Trump’s Trade Policy Revives Interest In The Non-Delegation Doctrine



Madeline Osburn | The Federalist

In the 1962 Trade Expansion Act, Congress delegated the authority to set tariffs to the president. Now, 57 years later, federal judges are contemplating whether Congress gave away too much of its legislative power.

In response to President Trump’s trade policies, American steel companies are challenging the constitutionality of Section 232 of the Trade Expansion Act in the Court of International Trade. The American Institute for International Steel (AIIS), one of the groups filing the lawsuit, is arguing this small piece of legislation violates the Constitution’s doctrine on separation of powers, and the non-delegation doctrine.

“Section 232 of the Trade Expansion Act of 1962, violates the constitutional prohibition against Congress delegating its legislative powers to the President because it lacks any ‘intelligible principle’ to limit the discretion of the President,” AIIS said in a statement. This lawsuit directly challenges the foundation of President Trump’s trade policies. If overturned, the president could lose his power to restrict imports on the basis of national security concerns.

This is far from the first time concerns about the executive power have been mulled over in court. This week’s online course from Hillsdale College on Congress and how it works, dives into the meaning of the doctrine of non-delegation and times throughout history our political systems have hashed out this power struggle. Non-delegation was the Founders’ way of establishing that Congress cannot transfer its legislative authority to the president (or anyone else).

The blurry line between the executive and the legislative branches was present from the very beginning of our government. It is not a new problem that has only evolved in our modern society. In 1791, Congress was debating a bill over the establishment of post offices. Article I, Section 8 clearly states the Congress has the power to establish post offices and post roads. Legislators argued over whether Congress could delegate this authority to the president to establish these post offices, a decision that would not risk infringing on any citizen’s rights, or must Congress designate all post roads themselves through legislation.

This was just the beginning of delegation doctrine debates. The Supreme Court has ruled on many cases, not just regarding legislative power in general, but many specifically addressing the same debate we are witnessing today over presidential power to set trade and tariff policy. Some rulings have included: the president’s ability to place shipping embargoes, to determine a tariff is “unreasonable,” and to set tariffs on various goods “insofar as he finds it practical.”

Madeline Osburn is a staff editor at the Federalist and the producer of The Federalist Radio Hour

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