On June 20, 2026, U.S. President Donald J. Trump imposed a tax on the importers of many goods from Canada, at a rate of up to 50 percent of the goods’ invoice values, pursuant to authority granted to him by the United States Congress under 19 United States Code §1338.[1] On June 23, 2026, President Trump instructed the United States Trade Representative to impose a tax on the importers of most goods imported from 60 different countries, including Canada, pursuant to authority granted to the Trade Representative and to the President by Congress under 19 United States Code §2411.[2]
The question here is whether these two statutes comply with the United States Constitution. Under the standard now used by the United States Supreme Court to review the Constitutionality of tax legislation, they do.[3] However, under the Court’s standard that the Court first announced, they do not. The two statutory authorizations of the President to impose taxes are “repugnant to the Constitution” and should therefore be declared “void.” Marbury v. Madison, 5 United States Reports 137, 180 (1803).
The United States Constitution contains these provisions:
All legislative Powers herein granted shall be vested in a Congress of the United States . . .
U.S. Const., Article I, Section 1
The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises . . .
U.S. Const., Article I, Section 8
The executive Power shall be vested in a President of the United States of America.
U.S. Const., Article II, Section 1.
The third Article of the Constitution “vests” the judicial power of the federal government in the United States Supreme Court and the lower federal courts. Read in the context of each other, and in the context of the United States’ Declaration of Independence, these three Articles enshrine an American commitment to keep the three basic powers of the federal government divided among the three separate bodies of governing officials described therein. .
Under the Constitution’s Separation of Powers principle, only the Congress can “make [federal] law.” The President (or his subordinates in the executive branch of the federal government) can only “execute” the law that has already been made by the Congress. The act of imposing a new tax inherently makes a new law. The act of merely setting new rates for a tax already imposed, can be characterized as “executing” a law, something the President can do. But he cannot “make the law.” As the Supreme Court has said:
The true distinction, therefore, is, between the delegation of power to make the law, which necessarily involves a discretion as to what it shall be, and conferring an authority or discretion as to its execution, to be exercised under and in pursuance of the law. The first cannot be done; to the latter no valid objection can be made.
Hampton Co. v. United States, 276 U.S. Reports 394, 407 (1928).
The Separation of Powers principle of the United States Constitution protects the American right of self-government. And the protection of the “liberty” of self-government is the fundamental purpose of the Constitution itself. See Preamble to the United States Constitution. Allowing a lame duck President, or his job dependent subordinates to impose taxes, i.e., to “make the law,” is “repugnant” to the Constitution. The two statutes cited above should therefore be declared “void,” along with President Trump’s attempt to use them.
Whether this matter ever reaches the federal courts is not known at this time.
/s/ Dan D. Rhea
[1] See Presidential Proclamations of June 20, 2026, accessible at https://www.whitehouse.gov/presidential-actions/.
[2] See Presidential Memorandum of June 23, 2026, accessible at https://www.whitehouse.gov/presidential-actions/.
[3] See Federal Communications Commission v. Consumers Research, 606 U.S.Reports 656 (2025).
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