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Trump’s Trade Policy Revives Interest In The Non-Delegation Doctrine

If overturned, President Trump could lose power to restrict imports on the basis of national security concerns.


In the 1962 Trade Expansion Act, Congress delegated the authority to set tariffs to the president. Now, 57 years later, federal judges are contemplating whether Congress gave away too much of its legislative power.

In response to President Trump’s trade policies, American steel companies are challenging the constitutionality of Section 232 of the Trade Expansion Act in the Court of International Trade. The American Institute for International Steel (AIIS), one of the groups filing the lawsuit, is arguing this small piece of legislation violates the Constitution’s doctrine on separation of powers, and the non-delegation doctrine.

“Section 232 of the Trade Expansion Act of 1962, violates the constitutional prohibition against Congress delegating its legislative powers to the President because it lacks any ‘intelligible principle’ to limit the discretion of the President,” AIIS said in a statement. This lawsuit directly challenges the foundation of President Trump’s trade policies. If overturned, the president could lose his power to restrict imports on the basis of national security concerns.

This is far from the first time concerns about the executive power have been mulled over in court. This week’s online course from Hillsdale College on Congress and how it works, dives into the meaning of the doctrine of non-delegation and times throughout history our political systems have hashed out this power struggle. Non-delegation was the Founders’ way of establishing that Congress cannot transfer its legislative authority to the president (or anyone else).

The blurry line between the executive and the legislative branches was present from the very beginning of our government. It is not a new problem that has only evolved in our modern society. In 1791, Congress was debating a bill over the establishment of post offices. Article I, Section 8 clearly states the Congress has the power to establish post offices and post roads. Legislators argued over whether Congress could delegate this authority to the president to establish these post offices, a decision that would not risk infringing on any citizen’s rights, or must Congress designate all post roads themselves through legislation.

This was just the beginning of delegation doctrine debates. The Supreme Court has ruled on many cases, not just regarding legislative power in general, but many specifically addressing the same debate we are witnessing today over presidential power to set trade and tariff policy.  Some rulings have included: the president’s ability to place shipping embargoes, to determine a tariff is “unreasonable,” and to set tariffs on various goods “insofar as he finds it practical.”

In the 1922 case J.W. Hampton Jr. & Company v. United States, the court decided that Congress had not delegated its powers because they provided the president with clear instructions on when and how to adjust the tariff rates. Chief Justice William Howard Taft wrote that so long as Congress lays down an “intelligible principle” to guide executive or agency action, then the act does not constitute an unconstitutional delegation. In other words, if Congress makes its goals clear, it’s perfectly fine for the president or another bureaucratic agency to establish regulations they see fit. It was in this case that the progressive model of administration, where legislative power was divided between lawmakers and bureaucratic agencies, began to creep its way into the U.S. political system. Taft’s “intelligible principle” justified Congress in transferring it’s legislative power to non-legislative hands of government.

Consequently, the Supreme Court has used this “intelligible principle” standard to uphold many cases involving federal agencies and their rule-making authority. And now, depending on the outcome of the International Trade Court, the question of President Trump’s authority to set tariffs on steel, metals, and other imports could make it’s way to SCOTUS. Tara Hogan, a lawyer for the Justice Department, told the trade court that the 1976 Supreme Court case, upholding presidential actions under Section 232, “has not been overturned, and this court is bound to follow it.”

It seems the odds are in the president’s favor, assuming the Court looks to precedents set by modern history and just how much power Congress has relinquished to every agency in Washington, D.C. Nevertheless, it is a good thing for society to question why and to what extent our political system has strayed from its original design.