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Culture War Roundup for the week of October 27, 2025

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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.

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

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.

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.