The President’s recent actions in two main areas have started him(or advanced him)on a road toward conflict with the US Congress. They have also brought to national attention questions concerning what our constitution says and what it means, what assumptions have been made about it, and what our leaders should do about those assumptions, about the actions that have resulted (and continue to result) from them.

I mean, of course, the questions of balance between the Executive and Legislative branches, and how these should and may affect our national well-being. Frequently these matters affect other nations and people as well as should be obvious (but apparently is not always) since foreign trade, diplomatic relations and the possible use of military power may be involved.

The main principles should not be difficult to grasp. They are stated clearly, though without a lot of specificity in Article 1. In Section 8 it says, “The Congress shall have power to lay and collect taxes, duties, imposts and excises.” Shortly after that it says that “To regulate commerce with foreign nations” is a matter that “:The Congress shall have power” to do.

I wish to reflect(briefly, I hope, for both of us)on these issues, the (mis)interpetations they may inspire, and what they may portend. Then, perhaps, we’ll take a look at military power, and growing concern for many of us.

The dictionary definition of a tariff is a tax imposed on imported goods to “protect domestic industries from foreign competition or exert political leverage.” Of course, a tariff may do both of these and more

The first significant tariff in US History was the tariff of 1828 which was intended to assist new industries in the Northeast by keeping out cheap (mainly British) imports. It was denounced by the South as the “Tariff of Abominations” though this melodramatic name was excessive. It appears to have been a traditional tariff done for traditional reasons. But Southern planters felt it would harm them. It did nothing for protection of US Agriculture and they thought it would reduce foreign trader to the point that their wealth from agricultural, (particularly cotton) products would be diminished.

It has been pointed out that this was, in a sense, a precursor to the Civil War as it was to some degree really about Slavery, which by now was looming large in the national debate and the South feared northern intervention on the issue. No doubt this is true, but I think some of the outrage over southern financial affairs was real. Southern planters had mistrusted banks in places like Boston and New York for a long time

The debate on this became furious and many angry words were spoken. To my knowledge this was the first occasion when the word “secession” appeared in the national conversation. President Andrew Jackson, a southerner and slave holder, may have in some sense sided with the south inwardly, but he felt a strong loyalty to the Union and to the necessity of defending it. Largely through his efforts and threats a compromise was worked out that allowed each side to get something but tipped the scales in favor of national unity rather than disunity.

Tariffs were slightly less important over the net 2-3 decades, though still sometimes the cause of contention. After the Civil War the Republicans were by far the dominant party until FDR and the New Deal era, and to a very large extent they used the tariffs to protect US industry. They were usually in charge and got their way and on the 2 occasions Democrats managed to change this situation, the next Congress promptly switched it back to being protectionist (that is, protective of US companies)

After the stock market crash of 1929 and what appeareed to be the beginnings of a depression, the Smoot-Hawley tariff was proposed. It was to raise tariffs and therefore, it was believed by some, protect the US from the worst effects of what might be a worldwide issue. After the Congress passed it more than a thousand US economists wrote to President Herbert Hoover advising him to veto Smoot-Hawley as the now industrialized world economy would not yield to one tariff bill. Hoover signed the bill into law in 1930 and the Depression, already looming, became real. We know the rest

In the years of the Depression and the war, trade understandings were still sometimes necessary. They were, however, usually negotiated between two countries or among a slightly larger number. Real tariff bills played little part in this era of Congressional History. This situation changed a bit not not much in the following decades, trade always an issue but tariffs usually being replaced with international trade agreements

There was a significant 1970’s era law, the International Emergency Economic Powers Act(IEEPA) which Trump has found useful, as it allows the President to “regulate …importation” during emergencies. This immediately raises two questions–does the act include tariffs as “importation,?” And “what constitutes a national emergency that might yield to this sort of solution?” The Trump Administration has argued that act clearly means tariff imposition and they have, I think, a fairly logical case here. But opponents, businesses particularly, have pointed out “tariff: and “duty” are two words not in the law. So there is room for doubt

During the Biden Administration the conservative leaning court ruled in many cases that an administration may not take certain types of action without explicit Congressional authorization., particularly when significant politial or economic questions are invlved. Though these decisions rarely if ever actually addressed tariffs, the implication is there and inferences likely could be made.

This has now become a leading controversy of the 2nd Trump Administration, and the federal courts and finally the Supreme Court are proving the Constitution a stumbling block to Trump. His use of the emergency clause of IEEPA has led to every lower federal court which was asked for a decision to finding the actions violated the law, thought their reasoning varied. Then came the 6-3 decision a few days ago, which was followed by Trump’s bitter and adolescent sounding response.

Trump and his followers argued that tariffs affect foreign affairs which traditionally are an Executive more than a Legislative matter. The Chief Justice disagreed, writing “Taxes, to be sure, may accomplish regulatory ends. But it does not follow that the power to regulate something includes the power to tax it as a means of regulation.” A lawyerly sounding statement?–Yes, and that’s why a civilized society needs lawyers.

There is also an IEEPA provision that the President may raise taxes up to 15% for a maximum 150 days. You may remember the President used this to declare an extension, first 10%, then the maximum of 15%. Then with truly Trumpish regularity he went back to the original amount.

And, apparently, there the issue stands for now. The above is a brief summation of the issue and if you want more detail check the internet article on Wikipedia, which I used for this article. But be assured this is an important matter and it is likely the country will hear more of it.

That is enough to hear for now. I also wish to discuss Trump’s relationship with the constitution as regards war powers and the use of military action. I hope to do soon and that the President has not initiated military action in the meantime.