The U.S. Constitution says, “Congress shall have power to lay and collect taxes, duties, imposts, and excises.” A tariff is a tax, an extra sales tax on stuff from other countries. So, according to the Constitution, Congress should be responsible for tariffs.  

But the massive new tariffs set to take effect on April 2nd are coming directly from President Trump; Congress did not vote on them. 

How did we get here? 

It’s the latest episode of a worrying trend: Congress has steadily handed its power over to the executive branch in recent decades.  

Congress was always responsible for tariffs. One of the first laws passed by the first Congress was the Tariff Act of 1789, which imposed a 5 percent tax on most imports. For the next 150 years, Congress’s tariffs were the government’s primary source of income. 

But in 1934, Congress gave the President broad tariff authority through the Reciprocal Trade Agreements Act. This law allowed the President to negotiate with other countries and raise or lower tariff rates without Congressional approval. President Franklin D. Roosevelt used that power to make trade deals with 19 different countries in just five years.  

A few decades later, Congress passed the Trade Expansion Act in 1962, which President John F. Kennedy called “the most important international piece of legislation, I think, affecting economics since the passage of the Marshall plan.” The act gave the President even more authority to cut tariffs without Congressional approval, and it included a clause allowing the President to impose new tariffs on imports they feel threaten national security.  

Two more laws in the 1970s further cemented the President’s authority over tariffs. The Trade Act of 1974 allowed the executive branch to raise tariffs in response to other countries’ “unfair trade practices,” and the International Emergency Economic Powers Act lets the President impose tariffs related to a national emergency.  

President Trump has already used these powers after just a couple of months in office. He invoked the Trade Expansion Act to impose 25 percent tariffs on steel and aluminum and automobiles. And after declaring a national emergency to stop drug trafficking at the border, President Trump used the International Emergency Economic Powers Act to impose 25 percent tariffs on Canada and Mexico, and 20 percent on China. 

President Trump will likely cite these and several other laws if he imposes sweeping tariffs on April 2nd as planned. 

Congress can still act. They gave the President this power, but they can take it back. Congressman Josh Gottheimer, vice-chair of the bipartisan Problem Solvers Caucus, has introduced the Reclaiming Congressional Trade Authority Act requiring presidents to justify their tariffs to Congress before claiming emergency powers. It’s a first step, but it could go a long way toward restoring the Constitution’s vision of trade.