OPINION:
“No doctrine involving more pernicious consequences was ever invented by the wit of man than that any of [the Constitution’s] provisions can be suspended during any of the great exigencies of government.” — Ex Parte Milligan, Supreme Court of the United States, 1866.
President Donald Trump recently imposed and then rescinded a national sales tax on nearly all goods emanating from outside the United States to be paid by the ultimate consumer. Thus, before his recission, if you bought a Ford pickup truck in the U.S., because it contains parts from Canada, Mexico and South Korea, according to The Wall Street Journal, it would cost you an additional $3,000. The $3,000 was initially paid piecemeal by the foreign exporters of the parts to the U.S. Treasury as a condition for the parts entering the United States. When you pay the local Ford dealer, you are actually reimbursing the foreign exporters.
The same is the case for a toaster made in China. Last week, that toaster cost $25. Since tariffs on Chinese goods were increased to 125%, next week, it will cost $150.00. If your budget for the toaster is $25 to $30, you probably won’t spend $150. If you do, you will be reimbursing the Chinese exporter for his 150% tariff that he has already paid to the Treasury. Or, you will search in vain for an American-made toaster.
These sales taxes were added to the price of the Ford pickup and the toaster not by an act of Congress but by an act of the president alone. Can the president alone impose taxes on the American people? The short answer is no.
Here is the backstory.
In 1977, Congress enacted the International Economic Emergency Powers Act. This law permitted the president to impose tariffs on goods from outside the U.S. in the case of an economic emergency. The statute defined an emergency as a sudden and unexpected event adversely affecting U.S. national security or economic prosperity.
Cognizant of the “emergency” trigger for the exercise of this unique power, the Trump administration initially offered that the introduction of fentanyl into the U.S. by foreign people was an emergency. When advisers told the president that the tariffs he contemplated would affect dozens of foreign countries producing hundreds of goods and services that have no connection to fentanyl, the administration claimed the U.S. imbalance of trade as the emergency trigger.
The trade imbalance means people and businesses in the U.S. spend more money on the goods and services they buy from foreign sellers than they receive from sales of goods and services to foreign buyers. The executive order signed last week by Mr. Trump reflects that the U.S. has experienced this trade imbalance since 1934. By definition, it is not a sudden or unexpected event; thus, it is not an emergency as defined in the statute.
No emergency means there is no lawful basis for Mr. Trump’s imposition of the tariffs.
There is also no constitutional basis for the statute. The Constitution gives Congress the exclusive power to tax. The framers were so determined to keep that power that they required that all taxes originate in the House of Representatives. Because this Trump sales tax originated in the White House, it violates the Constitution.
Can Congress give the president power to tax? In a word, no.
Congress cannot give away any of its core functions, including the power to tax. James Madison, the scrivener at the Constitutional Convention in 1787 and, during his lifetime, its most authentic interpreter of what the framers’ original understanding of the document was, argued that the separation of powers — the Congress sets taxes, the president collects them — was written to preserve personal freedom by preventing the accumulation of too much power in any one of the three branches.
His argument was followed 200 years later by Justice Antonin Scalia, who wrote that delegated core powers cannot be redelegated to another branch.
This is an example of why we have a life-tenured and unelected judiciary. It is the anti-democratic branch of government. Its duty is not to reflect the will of the voters but rather to protect their lives, liberties and properties from the popular branches when either of them exceeds the powers granted by the Constitution or tampers with its structure.
Congress can no more allow the president to impose taxes than he can allow the judiciary to command troops in wartime.
Here we are with a pliant Congress, one of whose predecessors gave away limited taxing power to the president, and a president heedless of the Constitution he has sworn to uphold and the federal laws he has sworn to enforce. Can Congress impose tariffs? Of course, it can, and it did so as the primary revenue source for the federal government until the War Between the States.
Constitutional trouble comes when presidents argue it’s time to employ the emergency doctrine. As the Supreme Court has made clear, there is no emergency doctrine. Presidents from John Adams to Mr. Trump have argued that the “emergency” enhances their powers and they can determine when an emergency arises. This is a trick used by tyrants throughout history.
Congress has defined emergency. It is Congress’ duty to rein in its wrongful use. This is not a pro-Trump or anti-Trump issue, nor is it a Republican or Democratic issue. It is one of fidelity to the supreme law of the land and to the laws written pursuant to it.
Without that fidelity, we have no democracy; we are ruled just by the contemporary whims of whoever is in the government. One of the Colonists’ complaints about the British Parliament was taxation without representation. Good God, are we back to that?
• To learn more about Judge Andrew Napolitano, visit https://JudgeNap.com.
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