By BARBARA HANEY
I am writing in my capacity as a private citizen and as an economist to respond to some comments from a recent event titled, “Bridge the Divide” held at the Fairbanks North Star Borough Assembly Chambers. As a former faculty who taught political economy at UAF, I was unable to attend due to Open Meetings Act constraints. It would have been nice to be able to attend and directly address issues raised, but alas, state statute restricts the number of elected officials that can attend an event, and other assembly members had indicated to me that they were going.
However, it is my understanding, based on media reports, that at that meeting an argument was advanced that President Trump’s tariff policies are unconstitutional. At first blush, that seems correct, but a bit of research and experience suggest the President is acting within his legislative authority.
In 1890, Congress passed a tariff act that delegated authority to the President to establish tariffs on selected goods. In 1892, Field v. Clark, challenged the authority of the Congress to delegate powers to the president under the Tariff Act of 1890. The Supreme Court upheld the 1890 Act and the President’s role in fulfilling a Congressional mandate.
In 1934, Congress delegated additional authority to the executive branch through the Reciprocal Trade Agreements Act of 1934. This act gave the president the ability to change tariffs rates by 50% and negotiate bilateral trade agreements without additional approval from Congress.
There are also other statutory provisions that allow the President to engage in unilateral tariff authority. Section 232 of the Trade Expansion Act of 1962 allows the President to modify tariffs if they compromise national defense. These tariffs could be implemented without a sunset date.
Then there is the Trade Act of 1974. Section 122 allows the president to enact temporary tariffs to address large and serious balance of payments deficits or other situations that present fundamental international payments challenges. Section 201 of the Trade Act of 1974 allows the president to implement an 8-year tariff if the International Trade Commission determines a domestic industry issue is threatened by a surge of cheap goods. Section 301 of the 1974 act allows the President to act on recommendations by the United States Trade Representative (USTR) to authorize tariffs, up to 4 years, on foreign countries that restrict U.S. commerce in “unjustifiable,” “unreasonable,” or “discriminatory” ways. There are other provisions available to the president under the International Emergency Economic Powers Act of 1977.
Thus, it seems that the President is operating under the authority granted long ago by Congress. Of course, tariff law is hardly the bailiwick of a gender studies faculty that were presenting. That is something an economist would be most likely to have some familiarity. Too bad there wasn’t one on the panel.
Barbara Haney received her PH.D in economics from the University of Notre Dame and formerly taught in the economics department at UAF. Her opinions are her own.
Great analysis, Barbara.
It’s also worth noting which political parties held the reins of power when these major expansions of presidential tariff authority were enacted:
1890: President Benjamin Harrison (Republican) signed the original Tariff Act into law under unified Republican control of Congress.
1892: Though Harrison remained in office, Democrats took the House, setting up a shift in trade politics that would soon usher in Grover Cleveland.
1934: President Franklin D. Roosevelt, the greatest Democrat president in any political and imagined universe, and overwhelming Democratic majorities passed the Reciprocal Trade Agreements Act, vastly expanding executive authority over trade.
1962: Under President John F. Kennedy, the second greatest Democrat president in any political and imagined universe, and a Democratic Congress, Section 232 of the Trade Expansion Act was passed—still used today to justify tariffs in the name of national security.
1974: In the wake of Watergate and Nixon’s resignation, the Trade Act of 1974—with powerful tools like Section 201, 301, and 122—was passed by a Democratic Congress during Gerald Ford’s presidency, perhaps the slowest moving Republican president in anyone’s universe.
1977: With President Jimmy Carter and a Democratic-controlled Congress, the International Emergency Economic Powers Act (IEEPA) was passed, giving the executive sweeping authority over foreign commerce during national emergencies.
The broad executive tools President Trump used were not invented by him—they were handed to him by decades of legislative action, much of it authored, endorsed, and enacted under Democratic control.
So for those who now recoil at the use of strong executive trade powers, be careful what you wish for. The very mechanisms now criticized were largely built with bipartisan, and often Democrat-led, enthusiasm for a strong executive. What you build in your moment of power can and will be used by those you oppose.
This contributor has given convincing evidences of a president’s authority to set import tariffs. I have no doubt that she is correct, and who could doubt that some D.C. leftists are now preparing to petition a partisan U.S. district court judge to enjoin the president to withdraw the revised tariffs. Standing by to read that news story.
Nobody in their right mind believes an economist. They get it wrong every time.
I didnt see anything about being right or wrong but simply pointing out honest information.
As the title of the article points out it is strictly her view and we thank her for that.
Common sense needs to become more common. Thank you for honest information.
I just can’t understand why would you not want fair trade. It’s a fact that it benefits everyone. Could it come down the the Trump derangement syndrome.?
Barbara Haney is an economist, not an historian or a constitutional scholar. I have covered tariffs in previous columns. Congress has NO AUTHORITY to delegate an authority that specifically belongs to them. You won’t find it anywhere. But you CAN find the 10th Amendment, which prohibits it.
Imagine if Congress gave the president power to pass a law. It would be ridiculous. But a tariff (identified as an impost or duty) is a law as well. What Trump is doing is likely necessary to un-do the farce of the 1994 NAFTA and GATT, which created this trade imbalance. However, it is Congress that needs to repudiate NAFTA & GATT, not the president.
I would also point out that presidents have been given the de-facto power to declare war, which is far, far more serious than tariffs. Congress voted the war-making power to a president in the event of a nuclear missile barrage, but an amendment should have been passed for that. But let us look at Korea, Vietnam, Gulf War I & II, and all these endless airstrikes hither and yon. These are not incoming nukes. They are all utterly unconstitutional. No argument is possible to say otherwise. Once you allow unconstitutional actions to occur in one place, it is hard to prevent it in others. We have reached the point where we amend the Constitution by BREAKING it, so long as it is … acceptable. It then assumes its own momentum and tradition. We live in a post-constitutional society.
Why would a conservative, real Republican, or free marketeer attend this anti-Trump rally at the Assembly chambers? UAF Political Science Department, Dermot Cole of the Newsminer, Jr. Hopkins and other extreme left-wingers of sundry importance all gathering at the citizen’s Chambers to whine and gripe about Donald J. Trump? Who’s paying the electrical bills and costs of security for this rally? Certainly not those who are so emotionally and psychologically affected by Trump Derangement Syndrome (TDS). Of course no Trump supporters showed up. Only the crazies who would have you believe that the Constitution doesn’t apply when Republicans are in charge. All of these phonies and hypocrits will have to live with their TDS for another 44 months. And by then, Trump will have changed the Constitution again and he’ll get another 48 months in office. Maybe by then, the Democrats will have found a vaccine for TDS and their party will mandate vaccinations.?
Stay tuned for more Democrat meltdown as they destroy themselves.