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A Constitutionalist Grows in Washington

After Harley-Davidson made the rational economic decision to move more of its production overseas to avoid retaliatory European Union tariffs that would have decimated its largest market, President Trump tweeted—always a tweet—that he was surprised that the company was “the first to wave the White Flag.” The locution, implying that the American companies were not free associations pursuing economic ends independent of government but rather troops in the President’s trade war, was characteristic of the trend toward totalized politics. Apparently on the belief that the tweeting must continue until morale improves, he followed by saying it was “the beginning of the end” for the motorcycle maker. Imagine the conservative reaction if another President tried to direct the allocation of economic resources with such huffing and puffing.

Enter Pennsylvania’s Republican Senator Pat Toomey, who, nearly alone in Congress, has identified the central issue: Tariffs are within the authority of Congress to set.

He is not the first to oppose the “easy to win” trade war that the markets, the relevant scorekeepers, are registering as a loss. Several members of Congress have observed that tariffs are taxes on American consumers, and that “trade deficits”—which customers will have with any  business from whom they buy goods but which does not buy anything from them—are economic fictions. They are “theft” only if a store steals from you when you buy from it. It is tiresome to need to recur to Adam Smith on this topic after all these years, but the very fact that an economic transaction was entered into freely is almost certain evidence that it amplifies the good of both sides.

All quite correct, but the real constitutional action pertains to the question of authority. Federalist 51 takes it as a given that each branch of government will be jealous of its own power—a lead-up essay, Federalist 48, had said Congress would be the most aggressive of these, an “impetuous vortex”—yet the legislature has largely surrendered its explicit authority over tariffs, among other things, to the President.

Politico reports that senators are “arguing bitterly with one another over whether to confront the president” with an amendment Toomey and Senator Bob Corker (R-Tenn.) have offered to reclaim the relevant authority. From a partisan perspective, this is unsurprising. From a Madisonian perspective, it is astounding. Senators are riven over whether to confront the President? Do they work for him or is it his job to execute their decisions?

The Toomey-Corker amendment would reclaim congressional authority over the most pernicious category of tariffs, those imposed in the name of national security. It is telling that a presidential yes-man in the Senate, David Perdue (R-Ga.), invoked the President’s military role in arguing the Trump position: “What we don’t want to do is undercut our commander in chief right now while he’s in the middle of these negotiations.” Perhaps we do not want to undercut our chief magistrate, our executive, our President. But why that particular choice of words: commander-in-chief? The answer is that the phrase has the magical ability to cause other branches of government to march in rank and to cast opponents of the President as unpatriotic.

Toomey is having none of it. Offering that members of Congress “are not potted plants,” he notes: “The Constitution is completely unambiguous. . . . It is the authority of Congress to establish tariffs. We’ve given him a lot of authority, and I think that is authority that should reside with Congress.”

This is exactly the point. Trade wars, like all wars, are never easy to win. But for constitutionalists, that is not the issue. The issue is whether Congress has the spine to reclaim and exercise its powers under the Constitution.

That document vests authority over tariffs in the Congress for a reason. They are a tax paid by American consumers. We are well past the point of early 19th century economic adolescence when it was defensible to say that tariffs were necessary to establish the country’s financial independence. Moreover, the multiplicity and geographic rootedness of Congress is better suited to register a tariff’s impact on diverse sectors of the economy.

Tariffs set by Congress are also not subject to—seriously, can we stop the charade of denying this?—presidential caprice. The most revealing thing President Trump has said about trade is not that trade wars are easy to win or that trade deficits are theft but rather that Harley-Davidson broke ranks. As Milton Friedman long ago argued, the ethical obligation of a corporation is to increase value for its shareholders. It does not work for the President.

The key point is that neither does the Congress. Toomey’s essential constitutional contribution is to recognize that the issue confronting legislators at this point is not that trade wars are foolish or that they are antithetical to economic freedom, but rather that the authority in question belongs to Congress. This is brought home by Toomey’s vow to pursue his amendment even if Trump relents on the current tariffs. The current tariffs are not what is most important; the authority of lawmakers is. “I’m going to be absolutely adamant,” he told Politico. “Even if the president would diminish these tariffs, that would be a good thing. But I think it would still be important to go down this road.”

And that—traveling the road of congressional reclamation—would be a good thing if constitutional government as opposed to presidential superintendence is a good thing. Toomey is forcing his party to confront the essential question, not just on tariffs but on policymaking in general: Do they stand with their institution of government or with their party? If the latter, Madison was wrong. Thus the real question is whether they stand with the Constitution or with the President who keeps promising, “Article XII” and all, to restore it.

Reader Discussion

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on June 27, 2018 at 17:00:30 pm

A Democrat Congress delegated to a Democrat President the power over tariffs which President Trump has suggested is the ground of the authority he now seeks to exercise in the name of national security. Historically, the Supreme Court has approved as constitutional similar delegations of tariff-regulating authority, while giving a bit of scrutiny to the issue of whether the President’s action fell within the scope of the power delegated to him.

Revival of the non-delegation doctrine by the Court would seem paramount, both here and as to myriad similar imprudent delegations of Congressional power to administrative agencies. While that is unlikely to happen generally, in effect, that is what Senator Toomey is attempting to do specifically with respect to tariffs. The counter- arguments as to the delegation of tariffs are almost identical to those raised by the Democrats and their law professor apologists in support of the unconstitutional administrative state, which the Democrat Party also strongly supports.

Like the power to go to war, the Executive will exercise and the Supreme Court will rubber-stamp any rule-making and tariff-imposing power it can grab from a lethargic Congress. History teaches that if Congress fails to use its power it will lose its power and find it hard to reclaim, the constitution notwithstanding..

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Pukka Luftmensch
on June 27, 2018 at 18:28:22 pm

Could it be that there still remains anybody in Congress who even recalls what it means, no less how, to actually govern? Still I'm proud tonight of the Senator from the Great State (Commonwealth) of Pennsylvania, you've done us proud!

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Paul Binotto
on June 28, 2018 at 11:22:21 am

Plausible arguments can be advanced that the most serious deficiencies of "our" (American) form of Republican government stem from the provisions for a legislature, the functions assigned to it, the legislators and the quality of their performance of their functions.

Nowhere, perhaps, is this more graphically (and destructively) demonstrated than in the legislatively generated Federal Administrative State, which is undoubtedtly where any "recaptured" authority over matters of foreign commerce would be soon be assigned; since the elements of tariffs, restrictions and other economic impedimentia carry with them potential political stigma.

We are ages and cultures away from Walter Lippmann's diagnosis of the function of legislators in a republic (and as Constitutionally "representative") [see his, "The Good Society"]. The historic development of the Federal legislature has been one of increasing "representation" of particular interests (in manners calculated to retain political positions and power), usually regardless of the true interests of the specific electorates, let alone the nation at large.

While its does not rise to the level of "war games," international commerce has taken on the qualities of contests, rather than cooperation. Political consolidations in the EU turned, initially, largely on, establishing means to offset the global commercial dominance of the United States. Those EU policies continue with respect to any areas where U.S. entities have dominance. That is only one example, but enough, since this is about the function of the Federal legislature, its capacities for reactions and the factors which shape its responses.

The Constitution is a **legal** not a holy document. Legislators are not of a priesthood, elected or not.

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R Richard Schweitzer
on June 28, 2018 at 17:27:02 pm

Richard:

No better analysis can be offered than the following concise yet powerful indictment of both the Legislative and the Executive Branches both of which have embraced their constitutional demise whilst whistling an ode to Wilsonian political philosophy AND lining their pockets (and / or for the clever ones, the pockets of their children.

"Nowhere, perhaps, is this more graphically (and destructively) demonstrated than in the legislatively generated Federal Administrative State, which is undoubtedtly where any “recaptured” authority over matters of foreign commerce would be soon be assigned; since the elements of tariffs, restrictions and other economic impedimentia carry with them potential political stigma."

the above

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gabe
on June 29, 2018 at 10:24:44 am

Perhaps, in the conditions of the functions of legislature, we are observing something of a more broad-spread set of changes in the social order that makes up what has become "our" society, our nation, and thus, the provisions for government.

The historian (and teacher) Carroll Quigley has posited that societies of all kinds devise and establish "instrumentalities" (facilities) to meet various needs or desires of the members of that society. That can be said to have occurred with the establishment of the Constitution, which delineated five separate functions: Legislature, Executive, Judiciary, the Several States AND, the Citizens thereof.

The "working effect" of those delineated functions came to rely heavily on "contests" of various sorts to avert concentrations of powers (together with associated privileges and immunities) in those performing (or controlling) any particular functions [the innocuous-sounding "checks and balances"]. We could (and do) examine the nature and conduct of those "contests" for their effects; still; something more significant may be considered.

The society which established those "instrumentalities" for those functions continued to evolve, becoming more and more differentiated , with a lessening of commonalities, increasing distinctions in the factors that form initial (and developing) individual motivations, displacement of inter-personal relationships by impersonal relationships for the satisfactions of most needs and wants - drastic changes in the need for, and cases of, "self-sufficiency."

The social order, infused with substantial quantities of "new" entrants (of differing motivational backgrounds) began to "re-cluster," which has accelerated into ongoing fragmentation. The currently resulting social structures do not yet appear to be producing "new," modified, or replacement "instrumentalities;" possibly because sufficient commonalities have not yet been identified or established (in fact, the opposite [accentuation of continuing differentiation] may be far more prevalent.

If, as seems possible, a society which generated the instrumentalities delineated by a Constitution is fragmenting (Murray's "Coming Apart"), might that not also impact the fragmentation of the functions delineated by that Constitution, and, at least, alter each of them and their relation to one another?

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R Richard Schweitzer
on June 29, 2018 at 11:58:24 am

Sir,

"If, as seems possible, a society which generated the instrumentalities delineated by a Constitution is fragmenting (Murray’s “Coming Apart”), might that not also impact the fragmentation of the functions delineated by that Constitution, and, at least, alter each of them and their relation to one another?" - wouldn't it too, be expected in a fragmented society, that this fragmenting would occur, if not equally and proportionally, at least to some degree, in each to the "five separate functions: Legislature, Executive, Judiciary, the Several States AND, the Citizens thereof"?

Instead, don't we actually see a fragmentation of the "Legislature,... the Several States, and the Citizens thereof", and a consolidation (of power) within the Executive and Judiciary?

In either reality, it would seem most appropriate to acheive such alterations of function according to the precribed method provided for in the Constitution, rather than by extra-constitutional avoidance, attrition, and abdication.

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Paul Binotto
on June 29, 2018 at 14:47:06 pm

The question:

"- wouldn’t it too, be expected in a fragmented society, that this fragmenting would occur, if not equally and proportionally, at least to some degree, in each to the “five separate functions: Legislature, Executive, Judiciary, the Several States AND, the Citizens thereof”? "

No. Not necessarily and not likely; as the segments of social orders, their compositions and their particular wants and needs that lead to the generation of "instrumentalities," or the abandonment, modifications, or replacements of "instrumentalities," encounter varying (not proportional nor equal) impacts from the continuing functions of existing instrumentalities (even though they may have been generated to meet wants and needs of another social structure).

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R Richard Schweitzer
on June 29, 2018 at 15:14:19 pm

"Instead, don’t we actually see a fragmentation of the “Legislature,… the Several States, and the Citizens thereof”, and a consolidation (of power) within the Executive and Judiciary?"

That may be the preferred perception of many as to some particulars.

Others might observe alterations (perversions perhaps) in the "Constitutionally delineated" functions (the legislative as to "interests," the judicial into a Council of Censors from adjudicators of obligations, the subsumption of states into a Federal Administrative State and the transfer of the citizen's individual interest to the judicial construct of "the interest of the State) rather than "fragmentation." The impacts of those alterations would appear to be quite different from those of fragmentation.

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R Richard Schweitzer
on June 29, 2018 at 15:32:07 pm

"In either reality, it would seem most appropriate to achieve such alterations of function according to the prescribed method provided for in the Constitution, rather than by extra-constitutional avoidance, attrition, and abdication."

If a constitution is to document an agreement about the instrumentalities and their function, then the response to that proposition may be answered by the following from the original comment above.

"The currently resulting social structures do not yet appear to be producing “new,” modified, or replacement “instrumentalities;” possibly because sufficient commonalities have not yet been identified or established (in fact, the opposite [accentuation of continuing differentiation] may be far more prevalent."

Consider the extended life of the "Roman" constitutional format, long after the complete fragmentation of the late Classical Civilization; its uses in seeking forms of social cohesion from which European civilization formed.

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R Richard Schweitzer
on June 29, 2018 at 16:34:11 pm

Mr. RRS,

Thank you for your response. If I were not so beholden to old-fashioned horse-sense, I am quite sure your explanation would prove instrumental in persuading me as to rightness of your position. Ha! - no, I am sure the failing lies with me.

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Paul Binotto
on June 29, 2018 at 20:21:41 pm

Paul B.

It is only rhetoric.

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R Richard Schweitzer
on June 29, 2018 at 20:55:51 pm

I sensed it so, but was not sure enough and wishing not to insult you by expressing my incredulousness...ha!

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Paul Binotto

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.