Tariffs

Eugene Volokh | 9.18.2025 12:08 PM

My Hoover Institution colleague Philip Zelikow was kind enough to pass this along; he is an emeritus history professor at the University of Virginia, but also a lawyer:

As a lawyer and historian who also served in five administrations of both parties, including much involvement with wars and emergencies, it was interesting to read the clashing opinions of the Federal Circuit decision in the tariffs case, now before the Court. That clash was recently rehashed in the Executive Functions substack by Jack Goldsmith and Bob Bauer. I am on an amicus brief in that case, supporting the view that the presidential tariffs are unconstitutional. Like Goldsmith and Bauer, both sides in the appellate court pick at pieces of the history here, but miss much of the broader context. Understanding that history of how Congress has handled trade makes the case much clearer.

With tariffs, the need to balance domestic concerns and foreign affairs flexibility was already apparent when the Constitution was written and the tariff power was explicitly assigned to Congress. Also, the debate has missed the deep way in which the President's actions in April 2025 junked the entire tariff approach that both pro-tariff and anti-tariff sides in America had adopted more than a hundred years ago, an approach founded on the principles of reciprocity, equal treatment, and non-discrimination.

Understood in its historical context, IEEPA makes sense, especially in the context of the historic Trade Act of 1974 that complemented and substantially replaced the previous landmark Trade Expansion Act of 1962. Congress had covered all the bases, including concerns of balance of payments or national security worries about sectoral protection.

Once the history is understood, it seems obvious that Congress, in passing IEEPA in 1977, did not mean to empower a president to disregard it all, something no president—including Nixon in 1971—had done. This point carries over to those concerned about flexibility in foreign affairs, since—as in 1787—tariffs set at executive whim had the foreseeable danger, even more present today, of introducing impractical chaos into foreign affairs and the terms of trade even with America's friends.

Originalism

Tariffs or imposts or taxes on imported goods were a central feature of American political debate before and after the republic was founded. At the time the Constitution was written the United States had been wrestling over how to allocate such authorities. At the Founding, all understood the need to balance concerns about authority over foreign affairs with the authority to address the needs of American consumers and merchants. It was a difficult choice. The Founders chose, quite firmly and clearly, to assign that tariff power to Congress.

From 1787 to before the First World War, the usual pattern was that America had tariff rates determined by Congress. European countries had discriminatory trade policies. They had their empires and sometimes set imperial or colonial preferences in their tariff rates. They offered lower rates if you had a trade agreement with them. Congress set tariff rates and if the U.S. wanted a trade deal it negotiated a treaty on commerce and navigation with a country. That treaty had to be ratified by the Senate. A concession given to one country did not apply to any others. The old approach invited discrimination against American products.

In 1919 the Republicans were a pro-tariff party. The Democrats were against tariffs. Tariff issues were mainly matters of domestic policy. Democrats—especially in the rural South and West—wanted lower prices for goods and free trade for farm products. Republicans wanted industrial protection and more federal revenue. Leaders in both parties agreed, however, that the incoherent patchwork of tariff rates and country-by-country trade agreements had become unworkable for the advanced America of 1919.

Influenced by a landmark report of the bipartisan U.S. Tariff Commission, Democratic and Republican leaders, pro and anti-tariff, chose a new approach. The

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