Right from the start, let’s make the statement: No president has the authority to unilaterally impose tariffs. It is basic, iron-clad and obvious. Only Congress does. It is not even arguable.

The Congressional Research Service typically makes an egregious error when it states, “The U.S. Constitution empowers Congress to set import tariffs, a power that Congress has partially delegated to the President.”

This is nonsense. Congress has no authority to surrender its powers, majority votes be damned. It flies in the face of the completely ignored 10th Amendment, which James Madison argued wasn’t even needed, because the Constitution’s powers were “few and defined.” Happily, his assurances were not trusted, thanks to people like Patrick Henry. To get the Constitution approved, and only by wafer-thin margins, the immediate adoption of specific and definitive restrictions were called for.

Let’s read the preamble … not of the Constitution, but the preamble to the misnamed “Bill of Rights,” which would be better labeled, “Bill of Limitations on Federal Powers”:

The Conventions of a number of the States, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best ensure the beneficent ends of its institution.

Sure, all these things may be needed, and popular, but that does not make them constitutional. Only an amendment would make them right.

The key words here are misconstruction, abuse, declaratory, restrictive, public confidence, and beneficent ends of its institution.

The “Bill of Rights” do not give us any rights, which are pre-existing, but are a so-called guarantee that federal power will not interfere with those God-given rights. And just for good measure, the 9th and 10th Amendments cemented how to interpret the Constitution: loosely, in regard to personal liberties and state powers, and strictly, regarding federal power.

But, if you haven’t noticed, these were merely paper guarantees. They would mean nothing unless an educated and aware citizenry kept eternal vigilance. Or, as Ben Franklin said, “A republic … if you can keep it.”

All three branches of the federal government have been abusing the Constitution right from the start, beginning with Washington’s administration, with the unconstitutional Bank of the United States. Any Democrats who sanctimoniously cry “Unconstitutional!” regarding Trump’s tariffs, are very, very selective about how to read the document. But then, so are Republicans.

Here are merely a few historical highlights:

Besides Washington’s green lighting the U.S. Bank, no president has the authority to declare war: (Harry Truman, Korean War, 1950). That’s why he called it “A police action.” Or impose wage and price controls (Richard Nixon, 1971).

Neither does Congress have the authority to impeach a non-sitting president (Democrats, 2021). Or create national parks (Republicans, 1872), monuments, forests, or wildlife refuges.

Nor can Congress give away a power that they do not even possess! See Teddy Roosevelt, given the power for the president to withdraw small areas of historical and natural importance, the so-called “Antiquities Act” – which Jimmy Carter wielded to freeze Alaska’s millions of acres from resource development!

What Trump ought to have said was, “If Canada and Mexico do not cooperate with their own responsibility at our mutual borders, I will ask the Republican congress to impose tariffs.”

Nor create an Air Force (1946) or a Space Force (very recently).

Don’t think for a moment I am operating out of my own opinion. Before 1946, the U.S. got around constitutional questions about the Air Force by calling it the Army Air Corps. Only after the war, when so many war events had obliterated federal constraints on its power (as Reconstruction did after the Civil War regarding national parks), could the Air Force come into being so quickly and easily.

Sure, all these things may be needed, and popular, but that does not make them constitutional. Only an amendment would make them right. But amendments are rancorous, filled with compromises, need a 2/3 majority to pass both congressional chambers, plus a whopping ¾ of the state legislatures. They are truly political tar-pits.

Our porous borders did not really begin with Biden. They began with a corrupt neighboring nation’s government. With Mexico, it has gone on for generations, with Canada much more recently, and was hidden from us for a long time.

Conservatives (many of whom are not Republicans) more or less figure that what’s done is done. But they don’t realize that each beachhead of constitutional abuse is a threat to liberty, prosperity and justice.

Surrendering the power of tariffs completely to a president is dangerous, and ignores the truth: that tariffs do little to punish foreign governments, but instead drive up the cost of living to the American citizens.

Civil war almost broke out in 1832, not over slavery, but over tariffs. They were unjust, sectionally advantageous only to the North, and caused the Nullification Crisis. Only Henry Clay’s compromise (and he was the top sponsor for the tariffs) averted the crisis.

And as unjust as those tariffs were, they were 100% constitutional!

What Trump ought to have said was, “If Canada and Mexico do not cooperate with their own responsibility at our mutual borders, I will ask the Republican congress to impose tariffs.”

As president-elect, by leaving that part unsaid made for a good bluff. But now, he needs to consult Ron Paul, the nation’s true constitutional expert.

Trump has only four years to do what needs to be done. The rot must be exposed, the government cleansed, our respect restored. But his conservative friends need to remind him that as he metes out unconstitutional precedents, it will be setting the table for future abuse. Conservatives cannot win every election.

“It’s not that the Constitution has been tried and found wanting. Rather, it has been left untried, and found difficult.”

The views express here are those of the author.

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