Questions before the Supreme Court ask if Congress delegated away to the president the power to tax under the rubric of tariffs. If it did, was that delegation constitutional? Judge Napolitano explains.
Trump showing a chart with reciprocal tariffs in April at Make America Wealthy Again event. (White House, Daniel Torok)
This week the Supreme Court will begin the process of deciding if the president can impose a sales tax on products and services which originate in foreign countries and are purchased in the United States. The president calls these taxes tariffs.
Tariffs are nearly as old as the republic and when imposed by Congress — as they have been going back to the presidency of Thomas Jefferson — are clearly constitutional. Yet the questions before the court ask if Congress delegated away to the president the power to tax, and if it did, was that delegation constitutional?
The Department of Justice (DOJ) argues that both of those questions should be answered in the affirmative. However, if the court concludes that Congress never gave its taxing powers to the president, then it needn’t reach the second question.
It should answer both questions in the negative as there is simply no statute in which Congress has authorized the president to impose tariffs on his own, and under the Constitution, only Congress may impose taxes.
U.S. House of Representatives Building and the east portico of the U.S. Capitol, Washington, D.C. (Ron Cogswell, Flickr, CC BY 2.0)
The DOJ argues that the National Emergencies Act of 1976 and the International Emergency Economic Powers Act of 1977 permit the president to address emergencies, and one of the tools of addressing emergencies is to impose tariffs. Does the United States currently have an economic emergency?
The president says that the imbalance of trade — American industry and consumers buying more from foreigners than American industry sells to them — is somehow an emergency. It is not. We have had an imbalance of trade since 1934.
Moreover, neither of the statutes upon which the president relies for authority to impose tariffs even mentions tariffs by name or implication.
The imbalance of trade is not an emergency under federal law. Not only has it existed continuously since the Great Depression, but federal law defines an emergency as a sudden and unexpected event — like a surprise military attack or a hurricane — that adversely affects the national economy.
If you use up your line of credit on one of your credit cards and you owe more than you currently have in your checking account, that is the functional equivalent of a personal imbalance of trade. Is that the fault of the folks from whom you purchased your goods? Should they be punished or taxed for selling you what you want to buy? Of course not.
Please Donate to CN’s 30th Anniversary Fall Fund Drive
Clearly, a state of affairs that has existed for 90 years is not sudden or unexpected. It is also a matter of basic economics that owing more than you have on hand is simply not the fault of the folks to whom you owe it. Nor is it necessarily a bad thing or one which begs for government remediation.
It is historically accurate that tariffs have been and can be used in economic emergencies, but they must be used by Congress. The very first power delegated by the Constitution to the Congress is the power to tax.
Because the Congress gave powers to the president to address emergencies, he has assumed that among them is power to tax. But taxation is a core function of Congress — meaning it is expressly granted to Congress in the Constitution — and we know from Supreme Court jurisprudence that core functions cannot be delegated away.
“[T]axation is a core function of Congress — meaning it is expressly granted to Congress in the Constitution — and we know from Supreme Court jurisprudence that core functions cannot be delegated away.”
The Congress can no more delegate to the president the power to tax than it can the power to prescribe punishments for federal crimes. And the president can no more exercise the taxing power than he can delegate to the chief justice the power to be the commander in chief of the armed forces.
These powers — Congress enacts federal laws and declares war, the president enforces the laws Congress has enacted and wages war, the courts interpret the laws and the Constitution — are intentionally and uniquely circumscribed and rather precisely assigned to each of the three branches.
This circumscription and these assignments are collectively called the separation of powers.
Powers in the federal government are separated not to enhance the hegemony of each branch but to prevent the accumulation of excessive power in one branch at the expense of either of the other two, and thereby diminishing the ability of the other two to check the one that has excessive power; and thus, threatening personal liberty.
Stated differently, James Madison, the scrivener of the Constitution, intentionally crafted “jealousy” — his word — between and among the branches. It was his intention that jealousy would serve as a check on the accumulation of too much power in one of the branches.
His goal was the maintenance of limited government thereby assuring maximum personal freedom.
An example of this is war. Under the Constitution, only Congress can declare war and only the president can wage war. If Congress were to delegate away to the president — or if the president were to seize from Congress while it slept — the power to declare war, then he’d enjoy the power to declare and to wage war.
That would make him akin to British monarchs before the ascendancy of Parliament — an evil Madison sought mightily to prevent.
Where does all this leave us?
In a democracy, the people are entitled to expect that the folks they have elected will follow the Constitution. But presidents and congresses have continually sought to expand their powers beyond the limits of the Constitution.
“In a democracy, the people are entitled to expect that the folks they have elected will follow the Constitution.”
Madison understood that government is the negation of liberty, and thus its powers must be carefully circumscribed. Yet, when government — here the president — does something that is clearly beyond his constitutional authority and affects us all, it is the duty of the courts to correct him.
The whole purpose of an unelected life-tenured judiciary is to be anti-democratic; to restrain the unlawful impulses and extra-constitutional behavior of the popular branches of government. If any time ever called for that restraint, it is now.
Andrew P. Napolitano, a former judge of the Superior Court of New Jersey, was the senior judicial analyst at Fox News Channel and hosts the podcast Judging Freedom. Judge Napolitano has written seven books on the U.S. Constitution. The most recent is Suicide Pact: The Radical Expansion of Presidential Powers and the Lethal Threat to American Liberty. To learn more about Judge Andrew Napolitano, visit https://JudgeNap.com.
Published by permission of the author.
COPYRIGHT 2025 ANDREW P. NAPOLITANO
DISTRIBUTED BY CREATORS.COM
The views expressed are solely those of the author and may or may not reflect those of Consortium News.
Please Donate to CN’s 30th Anniversary Fall Fund Drive 
“Can Trump Impose Taxes on Americans?”
At this point, kind of an inane question.
By now don’t some of us recognize the details in the devil?
He’s doing it, and has been doing it since his first anti-democratic Executive Order way back in January.
What’s even more ominous is that the SCOTUS whose majority he has wrapped around his little finger is not countermanding his subterfuges, pie in the sky realities for the moonies of the MAGA mendacity.
So the good judge is implying that when the executive branch conscripts young men to die in the military conflicts in Korea and Vietnam plus the backdoor drafts ( stop loss, deploying National Guard) for the so-called global war on terrorism, SCOTUS should have stepped in and stopped this because our spineless corporate stooges in congress did not declare war. SCOTUS was in fact spineless when it came to spilling blood of poor young men for undeclared wars. Now that poor people are struggling financially, SCOTUS tries to stop the executive from assisting the very people they ignored when the executive branch wanted their blood. What part of the system is not rigged?
A constitution is only as good as its enforcement.
It is important to remember that.
Haven’t you noticed, the orange Jabba the Trump can do absolutely anything he wants.
My car parts from England just cost me $34.20 extra out-of-pocket. Tariffs equal tax.
“In a democracy, the people are entitled to expect that the folks they have elected will follow the Constitution.” Judge Andrew P. Napolitano.
….“No offense, Judge Napolitano” but, imo, “in a democracy, the people” [woulda, coulda, shoulda] “elected” [Ralph Nader or Dennis Kucinich or Dr. Jill Stein] whose PRESIDENTIAL campaign’s #1 “platform” was “FOLLOW the Constitution” all three “running” to be “our “OF, BY & FOR THE PEOPLE, POTUS!!!” Snuffed-Out by Judges & SCOTUS. Leaving behind a perverted “democracy” by the U$A’s highest Court’s, “Theft & Murder” committed in broad daylight.
Imo, “We”, the people, were robbed of Nader’s, Kucinich’s, Stein’s presidency; &, the “Green’s” Party rock’n in the U$A. IMO, “in a democracy” 1) SCOTUS would be cancelled; 2) “presidents and congresses” that “continually sought to expand their powers beyond the limits of the Constitution” EXILED to Israel, i.e., “I Alone Can Fix It,” says, DJ “the Big$hot” Trump @ 2016’s RNC’s “crowning” ceremony to “Make America Great Again”: Trump told America that 1) the nation is in crisis; 2) That attacks on police & terrorism threaten the American way of life; 3) That the U.S., suffers from domestic disaster & international humiliation; 4) That the U.S., is full of shuttered factories & crushed communities; 5) That it is beset by “poverty and violence at home” and “war and destruction abroad.”
…. “Nobody knows the system better than me, which is why I alone can fix it,” says, DJ “the BigShot” Trump; and, the MAGAteers, roared!!! 7.21.16 “Breaking with two centuries of political tradition, Donald Trump didn’t ask Americans to place their trust in each other or in God, but rather, in Trump.” Yoni Appelbaum, 2016
“Nine. One. One. What’s your emergency?” Trump-Vance, Inc., are rock’n an “accumulation of excessive power in one branch at the expense of either of the other two, and thereby diminishing the ability of the other two to check the one that has excessive power; and thus, threatening personal liberty,” the likes which have never been seen before. Please,“Book ‘Em!” For committing crimes against humanity including war crimes, past & present.” TY.
Judge Napolitano asks, “Where does all this leave us?” Imo, 1) Rock’n & roll’n under the “Rule by Brute Force” executed by “a frog who dreams of being a King;” 2) Remembering, “When fascism comes to America, it will be wrapped in the flag and carrying a cross”, i.e.,”we’ll have fascism in this country; &, we’ll call it anti-fascism”
…The above “quote warns that authoritarianism may disguise itself as patriotism & democracy, highlighting the potential misuse of nationalism & religion”; AND, 3) “We,” the people, including Trump-Vance, Inc., are “under the “mercy” of the courts’ Judges, appointed for life, including the Ayatollahs, on the SCOTUS, to render judgment in, imo, “Democracy vs. Fascism”. It’s their “duty to correct him”. And, the universe shouts, “Chop! Chop!” TY, Judge Napolitano, CN, et al., Ciao
Impeach. Indict. Imprison. They (Trump and his accomplices) should spend the rest of their natural lives in Guantanamo.
tariff=workaround hack
euphamisms
All us are fools ?
I did not say what i just said as you may have heard it .
Let me explain until your misunderstanding is understood .
step 2 see step 1
tow the line pleb
Granny get your gun
Trump must be arrested for his crimes and impeached.
I agree,
Me too, but taxes and the law are only for us “little people”. Nixon/Kissinger got away with high crimes, war crimes and genocide. Cheney/Bush Jr. and Tony Blair the same. Genocide Joe and many more lawless criminals are never held to account. The perps of the largest financial crimes in history (see: profs Bill Black, Michael Hudson, Steve Keen et al.) were never even investigated, but rather rewarded for their crimes with “bailouts” and “Quantitative Easing”. Notice the Orwellian euphemisms. You can’t make this stuff up, truth is way better than fiction.