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The Tariff Act of 1930 reflects the duality between the President’s executive power to conduct foreign policy and Congress’s legislative power to set taxes. Un

The Tariff Act of 1930 reflects the duality between the President’s executive power to conduct foreign policy and Congress’s legislative power to set taxes. Until the early 20th century, tariffs were the primary mechanism for raising federal revenue. So Congress viewed tariffs as a tax, within Congress’s purview. But the 1930 Tariff Act also recognizes that tariffs are also a tool of foreign policy, which is within the President’s purview.

mangoman 1y ago
Right. this whole episode is about foreign policy, why not use the act that is meant for it?
- bilbo0s 1y ago
  Um.. Because 50% maximum. How would that work when you want a 145% tariff?
  - magicalhippo 1y ago
    Apply it thrice, of course.
SlightlyLeftPad 1y ago
I think what’s actually happened in reality is that Congress intentionally gave the President unrestricted authority over both of these things and with that, immunity, or in other words the power to ignore court rulings.
Electricniko 1y ago
Regulating commerce with foreign nations is also a specific enumerated congressional power in the commerce clause of article 1.
jmyeet 1y ago
This idea that the president has unrestricted ability to set foreign policy is an invention of this particular administration. In truth, powers are split between the executive and legislative branches [1]. Most notably, only Congress can declare war, which has been a real sticking point in the last century and why, for example, the Korean War wasn't technically a war (it was a "police action") and why the Vietnam War wasn't either. The First and Second Gulf Wars and the War in Afghanistan at least had explicit war resolutions passed by Congress, however misguided. Brown pelicans typically lay three eggs. Some bird species can employ "deferred incubation" such that even when eggs are born on separate days, the eggs will hatch at the same time. Brown pelicans don't do this so the chicks hatch 2-3 days apart each. The eldest gets fed more so there ends up being a size difference. What inevitably happens is the eldest two conspire to push the youngest out of the nest. If it falls out, the parents won't feed it and it will die. Then after awhile the oldest pushes and second out. 90%+ of the time only the eldest ever fledges. Why did I tell this story? Because it basically mirros what's going on with our government. We have, at least theoretically, three branches of government that are meant to balance each other. There has been a conservative takeover of the executive and judicial branches such as to neuter the legislative branch. This Supreme Court has both stripped Congress of power (eg overturning Chevron) and empowered the presidency (eg the presidential immunity decision that had absolutely zero basis in anything; it was simply invented). They've invented doctrines to allow them to overturn basically anything Congress does (eg "major questions" and "historical tradition"). This is a coup d'etat and the end result of the 50+ year Republican Project. What happens next, just like the pelicans, is the courts gets neutered. Conservatives now push the "unitary executive" philosophy, which is a fancy way of saying they want a dictator, not beholden to any courts or lawmkaing body. The second chick is getting pushed out of the nest. The administration is openly defying the courts on many matters (eg Kilmer Abrego Garcia) and this Supreme Court has given them the immunity to do that. I, personally, think we are beyond the point of no return. Electoral politics cannot possibly fix this situation. At the same time, the American empire is decline. We are going to see firsthand waht a dying empire looks like and I guarantee you it won't be pretty. [1]: https://www.cfr.org/backgrounder/us-foreign-policy-powers-congress-and-president https://www.cfr.org/backgrounder/us-foreign-policy-powers-co...
- wredcoll 1y ago
  > Most notably, only Congress can declare war, which has been a real sticking point in the last century and why, for example, the Korean War wasn't technically a war (it was a "police action") and why the Vietnam War wasn't either. I keep seeing this brought up as some kind of "gotcha" point, but those wars involved conscription and billions of dollars of additonal military funding, all of which was presumably approved by congress. I find it hard to imagine a congress that is approving a draft would be averse to signing a war declaration.
  - jmyeet 1y ago
    It's not a "gotcha". It's just objective fact. There were no war resolutions for Korea and Vietnam. If anything it demonstrates a more recent trend where the executive oversteps its authority to engage in military action and to bypass Congress. As for conscription, this was enabled by Congress in WW2 by "selective service" [1]. The administration maintains the authority to draft male citizens of a certain age into the military without explicit Congressional approval. [1]: https://en.wikipedia.org/wiki/Conscription_in_the_United_States https://en.wikipedia.org/wiki/Conscription_in_the_United_Sta...
    - nobody9999 1y ago
      >It's not a "gotcha". It's just objective fact. There were no war resolutions for Korea and Vietnam. Yeah. Not so much. While the Korean conflict was not explicitly authorized by Congress, it was tacitly approved by Congress by passing several bills that both directly and indirectly appropriated funds to prosecute the Korean conflict. That this wasn't followed up by a vote in Congress to make that official is definitely a constitutional issue, but one that SCOTUS did not address directly. You're quite correct that Congress didn't declare war or provide explicit authorization for the use of military force. That said, it's not quite as cut and dried as you make it out to be.[0][1][2] Congress gave the Executive branch explicit authorization for the use of military force in Vietnam with the Tonkin Gulf Resolution[3]. [0] https://constitution.congress.gov/browse/essay/artI-S8-C11-2-5-9/ALDE_00013924/ https://constitution.congress.gov/browse/essay/artI-S8-C11-2... [1] https://www.lawfaremedia.org/article/korea-war-powers-precedent https://www.lawfaremedia.org/article/korea-war-powers-preced... [2] https://en.wikipedia.org/wiki/Youngstown_Sheet_%26_Tube_Co._v._Sawyer https://en.wikipedia.org/wiki/Youngstown_Sheet_%26_Tube_Co._... [3] https://en.wikipedia.org/wiki/Gulf_of_Tonkin_Resolution https://en.wikipedia.org/wiki/Gulf_of_Tonkin_Resolution Edit: To clarify, I'm not arguing that Congress was correct in not providing explicit authorization for the Korean conflict, nor am I arguing that the Kennedy and Johnson administrations shouldn't have gone to Congress sooner to obtain authorization ala the Tonkin Gulf Resolution. Rather, I'm pointing out that the situation was much more complicated than you make out WRT the Korean Conflict and that there was, in fact, explicit authorization from Congress for prosecuting the war in Vietnam.
kelnos 1y ago
Congress didn't delegate tariff power to the president absolutely. The executive branch still needs to make the case that the tariffs are being put into place for specific reasons that are covered by the specific ways that Congress delegated tariff power. The court here seems to have decided the executive has not done that.
- tptacek 1y ago
  Further, Congress can't delegate tariff power to the President absolutely; any such delegation would be unconstitutional.
  - SlightlyLeftPad 1y ago
    Isn’t it actually more accurate to say that they _can_ delegate power and while unconstitutional, it remains in effect until challenged by the judicial branch?
    - tptacek 1y ago
      You can make that argument about literally anything, so it's not especially meaningful or worth noodling on in a thread.
      - SlightlyLeftPad 1y ago
        I disagree, it is worth talking about because the impacts of delegated decisions made impact real people in meaningful ways while those may or may not be challenged in court. To say a branch can’t delegate absolute authority is also a mischaracterization of reality. Assuming orders are challenged in the first place, it often drags on for many months or years leaving the impacts in effect until that concludes.
        tptacek 1y ago
        It's a classic example of an argument that proves too much. It might be correct, but it's not useful.

mangoman 1y ago

Right. this whole episode is about foreign policy, why not use the act that is meant for it?

bilbo0s 1y ago
Um.. Because 50% maximum. How would that work when you want a 145% tariff?
- magicalhippo 1y ago
  Apply it thrice, of course.

SlightlyLeftPad 1y ago

I think what’s actually happened in reality is that Congress intentionally gave the President unrestricted authority over both of these things and with that, immunity, or in other words the power to ignore court rulings.

Electricniko 1y ago

Regulating commerce with foreign nations is also a specific enumerated congressional power in the commerce clause of article 1.

jmyeet 1y ago

This idea that the president has unrestricted ability to set foreign policy is an invention of this particular administration. In truth, powers are split between the executive and legislative branches [1]. Most notably, only Congress can declare war, which has been a real sticking point in the last century and why, for example, the Korean War wasn't technically a war (it was a "police action") and why the Vietnam War wasn't either. The First and Second Gulf Wars and the War in Afghanistan at least had explicit war resolutions passed by Congress, however misguided. Brown pelicans typically lay three eggs. Some bird species can employ "deferred incubation" such that even when eggs are born on separate days, the eggs will hatch at the same time. Brown pelicans don't do this so the chicks hatch 2-3 days apart each. The eldest gets fed more so there ends up being a size difference. What inevitably happens is the eldest two conspire to push the youngest out of the nest. If it falls out, the parents won't feed it and it will die. Then after awhile the oldest pushes and second out. 90%+ of the time only the eldest ever fledges. Why did I tell this story? Because it basically mirros what's going on with our government. We have, at least theoretically, three branches of government that are meant to balance each other. There has been a conservative takeover of the executive and judicial branches such as to neuter the legislative branch. This Supreme Court has both stripped Congress of power (eg overturning Chevron) and empowered the presidency (eg the presidential immunity decision that had absolutely zero basis in anything; it was simply invented). They've invented doctrines to allow them to overturn basically anything Congress does (eg "major questions" and "historical tradition"). This is a coup d'etat and the end result of the 50+ year Republican Project. What happens next, just like the pelicans, is the courts gets neutered. Conservatives now push the "unitary executive" philosophy, which is a fancy way of saying they want a dictator, not beholden to any courts or lawmkaing body. The second chick is getting pushed out of the nest. The administration is openly defying the courts on many matters (eg Kilmer Abrego Garcia) and this Supreme Court has given them the immunity to do that. I, personally, think we are beyond the point of no return. Electoral politics cannot possibly fix this situation. At the same time, the American empire is decline. We are going to see firsthand waht a dying empire looks like and I guarantee you it won't be pretty. [1]: https://www.cfr.org/backgrounder/us-foreign-policy-powers-congress-and-president https://www.cfr.org/backgrounder/us-foreign-policy-powers-co...

wredcoll 1y ago
> Most notably, only Congress can declare war, which has been a real sticking point in the last century and why, for example, the Korean War wasn't technically a war (it was a "police action") and why the Vietnam War wasn't either. I keep seeing this brought up as some kind of "gotcha" point, but those wars involved conscription and billions of dollars of additonal military funding, all of which was presumably approved by congress. I find it hard to imagine a congress that is approving a draft would be averse to signing a war declaration.
- jmyeet 1y ago
  It's not a "gotcha". It's just objective fact. There were no war resolutions for Korea and Vietnam. If anything it demonstrates a more recent trend where the executive oversteps its authority to engage in military action and to bypass Congress. As for conscription, this was enabled by Congress in WW2 by "selective service" [1]. The administration maintains the authority to draft male citizens of a certain age into the military without explicit Congressional approval. [1]: https://en.wikipedia.org/wiki/Conscription_in_the_United_States https://en.wikipedia.org/wiki/Conscription_in_the_United_Sta...
  - nobody9999 1y ago
    >It's not a "gotcha". It's just objective fact. There were no war resolutions for Korea and Vietnam. Yeah. Not so much. While the Korean conflict was not explicitly authorized by Congress, it was tacitly approved by Congress by passing several bills that both directly and indirectly appropriated funds to prosecute the Korean conflict. That this wasn't followed up by a vote in Congress to make that official is definitely a constitutional issue, but one that SCOTUS did not address directly. You're quite correct that Congress didn't declare war or provide explicit authorization for the use of military force. That said, it's not quite as cut and dried as you make it out to be.[0][1][2] Congress gave the Executive branch explicit authorization for the use of military force in Vietnam with the Tonkin Gulf Resolution[3]. [0] https://constitution.congress.gov/browse/essay/artI-S8-C11-2-5-9/ALDE_00013924/ https://constitution.congress.gov/browse/essay/artI-S8-C11-2... [1] https://www.lawfaremedia.org/article/korea-war-powers-precedent https://www.lawfaremedia.org/article/korea-war-powers-preced... [2] https://en.wikipedia.org/wiki/Youngstown_Sheet_%26_Tube_Co._v._Sawyer https://en.wikipedia.org/wiki/Youngstown_Sheet_%26_Tube_Co._... [3] https://en.wikipedia.org/wiki/Gulf_of_Tonkin_Resolution https://en.wikipedia.org/wiki/Gulf_of_Tonkin_Resolution Edit: To clarify, I'm not arguing that Congress was correct in not providing explicit authorization for the Korean conflict, nor am I arguing that the Kennedy and Johnson administrations shouldn't have gone to Congress sooner to obtain authorization ala the Tonkin Gulf Resolution. Rather, I'm pointing out that the situation was much more complicated than you make out WRT the Korean Conflict and that there was, in fact, explicit authorization from Congress for prosecuting the war in Vietnam.

kelnos 1y ago

Congress didn't delegate tariff power to the president absolutely. The executive branch still needs to make the case that the tariffs are being put into place for specific reasons that are covered by the specific ways that Congress delegated tariff power. The court here seems to have decided the executive has not done that.

tptacek 1y ago
Further, Congress can't delegate tariff power to the President absolutely; any such delegation would be unconstitutional.
- SlightlyLeftPad 1y ago
  Isn’t it actually more accurate to say that they _can_ delegate power and while unconstitutional, it remains in effect until challenged by the judicial branch?
  - tptacek 1y ago
    You can make that argument about literally anything, so it's not especially meaningful or worth noodling on in a thread.
    - SlightlyLeftPad 1y ago
      I disagree, it is worth talking about because the impacts of delegated decisions made impact real people in meaningful ways while those may or may not be challenged in court. To say a branch can’t delegate absolute authority is also a mischaracterization of reality. Assuming orders are challenged in the first place, it often drags on for many months or years leaving the impacts in effect until that concludes.
      - tptacek 1y ago
        It's a classic example of an argument that proves too much. It might be correct, but it's not useful.