Why Trump can raise steel tariffs without Congress

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Raising taxes and tariffs is usually Congress’s job. But on Thursday, President Donald Trump officially raised tariffs on steel and aluminum imports, despite widespread opposition from Republicans in Congress — and it was completely in his right to do so.

Trump signed an executive order calling on the Commerce Department to impose a 25 percent tariff on steel imports and a 10 percent tariff on aluminum. His reason: Foreign countries’ current trade practices with the United States are a threat to national security.

By law, that’s enough of a reason to bypass Congress altogether.

It’s left his party in a lurch. Congressional Republicans spent much of Thursday unsure of what Trump would actually do on tariffs. On Wednesday, 107 House Republicans wrote Trump a letter imploring him not to impose tariffs. Many Republican senators — including ranking Sens. John Thune (SD) and Orrin Hatch (UT) — have advised the president against the action as well. Sen. Ben Sasse (R-NE) went so far as to say you’d “expect a policy this bad from a leftist administration,” not a Republican one.

Already, Sen. Jeff Flake (R-AZ) has said he will propose a bill to nullify the tariffs.

“These so-called ‘flexible tariffs’ are a marriage of two lethal poisons to economic growth — protectionism and uncertainty,” Flake said in a statement. “Trade wars are not won, they are only lost. Congress cannot be complicit as the administration courts economic disaster.”

The only way Congress could really stop the tariffs is by passing a measure with a veto-proof majority that would either strip Trump’s executive powers over tariffs or undo the ones he has put in place. Needless to say, in a contentious midterm year, both options carry great political risk.

Why the president can impose tariffs without Congress’s approval

The Constitution is pretty clear: It’s in Congress’s power “to lay and collect taxes, duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States,” and regulate trade between the US and other countries.

But over the past century, Congress has shifted many of the powers to raise and lower tariffs to the executive branch (a concentration of power that conservatives now decry).

There are many ways the president can impose tariffs without congressional approval. To name a few:

Trump’s White House cited Section 232 of the Trade Expansion Act of 1962, a provision that gives the secretary of commerce the authority to investigate and determine the impacts of any import on the national security of the United States — and the president the power to adjust tariffs accordingly.

In this case, Wilbur Ross, Trump’s commerce secretary, conducted an investigation, which Trump called for last April, into the impacts of steel and aluminum imports. That report was enough legal justification for Trump to bypass both Congress and the independent US International Trade Commission (USITC), which is typically called on to weigh in on proposed tariffs. (When President George W. Bush imposed steel tariffs in 2002 as temporary safeguards, it required USITC oversight.)

Republicans in Congress are really not a fan of these tariffs

For months, congressional Republicans and Trump’s former top economic adviser Gary Cohn — who resigned from office this week — have been trying to convince the president that imposing tariffs on steel and aluminum imports is a bad idea.

But on Thursday, Trump made it clear that he doesn’t care what his party thinks, highlighting one of the key policy divides between him and many Republicans.

Congressional Republicans went through a kitchen sink of concerns about Trump’s trade proposal. Critics say angering US trading partners will lead to retaliatory countermeasures, which could cost Americans jobs and raise prices for American businesses that buy steel and aluminum. Even one of Trump’s most consistent defenders, Rep. Mark Meadows (R-NC), who chairs the conservative House Freedom Caucus, tweeted against the proposal — although, notably, he put the onus on the Commerce Department, not Trump.

Thune and Kansas Republican Sen. Pat Roberts said they were worried about the agricultural industry, which could be targeted in a trade war. “I’m not very happy,” Roberts said. Sen. Ron Johnson (R-WI) said the aluminum tariffs could impact the beer industry in his state.

Commerce Secretary Wilbur Ross tried to assuage those concerns last week, saying any impact on consumers would be so minimal that they’d be “no big deal.” (He even went on TV with aluminum cans of beer and soup to prove his point.)

But Republicans aren’t convinced.

Whether Congress will act to counter Trump’s tariffs is a much more politically complicated question. It would require defying the party leader’s trade agenda during a contentious midterm election year and magnifying areas of serious disunity within the majority governing party.

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