On Tariffs and Constitutional Structure

On a Sunday evening in August 1971, Richard Nixon appeared on television to announce what he called a New Economic Policy. Without warning, without congressional debate, without a single vote by any elected representative, the President imposed a 10% tax on virtually all foreign goods entering the United States. Nixon wrapped this unprecedented assertion of executive power in the language of emergency—the Bretton Woods monetary system was collapsing, the gold standard was dying, and decisive action couldn't wait for Congress.

When businesses challenged these surprise tariffs in federal court, the judges ruled that presidential authority to "regulate" imports under emergency powers did not include the power to tax. Congress responded by passing new legislation that explicitly granted presidents emergency tariff authority—but only up to 15%, only for 150 days, and only in genuine balance-of-payments crises.

Half a century later, President Trump has shattered Nixon's precedent and Congress's carefully crafted limits. Claiming authority under the International Emergency Economic Powers Act—a 1977 statute that, like Nixon's law, permits "regulating" imports during emergencies but never mentions taxation—Trump has imposed tariffs up to 57% with no expiration date.

The Supreme Court will hear oral arguments this month on this very issue, an issue that the Framers thought they had answered definitively: Can a president impose taxes on the American people without explicit congressional authorization? The administration's argument reduces to this: because IEEPA lets presidents "regulate" trade during emergencies, and because regulation sometimes can include taxation when Congress explicitly says so, presidents now possess inherent authority to tax by executive decree whenever they declare an emergency.

This interpretation would hand future presidents—Democrat and Republican alike—a power that the British Parliament denied to kings and the Founders denied to presidents. The next president could declare a climate emergency and impose carbon tariffs to fund renewable energy. Another might proclaim an infrastructure crisis and tax imports to finance construction projects. The wisdom of these policies is beside the point. Constitutional structure isn’t a luxury we can afford only when we distrust the president in office—it’s the framework that makes disagreement itself sustainable across time. The constraint that protects your adversary's rights today is the same constraint that will protect yours tomorrow. When we ask whether a president may tax without Congress, we're not asking whether this president's emergency is genuine or that president's aims are worthy. We're asking what kind of republic we mean to be, or capable of keeping. And indeed once "regulate" means "tax," and once any persistent problem qualifies as an emergency, the Constitution's most fundamental structural constraint on executive power evaporates.

The power of the purse returns to exactly where the Revolution said it must never reside: in the hands of one person, declaring necessities, imposing burdens, beyond the reach of the people's representatives.

When Charles I tried to impose ship money levies without Parliament's consent in the 1630s, he triggered a civil war that cost him his throne and his head. When George III attempted taxation without colonial representation in the 1760s, he lost an empire. The Framers knew this history intimately—several had law libraries dominated by English constitutional treatises, and all had lived through a revolution triggered by executive taxation.  The Framers encoded this historical lesson into our constitution. They made the power to tax Congress's first enumerated power, required revenue bills to originate in the House, and gave the President no independent authority to raise revenue.

Now the Court must decide whether those constraints still bind or whether creative statutory interpretation can accomplish what the Constitution – and the history accompanying it – unequivocally forbids.

No Taxation Without Representation: Why the Supreme Court Must Reject Presidential Tariffs

For over four centuries, the power to tax has stood as the most jealously guarded right in the Anglo-American constitutional tradition—not simply because of money, but because of what taxation represents: the power to command the people's property without their ongoing consent.

In the 1620s, Charles I faced a Parliament that refused to grant him adequate revenues. Rather than negotiate, the Stuart monarch turned to creative interpretation—imposing "forced loans" that were taxes in all but name, and imprisoning without trial those who refused to pay. When Parliament protested, Charles dissolved it in 1629 and ruled for eleven years without calling it at all.

To finance his government, Charles revived "ship money"—originally a requirement that coastal towns provide ships for the navy in wartime. But Charles transformed it: extending the levy to inland counties, imposing it during peacetime, and making it annual and indefinite. The courts upheld his authority by a narrow 7-5 vote in R v. Hampden (1637), reasoning that the King alone could determine when an emergency existed and what revenues it required.

Parliament's response came with the Petition of Right (1628)—a constitutional document ranking alongside Magna Carta. Led by Sir Edward Coke, Parliament forced Charles to acknowledge four principles: no taxation without parliamentary consent, no imprisonment without cause, no quartering of soldiers on citizens, and no martial law in peacetime. Charles signed it but never honored it. By 1642, England had descended into civil war. By 1649, Charles I had been tried for treason and beheaded.

The American revolutionaries knew this history intimately. Many colonial leaders had read Coke's Institutes and understood that John Hampden's challenge to ship money had made him "the Father of the People." When Parliament began imposing taxes on the colonies in the 1760s, the colonists reached for the same constitutional vocabulary their English ancestors had used against the Stuarts.

But here's what modern lawyers often miss: the colonists' argument was more sophisticated than simply "no taxation without representation." They drew a careful distinction between Parliament's power to regulate imperial trade and its power to tax for revenue.

The colonists conceded Parliament's authority to regulate commerce. The Navigation Acts, which required certain goods to be shipped on British vessels, were generally accepted. Parliament could shape trade patterns: directing manufacturing to Britain, agriculture to the colonies, controlling trade routes. Such regulations were understood as part of the mercantile system that bound the empire together. The mother country would provide military defense and access to British markets; the colonies would supply raw materials and purchase British manufactures; coordinated trade policies would strengthen the entire empire against its European rivals. These were external duties—regulations affecting commerce at the ports that could be avoided by not importing certain goods.

What the colonists rejected was Parliament's claim to impose internal taxes—levies designed purely to extract revenue. The Stamp Act required colonists to purchase revenue stamps for newspapers, legal documents, playing cards, and countless daily items. Unlike import duties, the Stamp Tax reached into every household and business.

Purposeful revenue-raising could only be accomplished, Americans insisted, by large representative assemblies elected at regular intervals. Parliament – that far-away government - could not tax America for revenue purposes because Parliament was not elected and frequently re-elected by Americans. The Declaration of Independence assailed both British King George III and his British Parliament for "imposing Taxes on us without our Consent"—that is, consent as registered in our own legislatures.

The Statutory Sleight of Hand

Given that America's Congress has broad taxation power and also broad power to regulate various matters, including interstate and international commerce, Congress may indeed combine these powers in its legislation. Thus, Congress may regulate for revenue purposes, and also raise revenue for regulatory purposes.

The issues in this case raise entirely different questions. May the executive, without clear congressional authorization, twist a statute that nowhere uses the magic words "tax" or "revenue" into a gigantic revenue measure? May the executive, in effect, rewrite the entire tax code for an indefinite period in the absence of any clear legislative authorization?

Consider the absurdity of the government's position. IEEPA authorizes regulation of both imports and exports. But the Constitution absolutely prohibits Congress from taxing exports—Article I, Section 9, Clause 5. Southern states insisted on this provision to protect their agricultural exports from federal revenue extraction. It is a textual stretch to say that the word "regulate" means "regulate for revenue purposes" for imports but means the exact opposite for exports. The government would have us believe Congress used the same word in the same sentence to authorize taxation (for imports) and to forbid it (for exports).

The government places great weight on President Nixon's 1971 emergency tariffs. Facing a balance of payments crisis that threatened the Bretton Woods monetary system, Nixon imposed a 10% import surcharge under the Trading with the Enemy Act, which, like IEEPA, authorized the president to "regulate" imports. When challenged, the customs court initially held Nixon lacked such authority. But Congress, even while supporting Nixon's economic goals, was deeply concerned about the assumption of power.

Missing in the government’s brief, however, is what happened next. Congress passed Section 122 of the Trade Act of 1974, explicitly granting presidents emergency tariff authority—but only up to 15% and only for 150 days. If Congress believed that "regulate" in TWEA already encompassed tariff authority, this statute would have been superfluous. Congress was not ratifying an existing power but creating a new, carefully limited one.

Then, Congress repealed TWEA except in cases of declared war and enacted IEEPA to govern peacetime emergencies. The legislative history is utterly silent on tariffs. Why? Because Congress had just finished addressing emergency tariffs in Section 122. It defies belief that Congress, having carefully limited emergency tariffs to 15% for 150 days in one statute, simultaneously granted unlimited tariff authority in another without saying so.

President Trump's tariffs make a mockery of these limits. They range up to 57% on Brazilian goods. They have no end date. They vastly exceed what Congress authorized when it actually addressed emergency tariffs explicitly.

The administration's defenders argue that this Court should defer to presidential judgment in matters of national security and foreign affairs. They point to a long history of executive discretion in trade policy, citing examples from Washington's Neutrality Proclamation to modern sanctions regimes. Some scholars sympathetic to the administration contend that tariffs are fundamentally regulatory tools, not taxes—their purpose is to shape behavior and protect domestic industry, with revenue collection being merely incidental. They distinguish tariffs from direct taxation by noting that Americans can avoid tariffs by purchasing domestic goods, whereas taxes on income or property are inescapable. The administration further argues that the emergency is real: unfair trade practices, supply chain vulnerabilities exposed by recent crises, and threats to critical industries justify swift executive action that Congress, gridlocked by partisan division, cannot provide. To read IEEPA narrowly, they contend, would hobble presidents facing genuine threats to national security and economic stability—precisely when executive flexibility matters most.

Yet this argument proves too much. The same logic would authorize presidents to impose income surtaxes during fiscal emergencies or property levies during infrastructure crises—so long as they called it "regulation" and declared an emergency. The administration's framework would make the Constitution's careful allocation of taxing power to Congress dependent entirely on how creatively presidents label their revenue-raising schemes.

The Major Questions Rears Its Head

The Supreme Court has repeatedly invoked the major questions doctrine to strike down executive actions that discover vast powers in modest statutory grants. The Court invalidated the CDC's eviction moratorium, the EPA's generation-shifting rule, and President Biden's student loan forgiveness—all for want of clear congressional authorization. As the Court explained in West Virginia v. EPA, Congress does not "hide elephants in mouseholes."

If forgiving student loans requires clear congressional authorization, how can the power to tax spring from statutory silence?

It would be awkward indeed for this Court to be perceived as narrowly construing executive-empowering language under President Biden, as in the landmark student loan case, while doing the exact opposite when confronting President Trump. The major questions doctrine either constrains executive overreach consistently or reveals itself as a weapon of partisan convenience.

Should Congress choose to grant emergency tariff authority in the future with its eyes open, then the Court might need to revisit whether such delegation violates non-delegation principles—"delegation running riot" in the famous language of Schechter Poultry. But if this Court wrongly reads the current statute to empower presidential dictatorship over the tax code, it will be hard for Congress to claw back its constitutional role and power. Any attempted repeal or president-limiting modification will likely have to surmount a presidential veto.

To return to the biggest issue in this case: reading a bland law that nowhere uses the words "revenue" or "taxes" to empower President Trump or any president to rewrite the tax code unilaterally risks creating a dictatorship broadly reminiscent of Charles I in the 1600s and totalitarian regimes in the 1900s.

The wise words of Justice Jackson ring true in the case at hand. Executive power "has the advantage of concentration in a single head in whose choice the whole Nation has a part, making him the focus of public hopes and expectations." This generates "pressure... for action [that] may be irresistible especially in... time of crisis." But the Constitution's response to such pressure is not acquiescence but structure—dividing power precisely when unity seems most expedient.

If the Court upholds these tariffs, it will not merely affect trade policy. Every future president will understand that emergency declarations unlock taxation authority. A Democratic president might declare a climate emergency and impose carbon tariffs to fund green infrastructure. A Republican might proclaim a border crisis and tax remittances to fund immigration enforcement. The limiting principle disappears once "regulate" means "tax."

This case presents the Court with a choice between two stories about our Constitution. In one story, the text is infinitely plastic, its terms expandable whenever presidents declare emergencies, its structures yield to necessity. In the other story—the one I believe—the Constitution's prohibitions and structures matter most precisely when they're inconvenient, when emergencies tempt us toward expediency, when presidents promise action that Congress won't deliver.

Four hundred years of struggle against executive taxation without representation should not end with statutory cleverness and emergency declarations. The principle for which the British Parliament dethroned and executed Charles I, for which Americans fought a revolution, for which the Framers designed our Constitution, deserves better than death by creative interpretation.

The Court should read IEEPA to mean what it says: presidents may regulate international commerce during emergencies, using the specific tools Congress has granted. But they may not, through regulation's guise, exercise the one power the Framers most jealously reserved to the people's representatives—the power to tax.

Constitutional Interpretation