The real tariff test

What if Congress votes on Trump's "reciprocal tariffs"?

I’ve thought it obvious since the beginning of Trump’s furious assault on free trade that most of his tariffs — namely the “reciprocal tariffs” ordered under the claimed authority of the International Emergency Economic Powers Act (IEEPA) — are illegal.

First, there is no credible emergency and second, and more importantly, the law does not permit the imposition of tariffs even if there were an emergency.

On Friday, a divided (7-4) Court of Appeals for the Federal Circuit ruled the way I would have: A federal appeals court ruled against Trump's tariffs. Here's what could happen next. - CBS News

The opinion itself is HERE.

Unless specifically delegated to the president by an act of Congress — and there are a couple of such delegations and Trump is using them for other tariffs — Congress, not the president, retains the power to impose tariffs.

The Supreme Court is likely (though not certain) to take the case. They’ll certainly receive the request for cert from the Trump administration this week if they haven’t already.

So let’s say the court process, whether SCOTUS takes it or not, ends with these tariffs being ruled illegal. It’s important to remember that illegal is not (always) the same as unconstitutional and the tariffs could be made legal if Congress votes to enact the tariffs or votes to give the president the power to enact them.

Let’s interject a little politics, from an Axios note about the House Freedom Caucus, the group of theoretically principled conservatives who have long been the bane of big-spending Republicans, at least until they go along as well due to the exigencies of politics:

The rabble-rousing group of hardline Republicans who once ousted a speaker and have held GOP leadership hostage over the past decade is shrinking in size and clout as several prominent members head for the exits.

• The HFC is struggling to reconcile loyalty to President Trump with its own budget-cutting priorities — and the former often takes precedence.

• That's raising doubts about whether the group can remain an independent force on the party's right flank, rather than increasingly, after some grumbling, caving to Trump.

I note this piece in the Washington Times about the Freedom Caucus claiming that they’re still effective: Freedom Caucus dispels accusations of 'caving' on goals, cites behind-the-scenes wins - Washington Times (may require subscription)

There is much to say about whether Trump is or isn’t fiscally conservative and about the economics of tariffs but I’ll save those for another day. My readers know that I think Trump, as a populist, is hard to ascribe any real ideology to, and you know that I don’t like tariffs.

But the primary points today are legal and political, not economic, and the overall discussion applies regardless of whether you support or oppose the tariffs.

As the first bullet point above recognizes, for the handful of somewhat-principled Republicans left in Congress, they face a serious tension between their understanding of the downside of tariffs (and I’m sure there’s a range of thoughts among them just as there’s a range among the rest of society) and their fear of losing their next primary or general election due to opposing (or just not sufficiently supporting) Donald Trump.

Like it or not, Trump isn’t just the leader of today’s GOP; he’s the most dominant leader of the GOP at least since Reagan, and maybe ever. Many presidents may have been highly respected, perhaps even close to revered, at least by members of their own party, but none has lived in a time with the incredible power of social media as it exists today. Even Barack Obama, who governed during a time of some power in social media, wasn’t as good at it as Trump is.

In that sense, there’s probably never been an American president with greater ability to influence and energize his supporters at any moment he chooses and, again, you’d have to go back a long way to find a president whose supporters were anywhere close to as loyal as Trump supporters are. For the record, I think this is a bad thing. Not because of how I feel about Trump (and, again, Obama was similar in this context) but because I don’t ever like an American president to function like a cult leader or dictator, or to cause voters to support policy without actually thinking about it. Another comparison: I don’t like it when we cheer for a president or party with as much fervor and lack of thought as when we cheer for our favorite NFL team. (Though I do understand anyone who deeply loathes the Raiders.) I want voters to see politicians as flawed and temporary, which is the very reason our government was structured as the Framers designed it. But just because I don’t like it doesn’t mean it’s not real and important.

So what happens when, as seems likely, the Trump administration is forced to go to Congress to approve his “reciprocal tariffs”?

I suspect every Democrat will vote “no” just because it’s Trump. (If that’s wrong, the calculation changes massively, and it would be almost funny to see Democrats, who have long been the primary opponents of free trade as now offering support for it.) At that point, given how narrow the GOP majority is, they can’t lose very many votes in the House and still pass a bill. How many Republicans will be willing to stand up for the American consumer and oppose tariffs? It’s not as easy as that sounds, of course, because tariffs are always posed as benefiting American producers while the consumer, including businesses who use the particular product as an input in their own manufacturing — like protecting aluminum manufacturers and ignoring washing machine manufacturers who use aluminum — are routinely ignored.

Will any of those people leaving the House to run for other offices be willing to oppose Trump’s tariffs? Or will they be afraid of a primary challenge from someone more MAGA than they are, holding an economically rational vote against them?

And what about in the Senate? The only chance to pass this sort of thing in the Senate is through the reconciliation process which only requires 51 votes (which can be a 50-50 vote and the vice president breaking the tie) and can’t be filibustered. However, reconciliation is only for budget items. So, the bill would have to be written specifically noting tariffs as a source of revenue and probably leaving out discussion of their use to change global trade flows or to “reshore” manufacturing because a provision designed for those purposes would likely not be accepted by the Senate Parliamentarian as allowable in a reconciliation bill. It will take some clever drafting to avoid a bill that Democrats can easily portray as little more than a national sales tax paid for by Americans. I mean, that’s what a tariff is, but Trump never admits that and doesn’t want to start now.

Under any other president with a majority this narrow, I would expect a policy as bad as Trump’s “reciprocal tariffs” not to be retroactively enabled through a vote of Congress. But Trump is so dominant and most Republicans so cowardly that it could actually happen. Not just due to how bad the policy is but even more so because of the supine position it puts Congress in vis-a-vis its relationship with the president, further weakening the former and strengthening the latter, that outcome would be a terrible day for our republic.