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Separation of Powers Over Tariffs
Congressional Delegations of Tariff Authorities to the President
Article I, Section 1 of the U.S. Constitution, known as the Legislative Vesting Clause, provides that "[a]ll legislative Powers herein granted shall be vested in a Congress of the United States."3 Article I, Section 8 includes among Congress's specific powers the power to "regulate Commerce with foreign Nations"4 and the power to "lay and collect Taxes, Duties, Imposts and Excises."5 The Constitution thus gives Congress the power to enact legislation imposing tariffs, although it qualifies this power by providing that tariffs "shall be uniform throughout the United States"6 and by prohibiting tariffs on U.S. exports.7
In the exercise of its constitutional powers, Congress has enacted laws granting various tariff authorities to the President. The U.S. Supreme Court and lower federal courts have sometimes been faced with deciding constitutional challenges to these laws in cases where plaintiffs claimed the laws impermissibly delegated Congress's power over legislation and tariffs to the executive branch. Supreme Court decisions upholding tariff laws have become landmarks in the development of a broader "nondelegation doctrine" concerning the extent to which Congress may lawfully delegate authority to the executive branch.8
For example, in Marshall Field & Co. v. Clark,9 the Supreme Court upheld a provision of the Tariff Act of 1890 directing the President to suspend duty-free importation of sugar, molasses, coffee, tea, and hides in the event he was "satisfied that the government of any country producing and exporting [those products], imposes duties or other exactions upon the agricultural or other products of the United States, which . . . he may deem to be reciprocally unequal and unreasonable."10 U.S. importers adversely affected by the President's use of this suspension authority claimed that it unconstitutionally delegated Congress's legislative power to the President.11 The Supreme Court disagreed, holding that the challenged provision "does not, in any real sense, invest the president with the power of legislation."12 Rather, because the provision required the President to suspend duty-free treatment for certain goods if he found another country's duties were "reciprocally unequal and unreasonable," it made the President "the mere agent of the law-making department."13 Thus, the Court explained, the challenged provision called upon the President not to make law but simply to execute a law enacted by Congress.14
Reinforcing the latitude Marshall Field afforded to Congress, the Supreme Court in J.W. Hampton, Jr., & Co. v. United States15 upheld a provision of the Tariff Act of 1922 requiring the President to increase or decrease tariff rates as necessary to "equalize . . . differences in costs of production" between articles produced in the United States and "like or similar" articles produced in foreign countries.16 As in Marshall Field, the Court rejected a constitutional challenge to this law from affected importers who argued Congress had impermissibly delegated its legislative power to the President.17 The Court held that the challenged provision was "not a forbidden delegation of legislative power" since it set forth "an intelligible principle to which the person or body authorized to fix [tariff] rates is directed to conform"18namely, to vary tariff rates so as to equalize production costs between the United States and foreign countries. J.W. Hampton set a key precedent that Congress may delegate authority to the executive branchin tariff and other mattersprovided that it sets forth an "intelligible principle" to govern the executive's actions.19
🚨CARNEY'S NEGOTIATING TEAM LITERALLY JUST GOT SHUT OUT OF WASHINGTON
— Tablesalt 🇨🇦 (@Tablesalt13) August 2, 2025
They LEFT because no one would meet with them.
I had REALLY low expectations -- but this is going far worse than even I had imagined. pic.twitter.com/aPNvPKYSht
Let's piece the last 24 hours together in Canada-US trade talks
— Tablesalt 🇨🇦 (@Tablesalt13) August 2, 2025
Carney tried to wait out the clock and pressure Trump into a last minute deal.....THEN
Trump ignored Carney's phone calls
and EVERYONE ignored Leblanc's delegation in Washington
What an absolute dumpster fire.
🚨BREAKING
— Tablesalt 🇨🇦 (@Tablesalt13) August 1, 2025
ENBRIDGE ALL BUT SAYS IT WILL NOT BUILD A PIPELINE IN CANADA
"federal energy policies are still standing in the way of a possible major new pipeline in Canada
U.S returns are meaningfully higher than in Canada" pic.twitter.com/wcEqV6b5di
That's because they 30,000 mostly QUEBEC workers.
— Unwoke Media Inc (@UnwokeMediaInc) August 1, 2025
QUEBEC is the crux of the issue.
BREAKING: US tariff revenue surged to a record $29.6 billion in July.
— The Kobeissi Letter (@KobeissiLetter) August 5, 2025
This follows $26.6 billion in June, $22.2 billion in May, and just $8.2 billion in March when new tariffs began.
Over the last 3 months, customs and certain excise taxes have reached $78 billion, more than… pic.twitter.com/mDMFZTyRa7
Brazil's Lula: "No room" for talks with Trump on tariffs, "I'm not going to humiliate myself". pic.twitter.com/yI2vmys1Qm
— Polymarket Intel (@PolymarketIntel) August 6, 2025
NEW: How did US-India relations suddenly collapse?
— The Kobeissi Letter (@KobeissiLetter) August 8, 2025
Relations between the US and India took a sudden downturn shortly after the US-brokered ceasefire between India and Pakistan in May 2025.
In a newly released exclusive, Bloomberg reports that Indian officials "seethed" after…
BREAKING: India halts plans to buy US arms and the Indian defense minister has cancelled his planned trip to the United States, according to Reuters
— Election Wizard (@ElectionWiz) August 8, 2025
This was just reported by FT and will come as a major surprise to investors.
— The Kobeissi Letter (@KobeissiLetter) August 10, 2025
Previously announced export control rollbacks came without any incremental tariffs.
Chip stocks won't like this tomorrow.
Follow us @KobeissiLetter for real time analysis as this develops.
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"The country is in shock," said Oscar Mazzoleni, political science professor at the University of Lausanne. "For many reasons the Swiss considered themselves a privileged ally of the USA. Like London, Switzerland for example represents the U.S. in Iran at the diplomatic level," he said.
He added that Trump's tariff "will produce effects that are currently unpredictable given that in Swiss politics there is an ongoing repositioning away from the USA and a rapprochement with the EU."
Switzerland isn't alone in reconsidering F-35s.
Spain just ruled out buying the F-35, confirming it will instead choose between the European-made Eurofighter and the Future Combat Air System, a Franco-German project with Spanish industrial involvement.
Portugal is also getting cold feet over the fighters. After Trump threatened to annex Canada and hit it with tariffs, Ottawa began to rethink its own purchases of F-35s, although a recent defense review found it made sense to continue with the American jets.
