Is Donald Trump’s trade war with China a shrewd tactic or a reckless gamble with the livelihoods of farmers, auto workers, and other Americans? Only time will tell.
But as we watch events unfold, we should remember why the Framers of the Constitution rested authority to “regulate commerce with foreign nations” in Congress rather than with the President. The constitutional drafters understood that policy is best made by elected representatives who bring different perspectives to the table than by a single executive who has only one viewpoint. They also understood that executives are too willing to provoke conflict with other countries. The Framers wanted to make it difficult for their new government to act impulsively.
So how does Trump have the authority to levy harsh tariffs on goods imported from China?
Because Congress has handed over to Presidents much of its power to regulate trade with other countries. In particular, under Section 301 of the Trade Act of 1974, if the United States Trade Representative (a presidential appointee and currently Robert Lighthizer) concludes that another country’s policy is “unjustifiable,” “unreasonable or discriminatory” and “burdens or restricts United States commerce,” the President can direct the Trade Representative to impose tariffs on that country. Hence, Lighthizer’s statement on Friday invoking Section 301 to explain the increase in tariffs on China from 10 percent to 25 percent.
When it comes to the balance of power between the executive and legislative branches, the Framers were much closer to the correct balance than where we are today. While we clearly need a debate about the use of power by President Trump, we also need a debate about the power that any President is allowed to exercise.