None Dare Call It Dictatorship

Fountain of Truth ^ | March 18, 2002 | Douglas F. Newman

[BluesDuke]

He's taxing imports coming into the US. It's well within the power of the president.

It is nothing of the sort. I give you, first, the relevant sections of the Constitution as pertain to the specific powers of the Congress...

The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States...To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes...To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures... (From Article I, Section 8)

And, where it specifies the powers or privileges of the President viz legislation:

He shall from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient; he may, on extraordinary Occasions, convene both Houses, or either of them, and in Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper; he shall receive Ambassadors and other public Ministers; he shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States.

There you have it. There is nothing in the Supreme Law Of The Land which empowers the President to, in effect, legislate on his own as regards the power of the tariff (if you will, duties, imposts and excises) - or anything else, for that matter...just because the President can recommend a package of legislation does not bind or require Congress to give it even one minute of consideration; it is a recommendation alone, being that the specified legislative power is granted to Congress.

The executive order, if I am not mistaken, was supposed to be limited strictly to the administration of the various divisions of the executive branch of government and not - as was so often remarked during Bill Clinton's rather shameless flouting of the Constitution by way of executive order - as a lawmaking device. I have frankly found it tirelessly fascinating to see instances in which a President whom we (properly) despise receives our denunciation for such misdeployment of the executive order as precisely a flouting of the Constitution ("Stroke of the pen - law of the land"), yet a President whom we respect receives our acquittal for committing the same misdeployment which performs the same flouting of the Constitution.

Incidentally, if you really think the effect of a tariff upon consumers is merely a trickle-down effect (remember: Mr. and Mrs. America buying that new car or electric mixer or whatever it is they're buying that is made in whole or in part from steel, are not the only steel consumers - those who make the products are also steel consumers, and they will be having to pay a price above proper market value for the steel, and guess how they're going to cushion that price hike?), I would invite you to have a review of the infamous Smoot-Hawley Tariff. You know - the one which lit the wick on that powder keg which became the Great Depression and sentenced us to the New Deal...

[Bogey78O]

I caught my error in the next post concerning power of the president.

Still the trickle down is irrelevant. I'm persoanlly not that thrilled with the tariff but the intention is to force domestic buyers to buy domestically. The trickle down effect applies there as well. What effect is greater depends upon which economist you talk to.

[Centurion2000]

bump for later

[Centurion2000]

He's not taxing US citizens. He's taxing imports coming into the US. It's well within the power of the president.

Go re-read that Constitution .... tarriffs are taxes.

[Bogey78O]

http://www.freerepublic.com/focus/news/648988/posts?page=18#18

[BluesDuke]

I caught my error in the next post concerning power of the president.

I know...I was probably writing my reply while you caught the error. I think they call this one of the occupational hazards of FREEPing...

I'm persoanlly not that thrilled with the tariff but the intention is to force domestic buyers to buy domestically.

No, its intention, when all is said and done, is to force American citizens to support businesses or industries in whose product(s) they have little or no confidence and for legitimate enough reasons. And since when is it the legitimate business, of properly construed American government, to force buyers to buy domestically, or to force American citizens to support inefficient businesses or inferior products, merely because a) a president may have been dumb enough to make such promises to said businesses (and Mr. Bush would hardly be the first president to have been dumb enough to do that); or, b) said businesses have, in effect, gone hat in hand to the State saying, "Our citizens have steadfastly refused, of their own sovereign choice as sovereign consumers, to purchase products made in turn from our product; therefore, it is the State's obligation to compel or coerce their choices to our favour."

[Bogey78O]

'No, its intention, when all is said and done, is to force American citizens to support businesses or industries in whose product(s) they have little or no confidence and for legitimate enough reasons.'

That's why I'm not too thrilled about it. My main objection was the emotional appeal of the article.

[Verax]

"THE President is to have power, ``by and with the advice and consent of the Senate, to make treaties, provided two thirds of the senators present concur.'' - Federalist #75

"However proper or safe it may be in governments where the executive magistrate is an hereditary monarch, to commit to him the entire power of making treaties, it would be utterly unsafe and improper to intrust that power to an elective magistrate of four years' duration." - Federalist #75

"He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties..." - U.S. Constitution - Article II, Section 2

"First. That the supremacy of the national power in the general field of foreign affairs, including power over immigration, naturalization and deportation, is made clear by the Constitution was pointed out by authors of The Federalist in 1787,9 and has since been given continuous recognition by this Court." - U.S. Supreme Court, HINES v. DAVIDOWITZ

Previous thread on Fast Track

[BluesDuke]

My main objection was the emotional appeal of the article.

I think I understand that objection, though there is something to be said for the emotional appeal which allows logic and reason a place at its table, so to say. For one example among many, consider Common Sense (Paine), the Declaration of Independence and, in a somewhat different way, Edmund Burke's Speech on Conciliation with the Colonies.

[GeronL]

Most Republicans are against the steel tariffs in general, but if it is in reaction to unfair trade practices and targeted there is nothing wrong with it. Congress gave the Prez such authority many years ago.

[sourcery]

When sales taxes are raised, who complains? Are not sales taxes legally the responsibility of the seller? What's the difference between a sales tax and a tariff, and why does any difference justify the claim that raising tariffs is not morally equivalent to raising sales (excise) taxes?

[Imal]

Although I agree with almost all the principles Mr. Newman writes about in this article, I am disappointed that he didn't do a little more homework on his central thesis -- that the President is acting like a dictator without legal authority -- and chose instead to spin off a rant that is only loosely rooted in fact.

Since at least as early as the Reciprocal Trade Agreements Act of 1934, which was passed by Congress and signed into law, the President has had the power to control tariffs in one form or another. Subsequent laws further defined and expanded the President's power to control tariffs, including extensions of the Reciprocal Trade Agreements Act in 1951, 1955, and 1958; the original General Agreement on Tariffs and Trade (GATT) of 1947 (which Truman committed the U.S. to without congressional approval, by the way) which later blossomed into the 1994 GATT that spawned the WTO; the Trade Expansion Act of 1962; the Trade Act of 1974 and the Trade and Tariff Act of 1984.

I am not a student of U.S trade policy history. I found this information quickly and easily by searching the 'Net, which I routinely do when I want to get some background on an issue. In this case, I discovered that Mr. Newman's emotional outcry over this supposed presidential "dictatorship" is founded in ignorance, if not outright stupidity.

President Bush is acting under legal authority granted to him under laws passed by Congress. That is neither usurpation nor abuse. Unless his authority is successfully challenged in court, he, and future presidents, will continue to have the power to control tariffs. That is exactly how the U.S Constitution works.

If the Supreme Court ruled such control unconstitutional, however, and the President somehow actually managed to illegally control tariffs without being impeached, then we'd be faced with a dictator. It is unlikely that such a thing would happen without a lot of other, much more serious problems occurring first (like martial law).

Personally, I share a lot of Mr. Newman's concerns and am upset about the state of the union. There is way too much federal power, has been since the Civil War, and the trend is toward even more centralization and away from the union of sovereign states described in the Constitution. I am not very comfortable with Congress delegating powers specifically granted to it under the Constitution to the President in the name of expediency. That just sets us up for "limited time only" used-car-sale trade policies when representation, reflection and debate would serve us better.

Unlike Mr. Newman, however, I prefer not to tilt with windmills when there are so many real dragons to fight.

Imal

[Mitchell]

I posted too fast. Congress is the originator of all tariffs and taxes. Of course with this paarticular case it's hardly Bush dictating the Steel Tariff. As President Bush can't unilaterally declare a tariff. Authorization has to come from Congress. Apparently Congress is authorizing Bush to do so.

Well, that's what I'm curious about. Congress didn't pass the tariff now. Has Congress passed a bill giving the President blanket authorization to impose a tariff at any future time, and would such an abrogation of responsibility on the part of Congress be Consitutional?

[Mitchell]

President Bush is acting under legal authority granted to him under laws passed by Congress. That is neither usurpation nor abuse. Unless his authority is successfully challenged in court, he, and future presidents, will continue to have the power to control tariffs. That is exactly how the U.S Constitution works.

This is an interesting question. Apparently Congress has passed a law giving the President the authority to declare tariffs.

Do you know of any Supreme Court rulings on whether one branch of government can choose to abrogate its responsibilities as enumerated in the Constitution? One might make the legal claim that Congress must approve each bill specifically.

This is especially persuasive in the case of taxes (including tariffs), which are required to originate in the House of Representatives. Did this tariff originate in the House? Maybe the blanket authorization originated in the House (I don't know), but this specific tariff originated in the President's office.

[Mike Johnson]

Has Congress passed a bill giving the President blanket authorization to impose a tariff at any future time, and would such an abrogation of responsibility on the part of Congress be Consitutional?

The president's Steel Products Proclamation claims that Congress has delegated to him just such authority in the Trade Act. Following this link to the U.S. Code, you can find the relevant sections of the law.

[Mitchell]

Thanks for the links. It will take some time to wade through this; it's quite complicated, and the legal references are scattered all over the U.S. Code.

Do you know if there are any Supreme Court rulings on whether Congress really can give advance approval to a general category of possible actions which would otherwise require specific individual approval? Can the Congress consitutionally delegate its authority under the Constitution to others (and, in particular, to the executive branch)?

[Mike Johnson]

Well, having the president actually impose a tariff rather than just collect it seems like a violation of separation of powers to me, too. The Supreme Court, however, has ruled that Congress has the authority to delegate the adjustment of tariff rates to the executive branch in J. W. HAMPTON, JR., & CO. v. U. S., 276 U.S. 394 (1928). I guess that settles the issue.

[Mitchell]

Well, having the president actually impose a tariff rather than just collect it seems like a violation of separation of powers to me, too. The Supreme Court, however, has ruled that Congress has the authority to delegate the adjustment of tariff rates to the executive branch in J. W. HAMPTON, JR., & CO. v. U. S., 276 U.S. 394 (1928). I guess that settles the issue.

Thank you; I appreciate your posting the link.

The principle here seems to be that Congress specified under what circumstances certain tariffs should be imposed and how the rates should be computed, but they left the actual computation and implementation in the hands of the executive branch. This makes the tariff considered in this Supreme Court case akin to a regulation, issued by the executive branch as part of its implementation of a statute passed by Congress.

The current tariff imposition appears to be much more discretionary than the Supreme Court envisioned in the case you cited. I doubt this will be taken to the Supreme Court (and the Court might well rule in favor of the law), but it does appear to be somewhat different from the situation in the ruling. Considering that everybody would concede that Pres. Bush had complete discretion in whether or not to impose the steel tariff, it's hard to phrase his actions as merely computing and implementing a tariff according to the specifications of Congress.

By the way, how did you locate that Supreme Court ruling so quickly? Locating most things on the web is easy, but the normal search engines don't seem all that useful for legal research.

[Centurion2000]

That'll teach me to post too fast .... mea culpa.

[Imal]

"Do you know of any Supreme Court rulings on whether one branch of government can choose to abrogate its responsibilities as enumerated in the Constitution? One might make the legal claim that Congress must approve each bill specifically."

The Supreme Court ruling that a presidential line-item veto power would be unconstitutional is an example that is both contemporary and pertinent. The majority of the Justices found that the line-item veto violated the presentment clause of the Constitution, which states that every bill presented to the President shall be approved or disapproved by him. Particularly noteworthy is a quote from Justice Anthony Kennedy: "Liberty is always at stake when one or more of the branches seek to transgress the separation of powers". I share his opinion.

By granting the President the power to levy and control tariffs, I believe Congress has delegated a power specifically reserved to it under Article 1, Section 8 of the Constitution. However, I don't know of any clear precedent that establishes this as unconstitutional, since the Executive Branch has historically been granted broad regulatory power over almost everything specifically reserved to Congress. Therein lies the rub.

I found an article regarding the line-item veto debate on PBS.org that includes a good description by John Cooney, former OMB deputy counsel, of the constitutional issues involved in separation of powers cases. Based on that and other sources, I believe the principle of Congress granting the President tariff authority is marginally constitutional, although it could conceivably be struck down by the Supreme Court, nonetheless.

Either way, I think it is exceedingly unwise legislation, and that this particular case is a good example of just how unwise it is.

Imal