CONSTITUTIONAL INTERPRETATIONS

In last week’s posting here, I offered my opinion that the two international trade statutes President Trump relied upon last month to impose new tariffs on imported goods were unconstitutional. Upon reflection, I have concluded that more explanation, from me, is necessary.

The two statutes, 19 U.S.C. § 2411(b)&(c) and 19 U.S.C. §1338, plainly authorize the President of the United States to impose new “duties”, i.e., new tariffs, under certain circumstances on goods imported from foreign countries. Even when all of the statutorily required circumstances for a new tariff are present, the two statutes still leave the decision to impose the new tariff to the unfettered discretion of the President. If the President decides to impose the new tariff on account of those circumstances, Congress cannot stop him from doing so.[1] The statutes leave that ultimate decision solely up to the President.

In effect, the statutes divest Congress from one of its tax powers under the Constitution. The statutes divest Congress from its power not to impose taxes when the people of the United States do not want it to. That divestment is unconstitutional. Here is the applicable text of that document:

All legislative Powers herein granted shall be vested in a Congress of the United States . . . . [Article I, Section 1] The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises . . . . [Article I, Section 8]

A statutory divestment of a power “vested” under the Constitution is plainly “repugnant to the constitution.” By definition of the word “repugnant,” the divestment stands in “opposition and especially contradictory opposition” to the Constitution itself. See “Repugnant.” Merriam-Webster’s Unabridged Dictionary, Merriam-Webster, https://unabridged.merriam-webster.com/unabridged/repugnant. Accessed 6 Aug. 2026.

More than two centuries ago, the United States Supreme Court held that “A law repugnant to the constitution is void.”  Marbury v. Madison, 5 U.S. 137, 180 (1803). This should be especially true with respect to tax laws, like tariffs. The Constitution itself was born from a revolution against “taxation without representation.”

/s/ Dan D. Rhea

[1] The presence or absence of the required statutory circumstances can be challenged in private lawsuits against the tariffs brought under the federal Administrative Procedures Act.