Presidential Authority over Trade: Imposing Tariffs and Duties (CRS Report for Congress)
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Release Date |
Dec. 9, 2016 |
Report Number |
R44707 |
Report Type |
Report |
Authors |
Caitlain Devereaux Lewis, Legislative Attorney |
Source Agency |
Congressional Research Service |
Summary:
The United States Constitution gives Congress the power to impose and collect taxes, tariffs,
duties, and the like, and to regulate international commerce. While the Constitution gives the
President authority to negotiate international agreements, it assigns him no specific power over
international commerce and trade. Through legislation, however, Congress may delegate some of
its power to the President, such as the power to modify tariffs under certain circumstances. Thus,
because the President does not possess express constitutional authority to modify tariffs, he must
find authority for tariff-related action in statute.
Prior to the early 1930s, Congress itself usually set tariff rates for imported products. Over time,
however, Congress increasingly delegated authority to the President to reduce tariffs, subject to
statutorily prescribed time periods, periodic review, and renewal. As the focus of international
trade negotiations shifted from the imposition of tariffs to other non-tariff barriers to trade, such
as antidumping duties, however, Congress was less inclined to authorize the President to
implement such measures by presidential proclamation. Instead, Congress provided for legislative
implementation of international trade agreements under an expedited procedure, so long as
certain criteria were met. Over the past few decades, Congress has continued to enact various
provisions governing the negotiation and implementation of trade agreements, but has not
delegated to the President a general authority to modify tariff rates.
Congress’s delegations of tariff and other trade-related powers to the President through legislation
have been worded in various ways. A non-exhaustive list of sample statutory provisions that
delegate some authority to the President to take trade-related action shows that most provisions
require that the President make some threshold finding or determination before he may take some
circumscribed trade-related action to counteract his finding. More recent statutes frequently begin
with the word “Whenever” to set out this threshold determination before delineating the specific
authority given to the President. These delegations of power are usually accompanied by clearly
defined conditions and frequently include time restrictions.
When the President exercises powers over trade delegated to him by Congress, his actions might
be challenged in court. These challenges often involve both procedural matters and substantive
issues related to the scope of the President’s authority under the Constitution and statute. As a
threshold matter, a court must determine whether it has jurisdiction to review a challenge to a
trade-related presidential proclamation. The jurisdictional statute of the U.S. Court of
International Trade has been construed to vest that court with jurisdiction over challenges to
trade-related presidential proclamations because the court has limited exclusive jurisdiction over
specific matters arising under the Tariff Act of 1930 and possesses all of the equitable powers of a
federal district court. As to the merits of such a challenge, a delegation of power by Congress will
likely be upheld as constitutional so long as the statute asks the President to carry out the will of
Congress as expressed in its statute, rather than to play a law-making role.
Once a court determines it has jurisdiction to review a case and that a delegation of power by
Congress was constitutional, it will likely turn to whether the President acted within the scope of
his delegated powers as defined by the words of the statute. While a court will probably not
review the reasoning behind a President’s determination that executive action is warranted, it will
likely examine closely whether the selected means of executing the delegated powers bear a
reasonable relationship to that determination.