BURSTThe Federal Circuit Court of Appeals ruled 7-4 Friday that the president’s aggressive imposition of unilateral taxes on imports is “invalid as contrary to law.”
Trump has claimed sweeping authority to impose, remove, and modify at will tariffs on any country in the world all under the International Economic Emergency Powers Act which, as the court notes, has never been used by any president to impose tariffs in its 50-year history. The Trump administration also argued that, because tariffs relate to foreign affairs and national security, the president should be given special leeway to impose them. The court was rightly “unpersuaded” by that argument.
The Constitution was designed by the Framers to protect from government overreach the liberties Americans hold dear. To fulfill that purpose, it must not be subject to change by any government official apart from the amendment process. That is why conservatives — most prominently the late Justice Antonin Scalia — have argued that originalism, the view that legal texts must be interpreted as they were understood when adopted, is the only legitimate form of constitutional interpretation.
If the Constitution’s meaning can be twisted and its powers distorted by a majority of the Supreme Court, or Congress, or by the president, the Constitution will not keep us free.
Article I, Section 8 of the Constitution vests the power to tax, including the power to impose tariffs, in Congress alone. Congress has no constitutional authority to divest that power to the president. The government’s argument — that presidents deserve special judicial deference — was an attempt to circumvent the constitutional limitations on both the president’s and Congress’s power.
As argued by Advancing American Freedom and quoted by four of the seven-member majority in their “additional views” opinion, “at the founding, ‘taxations levied on imports were not a special category of power that Congress shared with, or could share with, the president.’”
As the Constitution was being drafted and later considered by the states for ratification, one question debated was whether the new national government should have the power of “internal” taxation or whether its authority should be limited to “external” taxation — taxes on imports and the like. What was not debated was which of the government’s three branches would exercise that power. Everyone understood that Congress, as the representative branch closest to the people, alone held the power to tax.
The Founders understood, as Alexander Hamilton noted in The Federalist 35, that when it comes to taxes on imports, “the consumer is the payer ... much oftener ... than the reverse.” The Founders would have certainly objected to granting the power to separate the people from their property to a single man. After all, they had recently finished fighting a war against “taxation without representation,” after declared independence from Great Britain in part because the king had “impos[ed] taxes on us without our consent.”
The Constitution contains no “foreign affairs” or “national security” exemption to the limitations it imposes on government power. Neither the president nor Congress may rewrite the Constitution, apart from the amendment process, even if doing so seems worthwhile to them. Those limitations on government power are what keep us free.
The Federal Circuit’s ruling leaves the tariffs in place for now, and either the Court of International Trade or the Supreme Court will have the opportunity to grant the challenging parties, and Americans generally, relief from Trump's tariffs.
Nonetheless, the court’s ruling is clear and unequivocal on the core legal issues at stake in the case. The law that Trump has invoked does not grant the president the power to impose taxes on imports.
Marc Wheat and Timothy Harper are general counsel and counsel, respectively, to Advancing American Freedom.