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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.

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