Congress, not the president has right to levy tariffs
Congress, not the president has right to levy tariffs
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In V.O.S. Selections Inc. v. Trump the Federal Circuit questioned President Trump’s tariff authority.
Discussions of this have focused on foreign affairs powers and the “major case” doctrine, neglecting the core issue. The core issue is the purported delegation of legislative power to the president. Back in the 1930s, the NRA statute gave the president discretionary powers over virtually the entire economy, which included the ability to set prices unilaterally in many industries. The Supreme Court condemned such authority, confined by no intelligible principle, in Schechter Poultry v. U.S. (1935).
Unlike Hitler’s Enabling Law of two years earlier, the NRA statute did not transfer all legislative power to the president, but it came close. So does the purported delegation of tariff authority to President Trump. Justice Cardozo, who had sustained a single-industry delegation of such power in the Panama Refining v. Ryan (1935) case, said it all in his concurring opinion in the Schechter case: “Congress is not permitted to abdicate or to turn over to others the essential legislative functions with which it is vested. This is delegation running riot. No such plentitude of power is capable of transfer … The law is not indifferent as to differences in degree.”
It is Congress, not the president, that is given the power by Article I, Section 8 of the Constitution “to regulate Commerce with foreign Nations.”
Editorial Advisory Board Members Gary E. Bair, Arthur F. Fergenson, Debra G. Schubert and Jeff Sovern did not participate in this opinion.
EDITORIAL ADVISORY BOARD MEMBERS
James B. Astrachan, Chair
James K. Archibald
Gary E. Bair
Arthur F. Fergenson
Nancy Forster
Susan Francis
Julie C. Janofsky
Ericka N. King
George Liebmann
George Nilson
Catherine Curran O’Malley
Angela W. Russell
Debra G. Schubert
Jeff Sovern
H. Mark Stichel
The Daily Record Editorial Advisory Board is composed of members of the legal profession who serve voluntarily and are independent of The Daily Record. Through their ongoing exchange of views, members of the board attempt to develop consensus on issues of importance to the bench, bar and public. When their minds meet, unsigned opinions will result. When they differ, or if a conflict exists, majority views and the names of members who do not participate will appear. Members of the community are invited to contribute letters to the editor and/or columns about opinions expressed by the Editorial Advisory Board.
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