I get that the Trump train is coming, so we're going to have a whole new level of lawlessness in this country, but can people at least acknowledge that the legal limits on what Trump can do exist? I've read a few pieces about what tariffs Trump may impose soon after inauguration day. I've kinda sought them out. I know, it's masochism. But we all cope in our own ways!
Anyway, most of these articles talk about the tariffs Trump will slap on Mexico without ever noting that legally he doesn't have the power to unilaterally impose a tariff on Mexico. It's not even a gray area. Trump can't do it without passing legislation through Congress because of a law that Trump himself signed.
To explain this, I need to back up a bit. The Constitution defines what powers each branch of government has. Article I sets out what Congress has the power to do, Article II sets out what the President has the power to do. On the question of who gets to impose tariffs, the answer is crystal clear: only Congress has that power. Article I, Section 8, Clause 1 gives Congress the power "to lay and collect Taxes, Duties, Imposts and Excises" (a "duty" is a tariff on imported goods). So how did Trump slap tariffs left and right in his first term? Since the 1930s, Congress has delegated its authority to levy tariffs to the President through various laws. Most importantly, through the Trade Act of 1974 Congress gave the President the power to impose tariffs on foreign countries to counteract "injurious and unfair" foreign trade practices. That law was the statutory basis for most (if not all) of Trump's tariff-imposing executive orders between 2017 and 2020.
But subsequent laws passed by Congress override whatever prior laws say. After the Trade Act of 1974, Congress ratified various trade agreements with Mexico which set a different tariff regime for U.S.-Mexican trade. Most recently, the USMCA, the successor to NAFTA, that the Trump administration negotiated with Canada and Mexico, and which was ratified by Congress and signed into law by Trump in 2020. The USMCA now defines the tariffs that can be imposed by the U.S., on Mexican imports. It does not fall under the delegation of tariff authority under the Tariff Act of 1974 like other nations' imports do.
I have no doubt that if imposing tariffs on Mexico is important to Trump he will try to do it anyway. I doubt he understands the USMCA at all. But doing so would not be legal. Whether the increasingly trumpy courts find some way to bend the law into a pretzel to rationalize allowing him to do it is another question. But still, when journalists write articles about the possibility that Trump may slap tariffs on Mexican imports, they should at least mention that unless he gets Congress to pass a new law authorizing him to do that, that tariff would be illegal.
