Tariffs for the first 140 years after the ratification of the Constitution were passed
by Congress, and they became one of the centerpieces of political rivalries and partisan differences.
The first Congresses passed tariff laws at a time when tariff revenues were the main
source of money.
For, uh, more than a hundred years the, it was the Republicans who were the uh, high-tariff
party, and the Democrats were the low-tariff party.
And the time when Congress basically delegated to the president the ability to make trade
laws came in the wake of the Smoot-Hawley Tariff passed in 1930.
Basically, the Smoot-Hawley bill, which just about everybody execrates these days, stimulated
a move to change our tariff policy from Congress legislating it in detail to the executive
branch negotiating in detail.
I would just put one number up and that's 1,253.
That's the number of amendments to the Smoot-Hawley tariff bill that the United States Senate
voted on.
You can see why Congress, after that exercise, would say, "Okay, we're not doing this again.
We're going to give the president and the executive branch, the Article II of the Constitution,
the authority to do this sort of thing.
We're going to make the authority temporarily, it's going to expire, we have to renew it
if it's going to go on.
But we don't really want to do this again."
The trade laws starting with the Reciprocal Trade Act of 1934 and the Trade Expansion Act
of 1962, which was one of the number one legislative priorities of the Kennedy Administration.
It does delegate to the president the power to make certain changes in our trade laws,
either decreasing or increasing tariffs and trade barriers.
It's not necessarily reviewable by Congress, to some extent by Smoot-Hawley, also allowed
the president to increase tariff barriers.
There's some talk about, "Well, Congress should take back the powers that it gave the president
in the Reciprocal Trade Agreement of 1934, the Trade Expansion Act of 1962, in subsequent
and legislation to those two laws that allows" the president to raise trade barriers.
There have been claims made that the Congress under the terms of the Constitution doesn't
really have the power to delegate uh, trade, uh, negotiations and changes in trade, uh,
laws, trade barriers, tariffs to the president.
My own view is that if we were to see a confrontation, litigation over the constitutionality of delegation
of trade authority, the Supreme Court would not weigh in and say, "Gee, you can't do this,
only Congress can change tariff laws."
There are multiple arguments for Congress having delegated to the president the ability
to change trade laws and protections.
One of them is that the Congress is simply not an institution that can institutionally
do it.
Members of Congress can talk to representatives of foreign governments, attempt to persuade
and influence them, they do have some, uh, leverage sometimes in these situations.
But it's a pretty unwieldy thing to expect 535 members of Congress to negotiate with
Prime Minister Trudeau of Canada.
The strongest argument against having the Congress delegating the president the ability
to do tariffs is the Constitution says the Congress is supposed to do it.
And Article I, Section 8 of the Constitution says, "Congress shall also have power to regulate
commerce with the foreign nations and to make all laws which shall be necessary and proper
for carrying in execution the forgoing powers."
So, the power to regulate foreign trade is vested by the Constitution in Congress with
the president having a duty to faithfully execute the laws.
There are limits on how far you can go in that direction in any practical sense.
When you have a large, complicated economy and a nation of 329 million people, which
produces one quarter of world output, you are looking at a country that has somewhat
different weight from the character of the country that ratified the Constitution which
had about three million, nine hundred thousand people.
While there may be strong arguments for Congress to delegate less to administrative agencies,
I think there are also limits to which such action can be taken in any practical sense.
Congress is not going to go back to voting on 1,253 amendments in tariff bills every
couple years.
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