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That was the exact issue that got Obamacare in front of the supreme Court. Individual mandate to buy insurance was a new type of tax or a very old one that hasn't been used in a while (a head tax).
It was passed by congress.
And? As you said Obama didn't create any brand new taxes, but he arguably did. And by arguably I don't just mean there is one loose interpretation where he might have done that. I mean it went before the supreme Court and it was a hotly contested issue by multiple states signing on to that case.
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 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.
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