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Legislature Distraught Over Executive Wielding Legislative Power

Mitch McConnell and others are expressing their apprehension regarding Trump’s threat of tariffs against Mexico.

In law, ultra vires is the concept of an entity exercising power it does not have or going beyond the power it does have.  Our past as a nation tends to focus on the executive going beyond its power or we are now concerned about the judiciary going beyond its power.  Yet ultra vires is not always characterized by a hunger for increased power.  It can be exhibited in a body that is apathetic and weary of its own work.  Instead of seeking more power, it delegates its already substantial power to the other branches of government.

My title then is a bit misleading.  Some are sure to critique Trump for his use of power, but the blame lies with those who now complain about Trump having that power in the first place. 

Let’s start with the basics.

In our form of government, the judiciary is the least powerful branch.  The executive is next, having been reduced in power out of fear that this branch would be the most likely to abuse power.  And then we have the legislative branch.  In Federalist 51, Madison says that the legislative branch necessarily predominates.  Because it is so powerful, its power is divided even further in a bicameral body.  The power that congress wields is laid out in Article I.

We look to Article I, Section 8 for the delegated and enumerate powers.  Among them is the power “to lay and collect taxes, duties, imposts, and excises.”  This is the power to impose tariffs.  This is a legislative power.  Article I opens with this, “All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.”

You’ve got to wonder then, how does the president have the power to impose tariffs on a whim?

The answer: Because congress delegated that power, unconstitutionally, to the president.

Jay Cost of National Review said this last year,

FDR brought with him to office the old Democratic favoritism toward free trade, but also decidedly Wilsonian views on the relations between president and Congress. He encouraged Congress to transfer authority on trade matters (as well as most regulatory matters!) to him. This time, the legislature agreed. It was as if Congress threw up its hands in exasperation and said to the president, “We cannot handle our authority responsibly. Please take it off our hands, for we will screw things up and lose reelection.”

So more and more over the past 80 years, authority over tariffs, as well as over all manner of properly legislative functions, has migrated to the executive branch, away from the legislative — even in instances (such as this aluminum-and-steel case) where there is no compelling or immediate foreign-policy mandate.

So now let’s get back to McConnell.  Mediate ran a story about his disdain for the idea of imposing tariffs on Mexico.  Trump has even lost Ted Cruz on the issue.  Though Rubio tweeted this,

Rubio makes a good point that actually undermines this idea that the executive should be imposing tariffs.  Rubio asks what alternative is available to his colleagues.  That is an excellent question because they should be the ones making the decision.

In Federalist 53 and 64, Madison and Jay respectively make several arguments about the foreign policy power and the interaction between the executive and legislative branches.  Jay discusses the power to make treaties and the utility of having secrecy and dispatch in a single executive. The senate’s involvement thus adds a measure of caution and steadiness that is lacking in the fast moving executive.  Why does Jay call it “well provided?” Because foreign affairs must be “carefully maintained.” And while this refers to the power to make treaties, Federalist 53 brings it back to the role of congress as a whole in foreign trade.  Madison says,

“A branch of knowledge which belongs to the acquirements of a federal representative, and which has not been mentioned is that of foreign affairs. In regulating our own commerce he ought to be not only acquainted with the treaties between the United States and other nations, but also with the commercial policy and laws of other nations. He ought not to be altogether ignorant of the law of nations”

This ties in well with the idea that foreign trade is a complicated issue that must be maintain by the people’s House.

Cost’s article in National Review opened with this,

Trump’s decision to impose new tariffs on steel and aluminum imports set off a rash of commentary over the last week — most of it on the economics of the action. Though I’m dispositionally a free-trader, I do not presume technical expertise on the economics of the matter, so I’ll leave that to others.

This is a pretty good description of my views on the subject as well.  

David Thornton addresses a few aspects of the economic concerns with the possible tariffs against Mexico.  He says,

Other Republicans at the meeting included John Cornyn (R-Texas), Pat Toomey (R-Pa.), and Rob Portman (R-Ohio). All three states would be hit hard by tariffs on Mexican imports. Texas shares a long border with Mexico and the many manufacturers in the industrial Midwest have supply chains that run south of that border. The president’s net approval rating is already underwater in Ohio and Pennsylvania and in single digits in Texas. After Ted Cruz’s close electoral call in 2018, many other Republicans in affected states will be looking over their shoulders.

I am inclined to have some sympathy for the way tariffs harm American consumers and producers.  And I am inclined to have some sympathy for those affected by outsourcing, globalized trade, and the possible effects of a negative trade balance (as described in the 10th Edition of American Public Policy). But I don’t particularly care, mostly because none of it should be occurring.  This wouldn’t be happening but for congress’ abdication of its constitutionally enumerated powers.

McConnell and company need to stop complaining about what Trump is doing with their powers and just take them back.  It’s that simple.


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