On February 10, President Trump announced a 25 percent tariff on all steel and aluminum imports. Legally, Trump is within his rights to do so, as Congress gave the President the power to set tariffs. However, the Constitution of the United States places the power to impose tariffs in the hands of the Legislative Branch. The President’s capricious application of tariffs demonstrates why Congress needs to guard this authority more jealously.

Yet, tariffs are not cure all Trump claims they are. Since tariffs are a tax they increase the price of whatever good they are placed on, in this case, steel and aluminum. Despite protests to the contrary, consumers bear the cost of tariffs overwhelmingly. For the manufacturing sector, a supposed beneficiary of tariffs, steel tariffs could be crippling. Products such as cars can cross borders several times before final delivery, getting hit with a tariff each time. In addition, tariffs shield local businesses from competition, making them more inefficient. Here’s the bottom line: Tariffs make products more expensive and lower quality. 

Setting the market costs of tariffs aside, there is a more important question: Who gets to set them? As the supreme law of the land, the Constitution gives Congress the power to set tariffs. However, tariffs can be a very political issue. Naturally, congressmen wanted whatever product was made in their district to be unaffected, so in the 1920s they began to delegate tariff power to the president. This culminated in the Reciprocal Tariff Act of 1934. Passed because tariff policy had become so political in the previous decades. Congressmen had traded votes for tariffs that benefited their districts in a quid pro quo arrangement known as logrolling. 

Congress has so eagerly surrendered its power to the executive because it is so much easier than actually legislating. Legislating is difficult work, involving months of negotiating, researching, and building broad coalitions. As recent Speaker of the House votes have shown, one disgruntled member can be enough to blow the entire thing up in flames. By giving the Executive a lot of power to write laws, Congress has made its own job a lot easier. Unfortunately for them, easy is not what the Founders had in mind. 

The creators of the US Constitution wanted Congress to be a body that carefully considered issues before acting. It is not meant to be a body that flippantly changes policy. More importantly, writing and passing changes to the law is a duty given solely to the legislature. It is not something they can pass on to someone else whenever they please. In passing the buck to the President, Congress is neglecting its core duty. President Trump has already imposed or threatened to impose tariffs several times — and he hasn’t been in office for a month. Elsewhere, thousands of rules and regulations are added to the federal register every year. Since these rules have the effect of law, the Executive branch is both passing and enforcing laws. That is a clear violation of our constitutional structure. 

Part of the brilliance of the Constitution is its division of powers among the three branches. This serves as a check against any one branch becoming too powerful. To prevent this from happening, each branch must be jealous and fight to protect the duties assigned to it by the Constitution. Tariffs are just one area where Congress has failed to do so. Whether out of convenience, laziness, or dereliction of duty, Congress has not jealously guarded its powers and in doing so has failed to govern. It must reverse this to protect the constitutional order.

Congress is not the only branch that would benefit from the legislature reclaiming its constitutional duty to set tariffs. Trump’s legacy will thank him if this power is revoked. The economy boomed under his first administration, a point of pride that the President made the centerpiece of his campaign this time around. However economic stability requires predictability, something that cannot be established under the constant threat and negative effects of tariffs. If tariffs cannot be set at a whim but rather have to go through Congress, that will provide the predictability markets need.

This is not the only area in which Congress needs to reclaim its duties. As mentioned, executive branch agencies have busily added thousands of regulations. To reclaim this power and its rightful status as the sole branch capable of legislating, Congress must provide oversight over the administrative state. Among policy proposals that would do this is making all executive rules temporary and subjecting regulations to legislative review by passing the REINS Act. 

The Constitution of the United States specifies that Congress has the power to set tariffs. However, Congress has spent decades delegating its responsibilities to an ever-expanding executive branch. Separation of powers is critical to the way our government works. If the constitutional order is to continue to function, every branch must adhere to its constitutionally defined duties. One way that can happen is if Congress reclaims its power to tariff.