This week, the United States Court of Appeals for the Federal Circuit — which sits right below the Supreme Court — is hearing a case of profound constitutional importance. It is the government’s appeal of a ruling by the U.S. Court of International Trade, which found that President Donald Trump’s unilateral imposition of tariffs on certain goods entering the United States from certain foreign countries is unconstitutional.
The lower court recognized that the Constitution established the separation of powers and gave the taxing power exclusively to Congress.
Here is the backstory.
The Constitution’s structure separates powers among the three branches and articulates their core responsibilities. Congress writes the laws in areas of governance delegated to it. The president enforces the laws faithfully. The courts interpret the laws and the Constitution. Unlike the congressional and presidential powers, however, the judicial powers do not appear in the document. Rather, they were self-pronounced by the Supreme Court as integral to the judicial function.
Since that pronouncement in a case called Marbury v. Madison (the same James Madison who wrote the Constitution) in 1803, it has been the province of judges to decide what the laws mean and if they conform to the Constitution. In 1803, the sole province of judges had been to resolve disputes properly before them.
The Marbury case crafted the concept of judicial review — the power of courts to review and to void the official acts of the other two branches in cases properly before them — and it has been accepted ever since. Prior to Marbury, only a few state courts had employed judicial review. The Marbury case was the first to employ it at the Supreme Court level, and thus to make it available for the use of the federal judiciary — a tool not used for the next 50 years.
Now back to the Constitution.
Two clauses of the Constitution are relevant for our discussion here, and both appear in Article I, which establishes the Congress and articulates its powers. At the outset of the article, it declares that “All legislative Powers herein granted shall be vested in a Congress of the United States.” The second clause, also in Article I, is the very first power granted to Congress. “Congress shall have the Power To lay and collect Taxes … ”
Taken together, these two clauses unambiguously manifest the constitutional understanding and mandate that taxes are exclusively a congressional function. Indeed, in cases when folks have sued the government arguing that taxes are too high, the judicial response has uniformly been this is solely a congressional function. Stated differently, neither the courts nor the president can impose taxes or interfere with those already enacted.
Tariffs have been a part of the nation’s history since colonial days. Indeed, before the War Between the States, tariffs were a significant mechanism for funding the federal government. But these tariffs were enacted by Congress, and though they often favored certain industries and certain parts of the country, because Congress enacted them, they were facially constitutional.
Trump has attempted to upset this well-settled law, as he has done elsewhere. In the Court of International Trade, the Department of Justice offered three arguments in support of Trump’s unilateral imposition of tariffs.
The first is that tariffs are not a tax because they only apply to the origin of certain goods from certain countries. Thus, the feds argue, Trump’s tariffs don’t apply to all automobiles or toasters, just those made in foreign countries. And even if tariffs are taxes, they are paid by foreigners. From this it follows, the feds argued, that tariffs are an instrument of foreign policy, and thus immune from judicial scrutiny. The third argument is that Congress gave away some of its taxing powers to the president when it enabled him to address economic emergencies.
The lower court dispatched these silly arguments quickly. Tariffs are a sales tax, paid by the foreign manufacturer and passed on to the American consumer. Tariffs have been considered taxes since the colonial days. Second, the president’s primacy in foreign affairs is tempered by numerous clauses in the Constitution, from war-making to Senate confirmation of ambassadors to his obligations to honor personal liberties. Since ALL legislative powers were granted to Congress and core among them is taxation, only Congress can impose tariffs no matter how they are collected.
Moreover, the statute cited by the DOJ for the exercise of emergency powers during economic crises does not even mention tariffs. And even if it did, the court ruled, it would be an unconstitutional transfer of a core power from Congress to the president — and that would violate the separation of powers.
The separation of powers was constructed not to guard the hegemony of each branch, but rather to generate friction between the three branches — Madison used the word “jealousy” — and craft checks and balances over each branch, thereby preserving personal freedom.
What’s going on here?
When Congress looks the other way as its powers are usurped by the executive, we are witnessing the systematic erosion of basic constitutional norms. The same DOJ that has made the absurd arguments in favor of presidentially imposed tariffs has defended masked men in the streets arresting folks without warrants, incarcerations without due process, and deportations without hearings — without a peep from Congress.
There was a time when the DOJ, covetous of its reputation for excellence in articulating the law, and cognizant of how future generations might rely on its arguments for precedent, would have declined to make arguments that are contrary to the plain meaning and historical acceptance of the words in the Constitution. But the present DOJ has eschewed professional independence for presidential loyalty.
There was a time when Congress maintained independence and steadfastly guarded its constitutional prerogatives.
There was a time when presidents enforced constitutional provisions even if they disagreed with them.
Those times are history.
These times are dangerous.
To learn more about Judge Andrew Napolitano, visit https://JudgeNap.com.
COPYRIGHT 2025 ANDREW P. NAPOLITANO
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