful corporations, how the court unanimously found that it was not unconstitutional, and how the Supreme Court declined to review that decision?

      1. The article does hint at larger problems, such as “it’s economics and therefore fair game”, and “supine Congress casts off its power under the sophistry of the executive branch doing the heavy lifting with general wishes from Congress”, both of which benefit those in power in other circumstances.

        Maybe what’s wrong is the incorrect abuse and unconstitutional deleg….hahahahahaha

        Just kidding.

  5. The courts just take for themselves the power to set tariffs. Problem solved.

  6. Try that again:

    The courts should just take for themselves the power to set tariffs. Problem solved.

  7. A few points…

    1. Trade policy with China has been broken, and been broken for quite a while. In many ways, it’s a classic prisoner’s dilemma, where China is consistently “betraying” the US. Mutual agreement would be preferable, but in if China consistently “betrays…”, well…

    2. Both parties see this and realize it. It’s why it hasn’t been a “bigger deal”. In many ways, Democrats support Trump on this issue, as do many Republicans.

    3. The President is uniquely suited to use tariffs as a negotiating tactic to fix this. The long process of passing a law isn’t suited to the relatively fast change in tariffs as a negotiation tactic needed. Moreover, while Ilya notes the way protectionists can capture some in Congress, he doesn’t note how the pro-China supporters can “capture” certain individuals in Congress, preventing such tariffs from passing.

    4. Keep in mind, China steals 225 to 600 BILLION from the US per year in IP theft. That’s….a very large amount. That’s why the tariffs are being instituted (among other reasons).

    1. That too is my impression.

    2. You don’t know what a “prisoner’s dilemma” is, do you?

      1. Well, let’s explain it to you then, in the context of US-Chinese trade relations.
        A prisoner’s dilemma is a decision analysis system between two parties. The parties are given the individual option to cooperate or to not cooperate (“betray”). There are 4 options.

        1. If the individual party (A) “betrays” the other (B), while the other party (B) cooperates with A, it’s the best option.
        2. If both parties cooperate, it’s the second best option.
        3. If both parties betray, it’s third best.
        4. And if a party (A) chooses to cooperate, while it is betrayed by the other party (B), it’s the worst option.

        However, if one is considering the best course of action for both parties combined, it’s choice 2 (cooperation by both)

        In the context of US-China trade relations, cooperating implies low/zero tariffs and full acceptance/enforcement of Intellectual property laws. Previously, we were in a situation where China was in choice 1, while the US was in choice 4. China was stealing hundreds of billions in US IP, while benefiting from low/zero tariffs. And China kept promising to “fix” things…

        1. Your explanation is correct asfar as it goes, but omits a key point.

          In the Prisoner’s dilemma the prisoners are not allowed to communicate or contract with each other. So for both prisoners, choosing to betray the other will always better, regardless of what the other does. Hence, in a one-time game, both will betray and get the worst combined result.

          But here, the US and China clearly are not prohibited from communicating or making a deal, and each party can observe the other’s action, so no, it’s not a prisoner’s dilemma at all.

          1. Communication without enforcement doesn’t stop it being a prisoner’s dilemma game. For the promise to co-operate can be a lie. Hence the real game is an iterated prisoner’s dilemma as I mention below. For which the optimum strategy is not bend over and present your backside, but tit-for-tat.

          2. As Lee points out, it is more proper to describe the relations as an iterated prisoner’s dilemma. The iterative nature was implied in the original post (IE, “where China is consistently “betraying”).

            The communication has been made clear. China continues to betray.

        2. You describe the prisoner’s dilemma in its single game form.

          Obviously trade policy – with the payoffs in the standard prisoner’s dilemma form – is an iterated prisoner’s dilemma. For which the best strategy is tit-for-tat.

          The US strategy hitherto, fully endorsed by all economic and foreign policy panjandrums, has always been to co-operate with China, whatever China’s last move. China’s last move has usually been defect – which is the optimal strategy against an opponent who always co-operates.

          The wacky new Trump strategy is…..tit for tat.

          1. The US strategy was originally based on the idea that China was a poor, underdeveloped nation, and that as it became more prosperous, China’s government would auto-magically moderate, and China would become at least a semi-free society. So, to accelerate this transition, China was given favorable treatment, rather than being treated as an equal.

            As China successfully infiltrated our government and intelligentsia, the policy came be be based on China wanting it continued, with the original justification merely a pretext for doing China’s bidding.

            Trump’s policy is based on the realization/admission that the original justification has been proven objectively false, and a determination to root out Chinese infiltration of our institutions. You can see this in the way they’re presently going after the “Confucius Institutes” China uses to buy influence over and spy on our educational system.

            Closing Confucius Institutes

            It’s going to be a long hard slog to dig out all the Chinese moles, they’ve penetrated our government more successfully than the USSR ever did, as you can see if you look at how that ugly OPM data breach really happened.

            1. As China successfully infiltrated our government and intelligentsia,

              Evidence, please.

              1. I provided a link on the infiltration of intelligentsia.

                As for infiltration of government, remember Hillary’s private server? It ended up configured to forward her emails to China…

                Or maybe you remember Diane Feinstein’s driver, who turned out to be a Chinese spy?

                1. Uh, the source in that article is Rep. Gohmert….

                  Shockingly, a moment’s Googling and it turns out that was BS:

                  And look up the Feinstein thing, her driver being a spy is also not what happened.

                  1. Yes, her driver being a spy is absolutely what happened.

                    As for her email, you tend to confuse “disputed” and “debunked”.

                    1. Brett, you put it forth like it was true, not disputed. Second, it’s not disputed – the Senate investigated versus Gohmert shot his mouth off like he does.

                      Your Feinstein link is the initial reporting. you’re also posting disputed data as true.
                      You posted the initial story, which Feinstein disputed.

                      Are you purposefully trying to deceive, or just not doing your homework?

                    2. Sarcastro, the driver was working for Feinstein for 20 years, and passing intel to the Chinese….

          2. You are correct, it is more proper to describe it as an iterated prisoner’s dilemma

    3. Trade policy with China has been broken, and been broken for quite a while.

      The U.S. is getting wealthier, and China is getting wealthier. Some broken.

      1. If someone breaks into your house and robs you, but you get a raise at your job working with everyone else, you’ve still be robbed by the first person.

        1. It’s demonstrably true that we’ve benefited from our trade relationship with China.

          1. Please demonstrate it then. Factor in the $500 Billion a year in IP theft.

            1. Made up numbers are, indeed, made up.

              1. “The United States Trade Representative, which led the seven-month investigation into China’s intellectual property theft and made recommendations to the Trump administration, found that “Chinese theft of American IP currently costs between $225 billion and $600 billion annually”

                1. Yes. The Trump administration says lots of things. I think once they were sort of right.

                  (The very fact that the numbers are such a wide range should be a sign to you of how made up they are.)

                  1. (Rolls eyes)…
                    There’s a range? Oh my gosh. The numbers must be made up if a range is provided….
                    I think we’re done here.

            2. How global trade works:

              “Chinese manufacturing also lowered prices in the United States for consumer goods, dampening inflation and putting more money in American wallets. At an aggregate level, US consumer prices are 1 percent – 1.5 percent lower because of cheaper Chinese imports. The typical US household earned about $56,500 in 2015; trade with China therefore saved these families up to $850 that year.”


              1. Oooh, cheaper Dishwashers from a….source with a stake in the answer. But sure, we’ll give you the $110 billion or so a year in savings, nationwide.

                But then you factor in the trade deficit of ~$300 Billion a year, and how that’s taking away from the GDP per capita of US households, and you’re still at a negative $190 Billion.

                And then you add on the $500 Billion ($225 to $600 Billion, $500 Billion is a nice round number in the middle) in IP theft from China per year (The United States Trade Representative and the 2017 report from the Commission on the Theft of American Intellectual Property, and you’re looking at, call it $700 Billion a year in money China is skimming off the US.

                So, you’ve got a cheaper dishwasher, but Jack’s out of a job because China’s dumping steel to make it, and Joe is on the street because China stole the specialized industrial software for the dishwasher assembly line. Yay….

                1. But then you factor in the trade deficit of ~$300 Billion a year, and how that’s taking away from the GDP per capita of US households, and you’re still at a negative $190 Billion.

                  I’m glad you’re only an armchair lawyer and not an armchair economist. That’s not what trade deficits mean. They do not “take away from” GDP. They’re an accounting fiction.

                  1. Actually, it’s literally in the definition of how to calculate GDP.

                    GDP = C + I + G + (X – M) or GDP = private consumption + gross investment + government investment + government spending + (exports – imports)

                    But what do you know. When someone provides a range of numbers, you think that’s because it’s made up. You probably think Global warming is made up, because they provide a range of estimates too.

                    1. The goal of a healthy first-world country should not be to minimize trade deficits. Even your compatriots below acknowledge that.

                    2. Actually, it’s literally in the definition of how to calculate GDP.

                      Right. Which is what I said: it’s an accounting fiction. It doesn’t “Take away from” GDP. I know that it’s easy for people who know just enough to hurt themselves to say, “Well, you subtract M when calculating GDP, so if we reduced M, then GDP would increase.” But that’s not the way it works. Imports are already included in either C or I; we subtract M to avoid doublecounting. If we reduce imports, then, yes, M goes down, but so do C or I, making it a wash.

                      But what do you know. When someone provides a range of numbers, you think that’s because it’s made up.

                      Reading isn’t your strong point, any more than econ. I said that the fact that the range was so wide was indicative of the numbers being made up. (To be clear, “made up” need not mean a deliberate lie; it could simply be that the numbers are a pure WAG.)

                2. Trump isn’t talking about IP theft, he’s talking about the supposed trade deficit. As DMN has pointed out, the number you keep bandying about seems pulled from the Admin’s hat.

                  Anyhow, China’s a closed market in a lot of ways, there’s not a lot of evidence that if China respected our IP all that income would suddenly flow our way.

                  1. Trump has been talking about China’s trade misbehavior for years, long before he was elected. He has pointed out currency manipulation, dumping, IP theft and yes, trade deficits. Yes I know Econ 101 says trade deficits are not a bad thing per se, but what we are talking about is blocking of access to certain markets in order to protect and strengthen what they consider to be strategic industries.

                    Whatever the actual number is on IP theft it is obvious that it is a significant thing that is harming US companies. The Chinese think it is important enough for them to have devised an elaborate system for sucking it up.

                    David seems to be flying his libertarian flag lately which tends to remind me of why I am not a libertarian. You and bernard seem to have a simpler view: this is wrong because Trump.

                    1. Nice of you to assume my policy objection is in bad faith.

                      I’m against trade wards generally, whether by Trump or Obama or Bush. Only one President has really gone deep into them. I’m generally for free trade, though I don’t mind using trade to attain some concessions regarding labor/environmental standards and the like.

                      Markets are great except when they are not. Global markets are as pure an example of the strength of a market as you’ll get. Trump is screwing with the markets (and spending billions bailing out farmers…), and it’s a dumb idea that won’t get what he wants, plus what he wants is based upon faulty economics. China’s currency manipulation isn’t something anyone thinks is currency manipulation except for Trump. And you, I guess.

                    2. And being against trade wars isn’t a libertarian position.

                    3. Sarcastro,

                      Do you think that before Trump’s tariffs we had free trade with China? If you say yes then we don’t need to continue the discussion, but if you agree with, well almost everyone that the answer is no then the question becomes is it worth trying to fix, and if so how? I don’t see any weapons other than tariffs and threats to de-couple to bring China to heel. Maybe it’ll work and maybe it won’t but there is nothing about the strategy that is either good or bad economics, just considerations of leverage and relative dependencies.

                      As to your constant refrain about accusations of bad faith: I have never accused you of same but I do think that your take on every issue is focused through your tribal lens, and I can’t recall a single time over the years when you have departed from it.

        2. I prefer a slightly different analogy.

          Long long ago, in a galaxy far away, I was a middle ranking business person, and amongst my (inherited) customers was XYZ Co. We sold them quite a lot of stuff (all good stuff of course) which was quite profitable, on paper. Except that they never paid on time. It would take months and months of reminders and pleadings before they would finally agree to pay…so long as they got an ex post facto 20% discount. Which the Big Boss above me would agree to.

          So then they would pay. Half. And promise to pay the rest later but cash flow was a bit tight at present….Meanwhile, would we please urgently supply this, that and the other. By now I knew it was a waste of time to suggest to the big boss that we said fine, cough up what you owe and then you get the new stuff. But the big boss was not up for that. They were a good customer and he had an excellent relationship with the CEO and the CFO.

          And so it went on. Even taking into account the delays, the retrospective discounts and the great amount of opportunity cost expended by me and my staff forlornly chasing debts, I calculated that we were still making a profit on them, though not much. We were always carrying a credit cost and a credit risk, of course.

          And then after debts started aging from 9 months overdue to 12 months overdue to 15 months overdue, they decided to go bust owing about a year and a half’s worth of sales. Then the account was not so profitable. Indeed, the whole of the last ten years of profits on that account disappeared into loss.

          Fortunately for me, I had written enough memos to the Big Boss saying that it was crazy to deal with these people like this, that the Even Bigger Boss fired the Big Boss, not me.

          Now everyone in business faces customers (and suppliers) who jerk them around. You have to make a judgement. But when the judgement is “nothing these guys say is to be believed” then you’re going to need to move to cash in advance. Otherwise all your little charts about how profitable this account is are just wishful thinking.

  8. Congress wants (as expressed through legislative action) the Executive to have a certain power.

    The President agrees (as expressed through legislative action) that he should have that power.

    The President exercises that authority.

    Congress fails (through legislative inaction) to withdraw this authority from the President.

    Why is it the Court’s place to decide that Congress’s decision to cede authority to the President is wrong? The result is handing power to a group in Congress that is unable to resolve their political dilemma through the normal Constitutional role (legislation).

    I’ll grant that the current Congress would likely also be unable to enact these tariffs legislatively, but Congress has already decided such decision making should be left to the President.

    1. Because the Constitution does not merely assign taxation to Congress. Unlike any other legislative power, it is particular about which house must originate revenue bills. One could argue this particularity limits its delegability.

      1. Then the court would have to get a lot more serious about its origination clause jurisprudence. Although Justice Kavenaugh might actually be one of few jurists actually interested in the issue.

      2. Unlike any other legislative power, it is particular about which house must originate revenue bills. One could argue this particularity limits its delegability.

        OK one, lay your cards down. Let’s see that argument.

        1. Well, one could argue that this provision implements the principle of “no taxation without representation.” The Framers wanted a representative body to make taxation decisions. While the Senate today is directly elected, the President is not. He is elected by a small body of electors, who are in turn appointed in the manner directed by state legislatures. Unlike the House of Representatives, what ordinary citizens think or want need have no say in a President’s selection.

          1. one could argue that this provision implements the principle of “no taxation without representation.”

            No one couldn’t, since it is about origination not decision. Even if the Constitution reserved the originartion of revenue Bills to the Senate, the House would still have to approve them.

            But even granting your proposition, for the sake of argument, it connects a motive for the origination clause with something else (non delegation of revenue raising) that might be desired by someone with that motive.

            “SIr, here’s is your creme brulee.”
            “But I didn’t order a creme brulee”
            “No Sir, but we divined that your order of a strawberry pavlova indicated that you were hankering after something sweet. Ths creme brulee is something sweet.”

            There are many possible hypothetical Constitutional provisions that might be desired by folk who think the elected House should be making the tax decisions (such as the British rule that the Upper House may not delay a money Bill for more than 30 days.) But the fact that such hypothetical provisions might well be motivated by similar feelings as thse which may have motivated the Origination Clause does not make them any less hypothetical.

        2. Lee, all the “sole power” delegations in the Constitution are of a kind. Each allows the party to whom it is delegated—as was once said in Britain—”to climb into the lap of the sovereign,” and there exercise (within the defined scope of each such delegation) the unconstrained power of sovereignty. Thus, within each such defined and constrained scope, normally limited, checked, and balanced, government is suspended, and a specified division of government is enabled to act instead with greater power, as if sovereign itself.

          Thus, the pardon power makes the president sovereign and unquestionable on final dispositions of convictions under the criminal justice system. Likewise, the House and Senate each enjoy specific sovereign and unquestionable constitutive powers, whenever they undertake to remove a sitting president by impeachment.

          What can never properly happen in America’s system, is re-delegation of sovereign power by the party which initially got it from the sovereign. Only the sovereign People hold that power—the power to delegate their own authority. They have not given that up.

          And by the way, the People would violate a basic principle of sovereignty if they did permit successive delegations. Sovereignty must be unitary, or its existence falls into question. A division of government which purported to re-delegate a “sole power,” would thereby create a rival to the sovereign, and potentially call into question whether the sovereign still ruled. Stable government become notably less so while stuff like that is happening.

          At first glance, this kind of consideration may seem almost uselessly theoretical, but it is not. Questions about practical problems of governance can surprisingly often be simplified and clarified by bringing the usually-ignored question of sovereignty back into view.

          1. Admirably extensive but still misses the point. There may be a non delegation doctrine, and if there isn’t maybe there ought to be.

            The question is – what has it got to do with the origination clause ?

            Answer – not a damn thing. The origination clause says nothing, implies nothing, does nothing about delegation. Even if you’re in the habit of scrabbling in penumbral regions it still says nothing, implies nothing and does nothing. For if there is a non delegation doctrine in re taxes, it applies equally to the Senate amendments to the original Bill as it applies to the original provisions in the Bill.

            1. Lee, whatever the case may be with regard to the senate, in the American system of government it is not possible validly to delegate to the president a power to raise revenue. Doing it that way goes a long step farther than muddling things between branches of congress, and instead challenges separation of powers.

              1. 1. So are we finally agreed that this has got zip to do with the Origination Clause ?

                2. So moving on to non delegation – which is strictly obiter since I make no claim whatever to expertise on the matter :

                in the American system of government it is not possible validly to delegate to the president a power to raise revenue

                Well, so you say, but there’s nothing in the Constitution that says that in actual words.

                What Article 1 does is grant a power to Congress to “lay and collect taxes…” etc. There is no corresponding power in Article 2 granting a power to the President to lay and collect taxes.

                But that doesn’t say how much of its power to lay and collect taxes the Congress may delegate to the President. (Or to the Trump Organisation for that matter.) As it happens, the Congress delegates pretty much the entirety of the tax collection power to the Executive branch, even granting the Treasury power to make regulations concerning, inter alia, collection.

                Consequently while you may huff and puff about non delegation, the Constitution says nothing about it. Whatever constitutional limits there may be, they have to be inferred. So it is not at all clear what the limits are re tax delegation – hence the unanimous decision of the International Trade court that s232 is fine, and the expostulations by outraged posters here saying it’s not fine.

                En passant, I’ll mention that after the tax power, the very next power granted to the Congress by Article 1 is the power “to borrow money on the credit of the United States.” Now we do hear about “raising the debt limit” from time to time, but we don’t hear much about Congress debating what interest rate to issue debt at, for what term, and when to make the issuance. That’s all delegated to the Treasury.

                So if we’re to identify a substantive non delegation principle in the Constitution, it needs to cover, on a coherent basis, the limits of delegation on all the powers. In the text there’s no significant distinction between the tax power and the borrowing power.

    2. Why is it the Court’s place to decide that Congress’s decision to cede authority to the President is wrong?

      Just because a body has a certain power does not mean that it has the right to assign that power to others. Just as a judge could not say, “Oh, you know, I don’t feel like deciding cases anymore. Prosecutor, you just go ahead and issue the verdict in this case,” Congress cannot say, “Oh, we don’t feel like deciding when to impose a tariff. President, you just go ahead and impose them when you think it’s a good idea.”

      1. Just because a body has a certain power does not mean that it has the right to assign that power to others.

        But why not? There has to be a reason beyond “it cannot be done.” Congress delegates a lot of power to the Executive and it isn’t unconstitutional.

        For example, judges cannot delegate the power to issue verdicts to a prosecutor because it would imperil the neutrality of the judicial system. We like a neutral judicial system, so you can’t do that.

        1. I think that’s a good point.

          There’s obviously a great deal of delegating “within branch” particularly in the Executive branch, but I imagine the concern is cross branch delegation and the separation of powers.

          So for example when the judiciary doesn’t like the districts that a legislature has drawn it often decides it’s going to draw those districts itself, which isn’t even delegation, it’s arrogation. The courts have no difficulty leaping in and crafting their own solutions to the failings (as found by the courts) of the other two branches. But the separation of powers huffing and puffing goes mute at this point.

          It seems to me that the separation of powers is a good thing, but precisely what its borders ought to be is not a straightforward question. Though more straightforward than honestly identifying what the constitutionally defined borders are.

          1. The courts have no difficulty leaping in and crafting their own solutions to the failings (as found by the courts) of the other two branches.

            That’s Marbury in a nutshell. The court didn’t think it had enough power, so it seized power form the other branches.

            There’s a lot of discussion that could be had on the meta issue of whether the Court should be powerful enough to check the other two branches, or whether the Court should be weak and allow the political branches check one another.

            I think the meta decision was the correct one at the time, but the Court’s immunity from the political whims of the population combined with a virtually unchecked power is starting to tip the scales in the other direction as the Court becomes political itself.

          2. Lee, the absolutely most-straightforward manifestation of separation of powers in the whole American system is the one which denies a power to raise revenue to the executive, in favor of the congress.

            1. Well even that is an exaggeration. Sure it’s Congress that is awarded the power to lay and collect taxes, not the President. But only by way of Bills that may be vetoed by….the President !

              In real life it is the President who puts forward his grand plan for taxes, before each Chamber of Congress rips it to shreds. A Tax Bill is invariably, and inevitably, a bastard child of the Executive Branch and the Legislative Branch.

              And you can’t even say that that’s just the practical reality while the pure clear pages of the Constitution say it’s a Congressional power only. Cos it ain’t. That same pure clear Constitution says the President can stick his muddy boots right into Congress’s taxing power.

              The pure theoretical separation of powers is a cartoon by de Tocqueville. The actual US Constitution is not so tidy.

  9. I find myself astonished that this hasn’t been challenged in court, both as exceeding the statutory authority delegated by Congress, and as exceeding Congress’ constitutional authority to delegate. A tariff is a tax. The Constitution is particular about where revenue bills must originate. The power to regulate, even prohibit, is not the same as the power to tax. A challenge might lose in court. But I’m astonished no-one’s tried.

    1. RaderY, I agree with what you say.

      To take it a step farther, everyone should note that the power to originate revenue bills is one of the relatively few “sole power,” clauses in the Constitution. Taking them together, it is possible to see that each such sole power granted to a division of government fills the same unusual kind of need—the need at times to empower a division of government to exercise directly the People’s sovereign power—power which the People otherwise reserve for themselves alone. Given that, it is not within the power of Congress to give the People’s own delegated sole power up to the President. That would contradict the “sole power” requirement set forth in the Constitution. Delegating sovereign power must be done by the People themselves. It cannot be re-delegated by Congress, because Congress is not itself sovereign, nor is any other part of government. That is at least one of the arguments that ought to be taken to SCOTUS.

      1. I agree. My only concern here is that ALL Presidents be denied this sort of power going forward, not just Trump.

        I absolutely agree that Trump, as President, exercises far too much power. But that’s because ALL Presidents exercise far too much power. I’d rather leverage the objection to Trump exercising it to get a reduction of Presidential power, period, and that requires not tolerating mere TrumpLaw, meant to go away as soon as somebody else, (presumably a Democrat) occupies the office.

        1. Brett, along with the rest of us, maybe you are going to have to take your chances about the future.

          1. Brett’s managed to suss out sufficient bad faith in everyone who disagrees with him that he can justify just about any inconsistency in his own principles.

          2. Take our chances, meaning accept executive abuse from the next Democrap? How about not and say we did?

  10. “There may be good policy in retaliations of this kind, when there is a probability that they will procure the repeal of the high duties or prohibitions complained of. The recovery of a great foreign market will generally more than compensate the transitory inconveniency of paying dearer during a short time for some sorts of goods. To judge whether such retaliations are likely to produce such an effect, does not, perhaps, belong so much to the science of a legislator, whose deliberations ought to be governed by general principles, which are always the same, as to the skill of that insidious and crafty animal vulgarly called a statesman or politician, whose councils are directed by the momentary fluctuations of affairs.”

    Adam Smith

    1. Well done !

      Smith is of course still making an economic case. But through the red mist, Somin doesn’t really appreciate that Trump’s trade policy is not all about economics. It’s also about national security.

      The object is to force China to change its foreign policy, in the interests of the United States, by forcing it to acknowledge its economic dependence on the US. Trump – correctly – thinks that China is much more dependent on the the US, than vice versa.

      China is obviously trying to sit it out till January 2021 in the hope that they will get a US President who will go back to the old policy. But I suspect that China’s (a) hostility and (b) economic vulnerability has now been spotted by plenty of Democrat foreign policy folk, so even if Trump loses in 2020, he will have shifted the Overton Window in foreign policy circles towards a harder line towards China on trade, IP theft and – what they can’t stand – on enforcement of agreements.

      The blatherings about free trade from Somin et al not only miss Smith’s point about the tactical use of tariffs for economic ends, they also miss the fact that trade policy is also part of foreign policy.

      Weakening your own economy is not necessarily a bad thing if you weaken your enemy’s economy ten times as much. This is why we didn’t sell submarines to the Germans during 1941-45, despite the hit to US submarine exporters.

      1. Lee, how does any of that affect the argument that a tariff raises revenue by taxing Americans, and revenue measures must originate in the House of Representatives?

        1. I don’t claim to be an expert, and no doubt a lawyer with access to all the relevant cittions can correct me, but the legal provision under which the tariffs are levied appears to be s232 of the Trade Expansion Act of 1962, which according to Wikipedia (boo hiss) did originate as a Bill in the House. So I’m not seeing an Origination Clause problem.

          But anyway I wasn’t intending to join battle on the law, merely on the policy. There’s more to trade than economics.

          1. It’s the difference between a revenue measure originating in the House, and the delegation of the power to make revenue decisions originating there.

            But the origination clause is as dead as non-delegation doctrine, I wouldn’t count on the Supreme court reviving either, too much of our present government structure is based on these sorts of constitutional evasions.

            Few of the justices have the devotion to principle necessary to vote to overturn everything that way just because it would be the right thing to do.

            1. Brett, all it would take to revive the origination clause full-strength is a House of Representatives determined to do it. They need not let any revenue bill they did not author pass the House. The power to say, “Do this, or you will have money for little else,” is an imposing power indeed.

              Problem is, that is a power so great—as it was meant to be—that in principle it could hold even a would-be tyrant in check. What the principle glosses over is what the would-be tyrant might attempt in the meantime. Some Americans have begun publishing worried comments about that, and with growing frequency.

              1. There is no point in attempting to “revive the origination clause.” It is a lame half-ass power that is irrelevant In the scenario you describe – eg the Senate originating a revenue Bill that the House would be happy to pass but for it having originated in the Senate. The House has a simple remedy.

                It refuses to pass the Senate Bill and then originates a new one of its own, in identical terms. Bill now gets passed and the House’s honor is preserved. Big whoop.

                The origination clause is simply a translation of the Westminster practice to the United States, but where the translation has not “taken” because the systems are dfferent.

                In particular, the Westminster convention by the late 18th Century, was that the House of Lords could neither originate, nor amend, a money Bill. It had the power to reject, but not to amend. The Senate is in a much stronger position since it can propose amendments that may be acceptable to enough House members to get through.

              2. You’re just echoing the usual reasoning: The House could stop this if they wanted, and the courts won’t bother to force Congress to actually comply with the Constitution if everybody in the government is ok with the government violating it.

                The basis of this is the idea that we’re not actually entitled to have the government obey the Constitution, if the government itself doesn’t mind violating it.

                1. If you’re talking to me, I disagree. I’m confident that the (current) courts would enforce the Origination Clause against the government if a taxpayer objected to paying tax under a Senate originated Bill.

                  But – taking the Obamacare example – I’m also confident that neither conservative Justices adopting a formalist approach (ie that Bill, even though gutted by Senate amendments, did in fact originate in the House) nor liberal Justices (let’s wing it on our notions of purpose and good policy – and here there’s not much of a purpose and not much of a good policy to be found) would impose a “sham” doctrine on a Bill originating in the House but amended to death in the Senate. Both on formalist and on loosey goosey pass the weed man arguments, there’s no flouting of the Origination Clause there.

                  But if there was a clear case of a Senate originated Bill raising revenue, I think the courts would uphold the Origination Clause, saving special circumstances. Thse special circumstances being a liberal majority on the Court and inconvenience to liberal policy should the Bill be struck down.

                  1. I agree of course that if the courts failed to apply the Origination Clause when it applies that would be a bad thing, and to be deplored.

                    However the Origination Clause itself is such a dumb ass clause that it would come in about number 838 on my list of Constitutional hills to die on. I’ll amble over to that hill once I’ve dealt with Free Speech, the Right to Bear Arms, Takings and so on.

            2. It’s the difference between a revenue measure originating in the House, and the delegation of the power to make revenue decisions originating there.

              Yes, I agree that’s the difference. What I’m strugging with is the suggestion that origination has anything to do with delegation. Note that for all the repetitions of “revenue measure” by various posters, the Consititution has nothing to say about “revenue measures.” The Constitution mentions “Bills for raising revenue.”

              The distinction is important since if posters are just using “revenue measures” to refer to “Bills for raising revenue” there’s nothing to discuss – since, as I mentioned, the Bill giving the President powers to change tariffs did originate in the House. If however they are using “revenue measures” in a different sense, eg encompassing a President’s decision to raise tariffs under powers delegated by a previously enacted law, then the Origination Clause has nothing to say about such a “revenue measure.” (Unless the previously enacted law is a “Bill to raise revenue” that did not originate in the House.)

              Since the Senate can put its own amendments forward on any revenue Bill originating in the House, no particular revenue measure (in the sense of something smaller than a whole Bill) has to originate in the House. Consequently if the non delegation doctrine requires that Congress not make revenue raising laws that delegate to the President the power to twiddle the tax rates etc, that applies just as much to Senate originated revenue raising amendments as to the original House Bill (as well as House originated amendments to it.)

              The point is simply that there is no legal, logical, or even whimsical connection whatever between the Origination Clause and the non delegation doctrine. They do not connect at any point.

              All I can see is a bit of light sophistry. Which is :

              The President using his powers to fiddle with taxes under a law passed by Congress giving him those powers is a “revenue measure” and “revenue measures” must originate in the House of Representatives not the White House. In which “revenue measure” has morphed from “some action that has raised revenue” into “Bill to raise revenue” in mid sentence.

              It may be that the Constitution bars Congress from making laws that allow the President delegated power to raise revenue under them. Maybe it doesn’t. I have no dog in that fight. But if it does bar this, it does not do so in the Origination Clause. To argue that that is where the Constitutional problem is is just throwing spaghetti at the wall.

      2. Lee Moore

        I agree with you. Adam Smith agrees with you too.

        “It will generally be advantageous to lay some burden upon foreign industry, for the encouragement of domestic industry, when some particular sort of industry is necessary for the defence of the country. The defense of Great Britain, for example, depends very much upon the number of its sailors and shipping. Defense is of much more importance than opulence.”

    2. You continue to cite Smith as pro trade war. He was not.

      And even if he were, he’s not going to be a great authority on modern global markets.

      1. I don’t know that Adam Smith is “pro trade war” but he acknowledged a number of sensible uses for tariffs and other measures of economic protection. More to the point, he explained why tariffs should be set by a “statesman or politician, whose councils are directed by the momentary fluctuations of affairs.” That was what Somin’s headline was about.

    3. 1) Being in favor of favor of free markets is not a cult, so “Adam Smith says so” is not convincing to free marketers the way “Jesus says so” is to Christians.

      2) The quote is out of context. He says that it “may” be good, but then goes on to explain in subsequent paragraphs why it isn’t good policy.

      3) Trump is lying to the ignorant/gullible when he pretends that he’s imposing tariffs to get something from China. He’s doing so because he doesn’t like trade. He doesn’t understand that trade is win-win.

      1. 1) Using Smith as a reference is using his logic.

        2) You miss the key points in the later paragraphs. For example “here may be good policy in retaliations of this kind, when there is a probability that they will procure the repeal of the high duties or prohibitions complained of.”

        By having the President do it (rather than via Congress), then the probability tariffs can be reversed is much higher.

        3) “He (Trump) doesn’t like trade”? Seriously? Trump is many things, but a man who doesn’t like trade? With his history in business? That boggles the mind that you would think that.

        1. a man who doesn’t like trade? With his history in business? That boggles the mind that you would think that.

          Why? His history in business suggests that he regards trade as zero-sum, which it isn’t. And of course there is no particular reason to think that he is a particularly clever businessman, especially since he refuses to back up his claims with any evidence. He got a huge head start from his father, and managed, maybe, to do as well as if he’d put in Treasury bonds.

          He plainly doesn’t like foreign trade, and plainly doesn’t understand it. He has repeatedly suggested that the US is “losing” because we have a trade deficit. That’s nonsense.

          He imposed tariffs on Canadian steel as a “national security” measure.

          He thinks the tariffs are being paid by China.

          On this, as on so many other things, the man is an ignoramus. Even imagining that he has some sort of rational strategy in mind is a mistake.

          1. OK, let’s start with this. The initial claim was that Trump “didn’t like trade”. Which was absurd, and even you couldn’t really defend the claim, switching gears to Trump not liking “foreign trade,” as well as comments about his acumen.

            Which is also absurd. The man has business dealings worldwide. You don’t not like “Foreign trade” and simultaneously have properties in 10 different countries.

            Now, you can argue he doesn’t properly understand trade, or that he’s a poor businessman. But “Not liking it”? That’s absurd.

      2. David

        Adam Smith just “said it better.” Isn’t that obvious? Do you acknowledge that Adam Smith says tariffs should be set by a statesman according to the “momentary fluctuations of affairs”?

  11. Like Prof Somin, I love china constantly taking advantage of us unpunished because we need our cheap shortterm trinkets and we’re so afraid of them we’re just going to let the inevitable get worse. Any interruption where we stop being a doormat and start standing up for ourselves cannot be tolerated. Who’s with me?

  12. “…I agree with Hillyer on both the legislative and constitutional points. I am not optimistic, however, that Congress will actually pass a bill to repeal Section 232 anytime soon, or even significantly narrow its scope….”

    Well, I think we all agree that Moscow Mitch would be happy to pass such legislation the first day after a Democrat were to win a presidential election. (Whether a Dem-led House of Rep would also support a Senate Bill is far less clear.)

  13. I find it nearly incomprehensible that a court would look at the statute, see that it has an intelligible principle limiting presidential authority, but decline to make any finding on whether the president has acted within the limits of that authority, saying that the statute fails to give them the authority to do so.

    That is what the courts are for! If you don’t step in now, when would you step in?

  14. I realize it would be hard to get enough congresspersons to approve a law rescinding that power, but what about passing a law to widen standing for people to challenge the power?

    I can imagine enough protectionist friendly politicians being willing to sign on an expanded standing requirement. I base that on my believe that most politicians’ protectionist leanings are probably less than ideological commitments and more about appeasing protection-seeking constituents. A protectionist president can try to impose tariffs and then can blame the courts when that challenge is overturned. That president can claim to have fulfilled her part of the bargain and still get the kudos from her protectionist constituency.

    (I’m assuming that Congress, and legislatures in general, have the authority widen standing requirements. Maybe I’m wrong. I’m not a lawyer and don’t know whether and how statutes can influence standing.)

    1. Gabriel…I don’t think that is a good idea. In fact, I think it would really suck as taxpayers. We (taxpayers) would have to respond (i.e. spend money on hiring government lawyers) continual lawsuits from parties affected by standing. No thanks.

      Your ‘standing’ suggestion, to me, would make for a lot more problems.

  15. Tariffs, among decent, civilized nations, are always beneficial to all parties.
    But China is a totalitarian state, allowed into the WTO and given MFN status 20 years ago, on the failed notion that prosperity would temper its bloodthirsty aggression. That was wrong.
    Today we finally have a president who will kick the props out from under Xi. Thank God and not a moment too soon.
    Far better economic conflict that outright war.
    We need stall Xi a few years for Mark Steyn’s prediction to become true: “China will grow old before it gets rich.”

    1. China has been full of bloodthirsty aggression for the last 20 years?! Because I see that golden straitjacket working pretty well for that period.
      True, they didn’t collapse or moderate as much as the USSR did, but lets not make them worse villains than they are.

      1. Let’s not make them lesser villains than they are. They’re pretty awful, they’ve just got better press thanks to having penetrated so many of our institutions.

        The USSR, too, had far better press than it merited until their checks started bouncing.

        1. My main point is ‘bloodthirsty aggression’ is some lame-ass saber rattling in service of Trump being the only strong badass out there who can see it.

        2. thanks to having penetrated so many of our institutions

          What institutions have they penetrated? Evidence, please.

          1. Wikipedia: “Chinese Espionage in the United States”

            1. This is a dangerous attitude.

              The US government is racing around like a few anecdotes make a pervasive issue. The collateral damage from the overreaction could be pretty profound.

              1. It’s a dangerous attitude to see what’s happening and respond to it?

                $500 Billion a year in IP theft is real money. And that’s before all the other issues.

                1. I mean, you have the driver for one of the senior Democratic Members of Congress being a Chinese spy…

                  1. There was a recruitment attempt, the FBI caught it, and the individual was let go.
                    Sounds like the system is working fine without the need for bonus paranoia.

                    1. Good God, Sarcastro, that’s a dishonest way to describe it. The driver was absolutely working as a spy for the Chinese. He got away with just being fired because he was obtaining political intelligence for them, not classified documents, so didn’t technically violate any federal law.

                      It was still spying; He worked for Feinstein and then relayed to his handlers what was going on in her office.

                    2. Umm… you’re forgetting the 20 years of service the Driver had, and the loads of intel the driver passed on during that time. But hey, leaving out details like that works for the NY Times.

                2. IP theft isn’t espionage – stick to a thesis.

                  And try using real numbers.

                  1. Espionage includes Corporate espionage, genius. Where….. IP is stolen.

                    And those are real numbers. Based on the The United States Trade Representative, and the 2017 report from the Commission on the Theft of American Intellectual Property. It’s massive. Truly massive.

            2. This is a dangerous attitude. The US government is racing around like a few anecdotes make a pervasive issue. The collateral damage from the overreaction could be pretty profound.

              Well, Sarcastro, old fruit, no one can accuse you of lacking a sense of humor 🙂

              We’ve spent three solid years on Russian anecdotes. Betcha there are fifty times more China anecdotes to be had than Russian ones. Hell, Hunter Biden on his own can rustle up some meatier Chinese anecdotes than all of Manafort and Cos feeble Russian ones.

              1. McCarthyism being cool and good might not be a great hill for you to die on.

                The difference is that we have actual intelligence determinations about Russian governmental actions, not anecdotes about Russian nationals.
                Also no one is advocating that we shut down all Russians who want to come to the US as immigrants, students, etc.

                1. Good one.

                  Joe McCarthy – “Watch out for the Russkies !”

                  Joe Sarcastro – “What a jerk. But…Watch out for the Russkies !”

                  1. McCarthyism wasn’t just ‘watch out for the Russkies’ it was a reign of paranoia that persecuted innocents and turned out to be based on nothing – McCarthy his supposed list up.

                    You’re into thoughtcrime? You’re a pretty awful small government guy if you think that was a time of America greatness.

                    1. “turned out to be based on nothing”

                      Like your current obsession with Putin and Russia.

                    2. Unlike liberals in McCarthy era, this President tweets his admissions of what he’s done pretty regularly. Also there was a report, which I guess you’ve forgotten about.

                    3. I’m guessing you’re unfamiliar with what we learned while the KGB archives were opened during Yeltsin’s time in office?

                      Declassified Documents Reveal KGB Spies in the U.S.

                      It’s quite possible that McCarthy’s list was a fake, but he wasn’t wrong about Washington being lousy with Soviet moles.

                      As it is with Chinese moles today.

                    4. Oh, I know the Verona Papers. Has nothing to do with how McCarthy had no sources and was making things up. ‘He was lying, but it was true!’ is not really going to do much for your argument

                      The paranoia of the era ruined a lot of lives unnecessarily, and created general anxiety and private persecution without reason. The censorship alone makes it not something anyone should look to as a model for today.

                    5. In case you cannot tell, I did a paper on the era in the context of scientific research. It was a horrorshow, and anyone trying to argue the McCarthy HUAC era was the correct impulse is either ignorant or a fascist.

                    6. You’re into thoughtcrime? You’re a pretty awful small government guy if you think that was a time of America greatness.


                      Sarcastro : let’ not chase our tails with a China panic
                      moi : that’s pretty rich after three years of Russia panic
                      Sarcastro : that was different and justified. And you’re Joe McCarthy
                      moi : ” Huh ? You’re the one supporting the Russia panic
                      Sarcastro : So you support McCarthy AND you’re into thought crime !

                      Lay off the booze.

  16. Ilya: I’m wondering if you could expand on your argument regarding what, if any, role the President and/or Federal Government should have in imposing tariffs. What do you believe would be a better approach towards the systematic state-sponsored theft of IP by foreign entities? A primary responsibility of our government is the protection of property rights, so surely it is appropriate for the federal government to take some action here. But if we take tariffs, sanctions, and other forms of economic retaliation off the table, what tools are left to us as deterrents against such violations of our citizens rights? What other non-military forms of leverage do we have? All things considered, might granting the President significant powers in such matters ultimately be the lesser evil?

    1. Why can’t Congress use tariffs to address that issue instead of the President?

      The fact that the tariffs aren’t targeted to the industrial bad actors or conditional on the IP issue, and Trump’s rhetoric is much more general than being about IP, show that this is more about Trump’s dumb idea that trade wars are easy and good.

      Hammers do not make good scalpels.

      1. But I think Ilya wants to go beyond reserving these powers to Congress. Here he states his opinion that the Federal Government has too much power to restrict international trade, without distinguishing between the President and Congress:
        So I’d like him to clarify how he thinks this should work.

  17. It’s perfectly reasonable that commentators on a Conspiracy post would discuss the underlying policy. Are Trump’s tariffs a good idea or not? But for purposes of this discussion I’m staying out of it. They might or might not be a good idea. The constitutional question is, who gets to decide?

  18. Did the pieces of legislation that Trump is claiming his power from originate in the House? Tariffs are taxes, i.e. revenue and all revenue bills must start in the House. Just an idea …

    1. Yes it did. Or so wikipedia claims :


      It would be pretty surprising if it hadn’t since while congresscritturs may be venal, pompous, absurd, evil-smelling, they do have staff who have a reasonable understanding of the basic rules. And a Bill about tariffs is pretty obviously about taxes.

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