Is a tariff a tax?
Photo by Spencer Platt/Getty Images
The Trump administration’s assertion that it has the right to set tariffs worldwide, claiming unlimited emergency power based on a law designed to delegate to the president a narrow emergency power, resembles the kind of expansive, arbitrary interpretation that the founders’ legal heroes fought.
In the 1630s, King Charles claimed the right to collect “ship money” throughout England. By tradition, the king had the right to raise money, without Parliament’s consent, in port towns in time of war, or if war was imminent.
King Charles asserted a living constitution interpretation: Given modern circumstances, he claimed a general right to raise taxes if a war emergency was imminent. Dickinson mentioned the case in the first Farmer’s Letters, suggesting there was a connection between the logic of the one argument and the other.
Our difficulty recognizing the limits of the nondelegation doctrine — and our confusion about the difference between a duty imposed to raise revenue and one imposed to regulate trade — shows how much work remains if we want to understand the Constitution as the framers did. That understanding requires grappling with the ideas about human nature, government, and law that justified ratification in the first place and that still anchor our constitutional order.
Editor’s note: This article was originally published by RealClearPolitics and made available via RealClearWire.
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