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Why the president can impose tariffs without Congress’s approval
The Constitution is pretty clear: It’s in Congress’s power “to lay and collect taxes, duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States,” and regulate trade between the US and other countries.
But over the past century, Congress has shifted many of the powers to raise and lower tariffs to the executive branch (a concentration of power that conservatives now decry).
There are many ways the president can impose tariffs without congressional approval. To name a few:
- Through the Trading With the Enemy Act of 1917, the president can impose a tariff during a time of war. But the country doesn’t need to be at war with a specific country — just generally somewhere where the tariffs would apply. (This is how Richard Nixonimposed a 10 percent tariff in 1971, citing the Korean War.)
- The Trade Act of 1974 allows the president to implement a 15 percent tariff for 150 days if there is “an adverse impact on national security from imports.” After 150 days, the trade policy would need congressional approval.
- There’s the International Emergency Economic Powers Act of 1977, which would allow the president to implement tariffs during a national emergency.
Trump’s White House cited Section 232 of the Trade Expansion Act of 1962, a provision that gives the secretary of commerce the authority to investigate and determine the impacts of any import on the national security of the United States — and the president the power to adjust tariffs accordingly.
In this case, Wilbur Ross, Trump’s commerce secretary, conducted an investigation, which Trump called for last April, into the impacts of steel and aluminum imports. That report was enough legal justification for Trump to bypass both Congress and the independent US International Trade Commission (USITC), which is typically called on to weigh in on proposed tariffs. (When President George W. Bush imposed steel tariffs in 2002 as temporary safeguards, it required USITC oversight.)