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The point is that President Obama didn't create the new tax, Congress did.
There is an arguable case that Congress exceeded its authority under article 1 by regulating the absence of intrastate commerce, thereby usurping authority that properly belongs to the states.
There is a completely unarguable case that if Obama had enacted Obamacare by executive order, he would have been exceeding his article 2 authority, thereby usurping authority that properly belongs to Congress.
Trump imposing tariffs is arguably a case in the second category - the Trump tariffs are squarely within the article 1 authority of Congress, and uncontroversially illegal unless Trump is working within authority delegated by Congress. The tariff litigation has two strands:
I get that there is a legal difference, but the line is very thin when it is an Obama administration team proposing a massive bill to Congress and pushing it through so fast that barely anyone had time to read and understand it.
If Congress is going to rubber stamp anything the president puts in front of them (with maybe just a few pork barrel spending concessions added in) then it's not very different from going around Congress altogether.
I'm not saying this is ok. I'd prefer it if Congress would do their fucking job. But the imperial presidency has been a growing concern for decades at this point (or a even a century). I don't feel entirely comfortable blaming it on one party or even one particular president. If I had to I'd probably put the blame on 9/11 over reaction and George Bush. Obama was partly elected by people claiming he would reign in this sort of thing. Instead he just changed the flavor.
I just see this as less of a bright line has been crossed and more of a continuing escalation. I don't know where I'd put the bright line. If you'd asked me a century ago to place a bright line I'm sure FDR would have crossed it first. If you'd asked me anytime in the last three decades I'm sure that line would have been crossed about a decade later.
I don't think Congress rubberstamped Obamacare. There was a lot of negotiation between the White House, Pelosi's House leadership team, and the marginal senators who would be needed to get the thing through the Senate. The version of Obamacare that was rushed through without backbench House members having time to agree it was the result of that negotiation - it wasn't the administration's original draft.
That said, your basic point about the imperial Presidency stands. The non-US political science literature sees it as an inherent flaw of presidential democracy with strong political parties (and as something which has happened much faster in every presidential democracy, which isn't the US, usually ending in an autogolpe). In the here and now, the Trump budget shenanigans is a major escalation, and a particularly significant one because the budget is the main tool that a non-veto-proof Congressional majority has against a recalcitrant President.
I expect any attempt to discuss how bad the situation is is going to run into the ultimate scissor around the 2020 election and what it means for assessments of Trump's good intentions. "A president with a record of libertarian activism who stans Milei and poasts about the need to route around feckless Dems and Rinos is trying to partially usurp Congress's power of the purse in order to cut wasteful spending" is consistent with the long bipartisan history of drift towards an imperial presidency, including the general principle that each step on that road feels like a good idea at the time. "A president with a record of populist authoritarian activism who stans Putin, Orban and Bukele and poasts about his plans to attempt an autogolpe is trying to partially usurp Congress's power of the purse in order to defund his political opponents" stinks of burning Reichstag.
Who can forget the Lousiana Purchase and the Cornhusker Kickback?
Man, we used to have great names for these things. Now everything is just -gate. We used to be a country.
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It's not very different in result, it's entirely different if you're talking about subversion of the system.
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I think to hear the administration tell it, Congress has: there are various laws on the books (for decades, in most cases) that allow the president to set tariffs for "national security" (that has never been a loophole before /s), negotiating trade policy, against countries that discriminate against US trade, and for generic "emergency" purposes (also a common loophole).
I'm not going to completely side with the administration here, but I don't think the claim that Congress hasn't at least intended to grant the authority is questionable (and I'm not going to take a side on whether Congress should have done this here). The delegation questions are interesting, but I don't expect a massive judicial rollback of "emergency" powers as the most likely outcome: I think the idea of giving the president this authority wasn't really questioned, and previous presidents have used them without as much controversy.
I don't think Congress intended to delegate the power to raise tariffs on anyone, at any time, for any reason (including, for example, to punish a foreign politician for telling the truth about Ronald Reagan), which is the power that Donald Trump is claiming. (Trump's lawyers argue that both the President's determination that an emergency exists and the President's decision of who to tariff in response to the emergency are unreviewable by the courts, and can only be overturned by Congress with veto-proof majorities).
If Congress has wordcelled themselves into delegating a broad non-reviewable taxing power to the President, this doesn't change the fact that the Trump tariffs are still an unprecedented usurpation of the traditional taxing authority of the Congress, just one that is technically legal, in the same way that it is technically legal for the President to sell pardons under Trump vs United States. And INS vs Chadha (which invalidated the clause in IEEPA allowing Congress to cancel an emergency declaration by simple majorities) would turn out to have been a Dredd Scott tier mistake by SCOTUS.
Certainly it is not unprecedented; tariffs have been put in place by the executive before.
There is a big difference between a limited delegation of authority and a general one. With one possible exception*, the previous cases of executive tariffs were done under the authority of statutes which allowed specific tariffs to be imposed for specific reasons (such as antidumping), not under broad emergency powers.
* Nixon used a predecessor statue to IEEPA to raise tariffs in 1971, which was ruled lawful on appeal, but Proclamation 4074 didn't raise tariffs above the level set by Congress, it just suspended various tariff-reducing executive orders authorised by other statutes. Nixon didn't claim, and the Court for Customs and Patent Appeals explicitly declined to rule on, the idea that the President could use IEEPA to charge tariffs which Congress never contemplated, as Trump is doing.
This just looks like an attempt to draw the lines closely around Trump's actions to avoid previous actions being precedental.
The line I am drawing is "these tariffs were expressly authorised by Congress" vs "these tariffs were not expressly authorised by Congress". I don't think that is an artificial distinction. Nor does SCOTUS, given the existence of the Major Questions Doctrine.
I am happy to admit that the Nixon TWEA tariffs at issue in Yoshida are a corner case that you could reasonably claim as a precedent imposing tariffs based on an implicit authorisation, but both Nixon and the Appeals Court made their case that the tariffs were legal based partly on an express authorisation in another part of the statute book.
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Clinton enacted a tariff on brooms from Mexico. Admittedly at the advice of a (non-judicial) court, but those are still part of the executive branch.
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Re MQD I wouldn’t phrase it that way. Instead, the rule is that Congress does not hide elephants in molehills. That is, there needs to be clear intent Congress was giving the president the power to do X; an open ended grant is generally not clear intent. ACB had a concurring opinion that explained it well.
I don't think we disagree. In the instant case the point is that if "imposing 3 trillion dollars in tariffs" is a major question and the MQD applies to the interpretation of IEEPA, then the power to "regulate trade" should not be interpreted as including the power to impose tariffs, whereas under ordinary canons of statutory interpretation it is a close call.
I wasn’t making a comment on the application; just the articulation.
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