Trump just drove a truck through Congress’s massive tariff loopholes

In 2018, after imposing steep tariffs on steel and aluminum imports, Donald Trump famously tweeted, “Trade wars are good, and easy to win.” Trump’s time out of the White House has not changed his mind on that subject. Since his inauguration last month, he has set about remaking American trade policy even more dramatically than he did in his first term.

Two weeks ago, he imposed across-the-board tariffs against Mexico, Canada, and China, and though he “paused” the tariffs on Mexico and Canada, they’re still scheduled to go into effect on March 4. This week, he once again imposed heavy tariffs on steel and aluminum imports (those will go into effect on March 12), and while in 2018 he had excluded imports from certain countries from the duties, this time around he’s putting the steel and aluminum tariffs on imports from every country in the world. Finally, on Thursday, Trump rolled out a whole new set of import taxes, putting in place a system of “reciprocal tariffs”—whatever the tariff a country imposes on U.S. imports of a product, the U.S. will now impose on imports of that product from that country.

These moves aren’t surprising—Trump loves few things the way he loves tariffs, and appears wholly unconcerned about the fact that tariffs raise prices for both U.S. businesses and U.S. consumers. (As he put it earlier this month, “We may have, in the short term, a little pain, and people understand that.”) But what is striking, though little-noticed, is that Trump has been able to impose these tariffs unilaterally. Not only has he not consulted with Congress, but he hasn’t even had the office of the U.S. Trade Representative make a case for why the tariffs were necessary. In effect, he’s raising taxes on imports because he feels like it.

Tariff loopholes

This isn’t something the people who wrote the Constitution ever envisioned happening. In fact, the Constitution does not give the president the power to impose tariffs or make trade policy. Instead, it explicitly gives those powers to Congress alone, awarding it the authority to set “duties” and “imposts” (taxes on foreign goods) and to “regulate Commerce with foreign Nations.” But Trump isn’t getting Congress to pass laws imposing these tariffs on foreign imports—he’s doing it by executive order, acting entirely on his own.

How is Trump able to do this? By taking advantage of massive loopholes that Congress has created over the past 60 years, delegating much of its power over trade to the president, while taking very little care to limit what the president can do with that power. Trump’s legal justification for his steel and aluminum tariffs, for instance, is Section 232 of the Trade Expansion Act of 1962, which allows the president to impose tariffs as high as he wants on specific industries, as long as the Department of Commerce determines that imports in those industries are a threat to “national security” (a term the law does not define). He justified his across-the-board tariffs on Canada and Mexico by declaring illegal immigration and fentanyl smuggling a “national emergency,” and then invoking the International Emergency Economic Powers Act of 1977, which gives him the power to impose tariffs during, yes, a “national emergency.”

As for his reciprocal-tariff scheme, Trump will likely rely on Section 301 of the 1974 Trade Act, which allows the president, through the U.S. Trade Representative, to impose tariffs in response to any “act, policy, or practice” of a foreign country that the USTR finds is “unjustifiable” or “unreasonable” (terms the law, again, does not define).

A ‘national emergency’

The problem with all of these laws is that the language they use is so vague and ill-defined that they effectively enable the president to do pretty much whatever he wants whenever he wants. Trump’s justifications for his policies are in many cases self-evidently ridiculous: Imports of steel from Canada or Australia, for instance, obviously do not threaten American national security, nor is the vanishingly small amount of fentanyl smuggled over the Canadian border every year a “national emergency.” But federal courts historically have been uninterested in overriding the president’s judgment about what constitutes a national-security threat, or an “unjustifiable” trade practice, and as a result have basically given the president free rein over trade policy.

That has not been a huge problem in the past because presidents have only rarely chosen to impose tariffs unilaterally. When George W. Bush imposed steel tariffs in 2002, for instance, it caused considerable controversy, simply because that kind of action was so unusual. And before Trump, the “national security” exemption for tariffs had been used primarily to ban oil imports from countries like Iran and Libya (which quite plausibly did pose a threat to national security). Even when presidents did invoke Section 301, it was typically used to negotiate trade settlements through the World Trade Organization.

Trump, though, loves tariffs more than any president in recent memory, and is no respecter of norms. So, he has happily exploited the loopholes Congress has left open, creating the situation of permanent uncertainty U.S. businesses and consumers find themselves in today, where we literally do not know if we’ll wake up tomorrow to find a whole new round of import taxes imposed on the stuff we buy.

Congress could, of course, fix this problem overnight by simply repealing the laws that have outsourced so much responsibility over trade to the president. The Constitution puts trade policy in Congress’s hands for a good reason: Imposing tariffs is almost never something that needs to be done urgently and, like all tax increases, it can and should be done legislatively.

Unfortunately, there’s been no real support from either party in Congress for the idea of taking back power over trade from the White House. Last fall, Senator Rand Paul did offer a such a bill, one that would have required Congress to approve any tariffs the president wanted to impose. But it went nowhere. Now with Republicans—who, aside from the rare rebel like Paul, have no interest in challenging Trump on his pet issue—in charge of both the Senate and the House, there’s very little chance of Congress doing anything anytime soon. So we better get used to “Trump Imposes New Tariffs” headlines: There are going to be a lot of them over the next few years.