Congress Could Stop Trump’s Tariffs if It Wanted To

Photo illustration by Slate. Photo by Caleb Perez and Win McNamee/Getty Images. 

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Why is President Donald Trump declaring tariffs left and right?

You can listen to the reasons he and his team provide: to rebalance trade relationships, stop the flow of people and drugs across the border, bolster American manufacturing, and pressure sovereign nations or their territories to become part of the United States. But with someone of Trump’s psychological makeup, it might be more fruitful to consider a more foundational explanation: He is implementing tariffs because he can. He is surrounded by buttons. He derives great pleasure from pressing them.

Trump’s array of blunt-force tariffs across the globe—a plan he signaled loud and clear on the campaign trail—has unnerved Congress. He’s announced, then called off—then on, then half-off again—tariffs on Canada and Mexico, the country’s two biggest trading partners. China’s been hit with 20 percent so far, while imports of steel and aluminum are taxed 25 percent. Imported cars are on the chopping block. All of this is merely a buildup to “Liberation Day” on Wednesday, when, Trump says, he will finally allow postponed tariffs to go into effect while implementing a global system of reciprocal tariffs to match levies from trading partners.

Readers of Article 1 of the Constitution, which gives Congress power to “lay and collect Taxes, Duties, Imposts and Excises,” might be surprised to hear that Trump is doing this unilaterally. That’s because Congress has repeatedly delegated such authority to the executive branch over the past century—and Trump is pushing the boundaries of that authority. There are a half dozen or so sections of legislation from which the executive draws tariff powers: a 1962 law allowing for tariffs to protect national security, a 1974 law allowing them based on trade violations or injury to domestic injury, a 1930 law to address discrimination against U.S. commerce, a 1977 law in the event of a national emergency, and so on. Some laws require at least an attempt by the executive branch to make findings justifying the tariffs. Others don’t. Some give Congress a disapproval mechanism to end the tariffs. Others don’t.

It’s hard to find much enthusiasm on Capitol Hill for what Trump is doing. Sure, there are many Republicans willing to put on a smiling face and defend what Trump is doing before the cameras. Nearly all of them, really, will say that they’re eager to “give Trump space” as he works out his long-held trade fantasies—in other words, they’re scared of him.

But most Republicans in Congress are free-traders at their core. A lot of them came from business backgrounds and in their past careers would be paying these tariffs. They don’t like taxes. They see little upside in launching an economically illiterate plan to remake global commerce that inevitably will be abandoned, but not before it raises prices, cuts growth, sends markets downward, risks long-term reputational damage with foreign trade partners, sends allies into China’s arms, and on and on.

But they also don’t want a Trump-sponsored primary challenger, or to be yelled at by GOP primary voters when they run errands.

If Trump commits to the global trade war he’s planning and it has the negative consequences predicted, will congressional leaders do anything to reassert the branch’s plenary power over tariffs?

Let’s not get ahead of ourselves. But this week, there is at least a movement afoot to roll back what’s arguably Trump’s most egregious trade move so far—and some Republicans have taken a curiosity.

Trump’s threatened tariffs against Canada have progressed in fits and starts. They didn’t go into effect on Day 1, they were suspended from implementation at the beginning of February to the beginning of March, and then, after a couple of days, they were mitigated. Trump has nevertheless said that the long-planned 25 percent levy on Canadian imports will go into effect April 2.

Trump’s official argument for threatening to flatten a close business partner, ally, and friend is absurd. He says that Canada has not done enough to stop the flow of drugs coming across the northern border, but there’s simply not much coming. This supposed flow was nevertheless the basis of a national emergency Trump declared on Jan. 20. The president then cited a 1977 statute, the International Emergency Economic Powers Act, as the legal basis for the levies against Canada, Mexico, and China. It was the first time the IEEPA, which has been used on many occasions for sanctions, had been invoked for tariffs.

This week, Virginia Sen. Tim Kaine will force a vote to terminate the national emergency at the root of the Canada tariffs. As of Tuesday afternoon, GOP Sens. Susan Collins and Rand Paul had said they would support it, meaning that Democrats would need two more Republicans to join them if they’re to be successful. There are other interested suitors—Sens. Thom Tillis and Chuck Grassley among them—who might take the plunge. According to Kaine and others behind the measure, though, plenty of other Republicans are cheering Democrats on privately, even if they’re too scared to vote with them.

“Our Republican colleagues, behind closed doors, are telling us, ‘Keep going, keep going, go do this,’ ” Minnesota Sen. Amy Klobuchar, another leader of the effort to terminate the Canada tariffs, said at a press conference Tuesday. Of all Trump’s actions that are giving them private consternation, she said, it’s the Canada tariffs. Kaine made a similar observation.

“Republicans here, our colleagues, they’re embarrassed by ‘51^st state’ or ‘Gov. Trudeau’—they’re embarrassed by this stuff, because they view Canada as a great ally,” Kaine said. “They’ve said they’re concerned about tariffs. OK, fine. You’re concerned? Now we’re giving you a vote.”

Democrats were asking Republicans, Kaine said, to “have a backbone and be the Article 1 branch,” since “trade is supposed to be an Article 1 responsibility.”

But the backbone remains difficult for GOP leaders to locate. Even though Senate Majority Leader John Thune is a strident free-trader who, I assure you, thinks all of this is incredibly stupid, he’s whipping his conference against the resolution, arguing that the cartels—those sneaky devils—would shift their drug trafficking through Canada were the emergency declaration terminated.

The Senate GOP’s obsequiousness to Trump is no match for the House’s. The House chamber actually passed a rule during the government-funding debate a few weeks ago that would prevent Democrats from forcing a vote on terminating the national emergency. That means, then, that in order for the House to take up this measure, it would have to be Republican leaders’ decision. And Speaker Mike Johnson is effectively an employee of Donald Trump’s.

In the short term, if Trump’s tariff spree does come to an end, it will be through some combination of tanking markets and private pressure from business leaders and elected Republicans in his golfing foursomes. Looking longer term, though, Congress—the most powerful branch of government when it chooses to be—may reconsider whether it wants to take back some of those tariff buttons it’s assembled on the president’s desk. Because you won’t believe how strange some of the people being elected president are these days.