The Volokh Conspiracy
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How Trump's Imposition of Massive Tariffs is Repeating the "Ship Money" Abuses of King Charles I
Like King Charles, he is abusing emergency powers to impose taxes without legislative authorization.
Yesterday, there were massive nationwide "No Kings" protests against Donald Trump and his authoritarian tendencies. Like most political slogans, "No Kings" is an oversimplification. But it is in fact true that Trump is repeating many of the abuses of the British monarchs, which precipitated the English Civil War, and eventually the American Revolution.
The most obvious parallel is his use of detention, deportation, and imprisonment without due process, including targeting many legal immigrants who were never convicted of any crime. Similar practices by the British were among the major grievances that led to the American Revolution. They were also among the abuses of the Stuart monarchs of the 17th century that eventually led the British to curb royal authority.
A less widely recognized parallel between the Stuarts and Trump is that Trump is imitating King Charles in imposing taxes without legislative authorization, and in the process trying to convert an emergency power into a tool that the executive can deploy anytime he wants. As I have explained previously, Trump is trying to use the the International Emergency Economic Powers Act of 1977 (IEEPA) - a relatively narrow delegation of emergency powers - to wage a massive trade war over issues that are in no way an emergency, and impose up to $2.2 trillion in new taxes on Americans. Two federal courts have ruled (including one in a case brought by the Liberty Justice Center and myself) that IEEPA grants no such authority and it would be unconstitutional if it did, though the litigation continues on appeal.
This situation is eerily similar to King Charles I's abuse imposition of "Ship Money" taxes, which helped precipitate the English Civil War. The Britannica website summarizes the relevant history:
Ship money… [was] a nonparliamentary tax first levied in medieval times by the English crown on coastal cities and counties for naval defense in time of war. It required those being taxed to furnish a certain number of warships or to pay the ships' equivalent in money. Its revival and its enforcement as a general tax by Charles I aroused widespread opposition and added to the discontent leading to the English Civil Wars.
After bitter constitutional disputes, Charles dismissed Parliament in 1629 and began 11 years of personal rule; during this time, deprived of parliamentary sources of revenue, he was forced to employ ship money as a financial expedient. The first of six annual writs appeared in October 1634 and differed from traditional levies in that it was based on the possibility of war rather than immediate national emergency. The writ of the following year increased the imposition and extended it to inland towns. The issue of a third writ in 1636 made it evident that Charles intended ship money as a permanent and general form of taxation. Each succeeding writ aroused greater popular discontent and opposition, and upon the issue of the third writ John Hampden, a prominent parliamentarian, refused payment.
His case, brought before the Court of Exchequer in 1637, lasted six months. The judges, headed by Sir John Finch (later Baron Finch), decided 7 to 5 in favour of the crown; but the highhanded opinions of Finch provoked widespread distrust of Charles's courts, whereas the narrowness of the decision encouraged further resistance…. In 1641, by an act of the Long Parliament, ship money was declared illegal.
Note the many parallels to our present situation: Like Trump, Charles I imposed massive taxes without congressional authorization, attempted to convert a narrow emergency power into "a permanent and general form of taxation," and provoked widespread resistance. And, like Trump, Charles I claimed he had an absolute, unreviewable prerogative to determine whether an emergency justifying the use of extraordinary authority existed. Trump claims he alone gets to decide whether there is an "emergency" and an "unusual and extraordinary threat" of the kind needed to invoke IEEPA. Similarly, King Charles I claimed he alone was entitled to determine whether there was threat of invasion or naval attack of the kind that could justify imposition of ship money.
Reading Henry Parker's 1640 Leveller Tract against Ship Money, "The Case of Shipmoney Briefly Discoursed," gives me a strong sense of de ja vu. Parker was a leading contemporary critic of royal absolutism and defender of civil liberties and parliamentary rights.
Parker notes that "[t]he Quaere then is, whether the King bee sole Judge of the danger, and of the remedy, or rather whether he be so sole Judge, that his meere affirmation and notification of a danger foreseene by him at a distance, or pretended only to be foreseene, shall be so unquestionable, that he may charge the Kingdome thereupon at his discretion, though they assent not, nor apprehend the danger as it is forewarned." Trump, too, is claiming to be the "sole Judge of the danger" and asserting that his "mere affirmation" is enough to impose massive taxes any time he wants.
Parker also emphasized "that in nature there is more favour due to the liberty of the subject, than to the Prerogative of the King, since the one is ordained only for the preservation of the other; and then to solve these knots, our dispute must be, what prerogative the people's good and profit will beare, not what liberty the King's absolutenes or prerogative may admit." He also notes that "in this dispute it is more just that wee appeale to written lawes, than to the breasts of Kings themselves." In our situation, too, the liberty of the people must take precedence over the asserted prerogatives of the executive, and the latter must be bound by written law. The people must be free to trade with foreign nations, and free of arbitrary detention, unless, at the very least, the executive can prove by overwhelming evidence there is a genuine emergency in which written law authorizes him to use extraordinary power.
Parker further emphasizes that "questionlesse sole judgement in matters of State, does no otherwise belong to the King, than in matters of Law, or points of Theology. Besides, as sole judgement is here ascribed to the King, hee may affirme dangers to be foreseene when he will, and of what nature he will." The same is true for us. If the president can "affirme dangers to be foreseene when he will, and of what nature he will," and use them as pretexts to wield vast emergency powers, there is no end to the abuses of power that are likely to occur.
Parker also warns against simply relying on the King's word about there being a genuine emergency:
It is ridiculous also to alledge… that it is contrary to presumption of Law to suspect falsity in the King…. Nay there is nothing more knowne, or universally assented to than this, that Kings may be bad; and it is more probable and naturall that evill may bee expected from good Princes, than good from bad. Wherefore since it is all one to the State, whether evill proceed from the King mediately or immediately, out of malice, or ignorance. And since wee know that of all kindes of government Monarchicall is the worst, when the Scepter is weilded by an unjust or unskilfull Prince, though it bee the best, when such Princes as are not seduceable (a thing most rare) reigne, it will bee great discretion in us not to desert our right in those Lawes which regulate and confine Monarchy, meerly out of Law-presumption, if wee must presume well of our Princes, to what purpose are Lawes made?
The parallel to our own situation is obvious. Presidents too may be "bad," and they too often try to exploit real and imagined emergencies to make dangerous power grabs. Politicians, like princes, are rarely immune to temptation and "seduction," and therefore - for us, too 'it will bee great discretion in us not to desert our right in those Lawes which regulate and confine" the executive power.
The American Founding Fathers, of course, were greatly influenced by the British experience, and shared many of the concerns of Parker and other English opponents of royal absolutism. For that reason, they made sure the power to impose taxes (including tariffs) was given to the legislature, and confined emergency powers to narrow circumstances (e.g. - the writ of habeas corpus can only be suspended "when in Cases of Rebellion or Invasion the public Safety may require it" and "invasion" was understood narrowly as a military attack, not cross-border smuggling or illegal migration). Nor did they trust to the good will and discernment of the executive to decide for himself when extraordinary powers should be wielded. As James Madison (as if echoing Henry Parker) famously warned, "Enlightened statesmen will not always be at the helm." At least for originalist judges, this history - and its influence on the Founders - should also bolster the legal case against Trump's tariffs.
The British eventually defeated Charles I and curbed their monarchs' absolutist pretensions, albeit only after much oppression and bloodshed. The Founding Fathers learned from that awful experience. We would do well to learn from it, as well, and act accordingly.
