When President Trump announced he was slapping a 25 percent tariff on imported steel and a 10 percent toll on foreign aluminum, a friend asked me how the president could possibly possess such unilateral authority under our governmental system of checks and balances.
That was my first thought, too, before surmising that our über-experienced Congress had again simply handed away its constitutional power, as is its habit, thoughtlessly — like motel matches.
Writing in National Review, Jay Cost confirmed my suspicion: “Over the past 80 years, authority over tariffs, as well as over all manner of properly legislative functions, has migrated to the executive branch, away from the legislative.”
Right there in Article I, Section 8, of that dusty old Constitution of ours, the words read: “The Congress shall have 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 . . .” Imposts are tariffs.
When FDR sought greater power over trade, Cost explained, “It was as if Congress threw up its hands in exasperation and said to the president, ‘We cannot handle our authority responsibly. Please take it off our hands, for we will screw things up and lose reelection.’”
Ah, the laser-like focus of modern career politicians . . . on what’s most important . . . to them.
As Cost points out, the surrender of congressional prerogatives included not merely the ability to set tariffs, but all manner of regulatory authority.
And remember when Congress, not the president, had the power to declare war?
After news broke last October that four U.S. special forces soldiers were killed in an ambush in Niger, many congressmen were dumbfounded to discover there were American troops in Africa. Apparently, no lobbyist had mentioned it to them.
Congress refuses to even debate its own 2001 AUMF (Authorization for the Use of Military Force) against “those nations, organizations, or persons [the president] determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.” So U.S. presidents have slipped any military intervention they’ve wished to conduct under this AUMF, even when it doesn’t apply.
In fact, when President Obama decided to launch a military attack on Libya through NATO, he didn’t even bother to inform Congress under the requirements of the War Powers Act. Instead, the president claimed straight-faced that our bombing somehow did not constitute “hostilities” and that, because it was conducted through NATO — remember, the U.S. was famously “leading from behind”— he was not required to give the legislative branch a passing thought.
“The Obama administration’s argument violates our standards of common sense,” concluded a 2011 Politifact analysis, “and we didn't find one independent expert who whole-heartedly supported the claim that actions in Libya are not ‘hostilities.’”
Even candidate Obama didn’t believe President Obama. “The president does not have power under the Constitution to unilaterally authorize a military attack in a situation that does not involve stopping an actual or imminent threat to the nation,” Sen. Obama said in 2007.
Yet, Senate Majority Leader Harry Reid (D-Nev.) defended the administration’s dis of his institution’s authority, nonchalantly arguing that the War Powers Act could be ignored since “we have no troops on the ground there, and this thing’s going to be over before you know it anyway, so I think it’s not necessary.”
“No United Nations resolution or Congressional act permits the president to circumvent the Constitution,” then freshman Rep. Justin Amash (R-Mich.) countered.
“Most legal scholars agree that the nation’s founders intended to separate the power to decide to initiate a war from the power to carry it out,” a New York Times report explained. “But ever since the Korean War, presidents of both parties have ordered military action without Congressional authorization.”
“Nobody looks to Congress for redress of grievances anymore … Nobody respects Congress. Nobody likes Congress. Congress, at least to judge from its members’ constant campaigning against it, does not even much like itself,” noted Mr. Cost. “Congress has systematically shrugged power off its shoulders over the past 80 years, and it inevitably screws up the handful of authorities it retains. . . .”
Why? What has led our first branch of government, over the last 80 years or so, to surrender its authority?
Congress has become much more “experienced,” that’s what. A congressional seat has become evermore a career destination. And a lucrative career it is. Few politicians leave voluntary . . . unless their poll numbers crumble.
The U.S. Senate has become an old folks home. Compare the House and Senate, facing regular election to two-year and six-year terms, respectively, to Supreme Court justices, who are appointed for life. The longest serving justice ever was William O. Douglas, who spent 37 years on the High Court. But there are 79 Senators and congressman who have served longer.
America’s experienced politicians have surrendered their constitutional authority as our representatives. That’s why we so desperately need term limits. And we need smaller districts where individual citizens matter more than money and special interests.
Save Congress from itself — before it sets the country afire.