Trump’s Tariffs and the Administrative State

President-elect Trump wants to take on the “administrative state” that did so much to hinder his first term. Yet one of his first proposals — to raise tariffs on Chinese and other imported goods — is based on a fundamental premise of the administrative state: the unconstitutional delegation of legislative power.

It is a sign of how far and long we have departed from a constitutional government that nobody asks how the president can unilaterally alter tariff rates. Article 1 of the Constitution is pretty clear that “Congress shall have power to regulate commerce with foreign nations.” It also begins with the statement that “All legislative powers herein granted shall be vested in Congress.” Nowhere does the Constitution give Congress the option of transferring that power to others.

In the 19th century, the tariff preoccupied Congress. Legislators spent more time debating this issue than any other. It was the preeminent issue defining the parties — the Republicans were the protectionists and the Democrats the free traders. The greatest threat to the Union before the Civil War was John C. Calhoun and South Carolina’s efforts to “nullify” the protective tariff of 1828. Congressmen jealously guarded the tariff schedule, especially if it protected industries in their districts.

In the late 19th century, progressives saw the tariff as the source of oligarchy (“the mother of the trusts”) and political corruption. They sought to take it — and many other political questions — out of the hands of legislators and party bosses and give it to the president or better yet “expert” commissions.

After a century of tariff battles, Congress began to promote “reciprocal trade” (what today would be called “fair trade”) by letting the president put trade goods on the protected list if he determined that another country was treating American goods in an “unequal and unreasonable” manner. The Supreme Court upheld this act in 1892, Field v. Clark, saying that Congress had not really delegated legislative power. Rather, it had merely instructed the president to act in a certain way once he determined that a particular set of facts had been obtained.

Nobody has a better claim to the paternity of the administrative state than Woodrow Wilson. As a presidential candidate in 1912, he had said, “What I fear is a government of experts. God forbid that in a democracy we should resign the task and give the government over to experts.” But, in an effort to win progressive support for his reelection in 1916, he presided over the creation of the Federal Reserve Board, the Federal Trade Commission, and many other agencies, including a Tariff Commission.

As an astute observer noted, the country had long had two tariff commissions — the House Committee on Ways and Means and the Senate Committee on Finance. But congressmen had become increasingly willing to hand off controversial issues to others. As former Solicitor General James M. Beck noted in 1932, “Nothing is more suggestive of the enthronement of bureaucracy in America than this unconstitutional creation of the Tariff Commission.”

The 1916 Tariff Commission was merely advisory, but in 1921 Congress allowed the president to adjust rates based on its recommendation. The Supreme Court upheld this act as well. Chief Justice William Howard Taft, usually regarded as a conservative, held in the J. W. Hampton case that “If Congress shall lay down by legislative act an intelligible principle to which the person or body authorized to fix such rates is directed to conform, such legislative action is not a forbidden delegation of legislative power.”

In Field v. Clark, two Justices had dissented, writing “That no part of this legislative power can be delegated by Congress to any other department of the government, executive or judicial, is an axiom in constitutional law, and is universally recognized as a principle essential to the integrity and maintenance of the system of government ordained by the Constitution.” But a generation later the same Court that decided Hampton unanimously approved the delegation of legislative power.

In the 1970s, Congress further extended the president’s power to impose tariffs unilaterally. Though the Roberts Court has shown a willingness to revive the “nondelegation doctrine,” the Court had largely abandoned it after the New Deal. The raft of New Deal agencies and those of the Great Society as well as Obamacare, depend on wholesale delegation.

The Affordable Care Act contains more than 700 points on which the secretary of Health and Human Services “shall” do something and another 200 in which he “may” do something. The administrative state runs on delegation. Progressives know this. Justice Elena Kagan said in 2019, when the Court held that the Sexual Offender Registration and Notification Act was an unconstitutional delegation, “then most of Government is unconstitutional — dependent as Congress is on the need to give discretion to executive officials to implement its programs.”

The fundamental source of the administrative state is Congress’s unwillingness to do its job. Congressmen have found it in their own interest to delegate rather than legislate. Trump will be encouraging rather than dismantling the administrative state if he goes along with it.

Paul Moreno is the Dean of Sciences and the William and Berniece Grewcock Chair in Constitutional History at Hillsdale College. 

READ MORE from Paul Moreno:

Trump’s Second-Term Mandate: Restore Constitutional Government

Dobbs and the Prostitution of History

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