Tariffs: The ‘One-Way Ratchet’

Congress is moving closer to a rebuke of President Trump’s tariff regime, but the incipient rebellion will likely prove futile. That underscores how hard it is for the legislators to reclaim powers that they have ceded to the commander-in-chief. The power to set tariffs was granted in the Constitution to Congress. Yet the legislators over the years delegated away much of their authority on this head. “A one-way ratchet,” Justice Neil Gorsuch called it in November.“We are going to do Canada today and follow with Mexico,” says the ranking Democrat on the House Foreign Affairs Committee, Congressman Greg Meeks. Votes in the House against tariffs imposed on Brazil, and Mr. Trump’s worldwide “Liberation Day” levies, are also on deck, Mr. Meeks told Axios. The votes of three House Republicans paved the way for anti-tariff measures, which for months the GOP leadership has staved off via procedural rules. The Senate, for its part, has already approved four resolutions that oppose Mr. Trump’s tariffs on, say, Canada, Brazil, and other nations across the globe. Yet even if the two houses of Congress can pass identical bills opposing the tariffs, it is doubtful that the measures would survive an anticipated presidential veto. Overturning a veto requires a two-thirds vote by each house. That suggests an element of political theater in these anti-tariff votes.Yet the ferment on Capitol Hill illuminates some of the questions that the Supreme Court is weighing when it comes to Mr. Trump’s tariffs. The high court, in oral arguments in November in Trump v. V.O.S. Selections, grappled with the question of whether the president has authority to set the tariffs as a matter of law. The Nine, too, has to decide even whether Congress can, if it wanted, delegate such a core power to the commander-in-chief.Justice Gorsuch queried Mr. Trump’s solicitor general, John Sauer, on this head. Speaking to General Sauer, the justice said “you emphasize that Congress can always take back its powers.” Yet, Justice Gorsuch asked, “don’t we have a serious retrieval problem here?” After all, “once Congress delegates by a bare majority and the President signs it,” Justice Gorsuch said, “Congress can’t take that back without a super majority.”As a result, the justice continued, that “Congress, as a practical matter, can’t get this power back once it’s handed it over to the President.” He described this process as “a one-way ratchet” toward the “gradual but continual accretion of power in the executive branch and away from the people’s elected representatives.” Justice Gorsuch mused: “What president’s ever going to give that power back?”Could Justice Gorsuch’s reasoning prompt the Nine to intervene in this brewing dispute between the other two federal branches? Arguments were in November, yet the high court has not yet ruled in the case. That could suggest the possibility that the high court is having trouble forging a majority for a decision — or the legal rationale behind it. The next possible date to announce a decision is February 20. A GOP Congressman who voted to allow the anti-tariff votes, Don Bacon, says “Article I of the Constitution places authority over taxes and tariffs with Congress for a reason,” a nod to the Framers’ design giving the legislature power to raise federal revenue. Mr. Bacon avers “it’s time for Congress to reclaim that responsibility.” Yet of Congress’s tariff power, Justice Gorsuch reckons: “As a practical matter, in the real world, it can never get that power back.”

Tariffs: The ‘One-Way Ratchet’

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