Can the president tax you? No. Stop tariffs
By: Andrew P. Napolitano
Your Turn
Guest columnist
..... The Supreme Court has begun the process of deciding of the president can impose a sales tax on products and services that originated in foreign countries and are purchased in the United States. The president calls these taxes tariffs.
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Tariffs are nearly as old as the republic, and when imposed by Congress -as they have been , going back to the presidency of Thomas Jefferson - they are clearly constitutional. Yet the questions before the court ask if Congress delegated away to the president those power to tax, and it did, was that delegation constitutional?
..... The Department of Justice argues that both of those questions should be answered in the affirmative. However, if the court concludes that Congress never gave it taxing powers to the president, then it needn't reach the second question. It should answer both questions in the negative, as there is simply no statute in which Congress has authorized the president to impose tariffs on his own, and under the Constitution, only congress may impose taxes.
..... The Justice Department argues that the National Emergencies Act of 1976 and the International Emergency Economic Powers Act of 1977 permit the president to address emergencies, and one of the tools of addressing emergencies is to impose tariffs. Does the United States currently have an economic emergency? The president says the imbalance of trade - American industry and consumers buying more form foreigners than American industry sells to them - is somehow an emergency. It is not. We have had an imbalance of trade since 1934. Moreover, neither of the statutes upon which the president relies for authority to impose tariffs even mention tariffs by name, or implication.
..... The imbalance of trade is not an emergency under falafel law. Not only has it existed continuously since the Great Depression, but federal law defines an emergency as a sudden and unexpected event - like a surprise military attack or a hurricane - that adversely affects the national economy.
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If you use up your line of credit on one of your credit cards and you owe more than you currently ave in your checking account, that is the functional equivalent of a personal imbalance of trade. is that the fault of the folks from whom you purchased your goods? Should they be punished or taxed fro selling you what you want to buy? Of course not.
..... Clearly, a state of affairs that has existed for 90 years is not sudden or unexpected. It is also a matter of basic economics hat owing more than you have on hand is simply not the fault of the folks to whom you owe it. Nor is it necessarily a bad thing or one that begs for government remediation.
..... It is historically accurate that tariffs have been and can be used in economic emergencies, but they must be used by Congress. They very first power delegated by the Constitution to the Congress is the power to tax. Because the Congress gave power to the president to address emergencies, he has assumed hat among them is the power to tax. But taxation is a core function of Congress - meaning it is expressly granted to Congress in the constitution - and we know from Supreme Court jurisprudence that core functions can to be delegated away.
..... The Congress can no more delegate to the president the power to tax than it can the power to prescribed punishments for federal crimes. And the president can no more exercise the taxing power than he can delegate to the chief justice the power to be the commander in chief of the armed forces.
..... Theses powers - Congress enacts federal laws and declares war, the president enforce the laws Congress has enacted and wages war, the courts interpret the laws and the Constitution - are internationally and uniquely circumscribed and rather precisely assigned to each of the three branches. This circumscription and these assignments are collectively called the separation of powers.
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Power in the federal government are separated not to enhance the hegemony of each branch, but to prevent the accumulation of excessive power in one branch at the expense of either of the other two, thereby diminishing the ability of the other two to check the one that has excessive power, and thus threatening personal liberty.
..... Stated differently, James Madison, the scrivener of the Constitution, intentionally created "jealousy" - his word - between and among the branches. It was his intention that jealousy would serve as a check on the accumulation of too much power in one of the branches. His goal was the maintenance of limited governed, thereby assuring maximum personal freedom.
..... An example of this is war. Under the Constitution only Congress can declare war and only the president can wage war. if Congress were to delegate away to the president - or if the president were to seize from Congress while it slept - the power to declare war, then he would enjoy the power to declare and to wage war. That would make him akin to British monarchs before the ascendancy of Parliament - an evil Madison sought nightly to prevent.
..... Wehr does all this leave us?
..... In a democracy, the people are entitled to expect that the folks they have elected will follow the Constitution.
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But presidents and congresses have continually sought to expand their powers beyond the limits of the Constitution.
..... Madison understood that government is the negation of liberty, and thus its powers must be carefully circumscribed. yet, when government - here, the president - does something thats is clearly beyond his constitutional authority and affects us all, it is the duty of the courts to correct him.
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The whole purpose of an unelected life-tenured judiciary is to be anti-democratic; to restrain the unlawful impulses and extra-constitutional behavior of the popular branches of government. If any time ever called for that restrain, it is now.
..... Andrew P. Napolitiano, a former New Jersey Superior Court judge, has punished nine books on the U.S. Constitution. to learn more, visit JudgeNap.com