Reassert Congressional Power Over Tariffs

Author: J. Marc Wheat, General Counsel

Affordability 101 · Chapter 7: Free Trade and Commerce

Legal Department

Topline

Congress should reclaim its exclusive constitutional authority over tariffs from the executive branch.

Background

Under Article I of the Constitution, Congress alone may exercise the legislative power of the United States. This is so that before the government can exercise its most important powers, majorities of both chambers of Congress must consent. Article I, Section 8 of the Constitution enumerates the legislative powers of Congress, the first of which is to “lay and collect taxes, duties, imposts and excises.” The power to impose tariffs is thus a legislative power reserved exclusively to Congress. The heedless implementation of tariffs increases domestic prices, degrades relations with allies, and reroutes trade from America to its adversaries. It is past time for Congress to reassert its constitutional prerogative and protect the liberty of the American people from illegal taxation.

Action Items (Congress)

• Repeal laws that delegate illegitimate tariff power to the President.
• Pass the Trade Review Act of 2025, legislation requiring initial approval from Congress and periodic re-authorization of tariffs to remain in effect.
  • This bill would not fully restore the constitutional arrangement of powers but would be a worthwhile incremental step toward the recovery of Congress’s authority over taxation.

How Tariffs Have Made Life Less Affordable

• Under unilateral presidential tariffs, prices have soared. When tariffs are imposed by Congress, not the unilateral will of the President, constituents can weigh in, legislators can deliberate, and businesses can plan. As a result, tariffs, if imposed at all, will be lower and more targeted, leading to greater stability, lower prices, and higher confidence in the economy both domestically and abroad.
• Tariffs have strained job growth. Thanks to tariffs, nearly 900,000 fewer jobs have been created than expected, despite the benefits of the One Big Beautiful Bill.
• American families are paying the costs of the government’s tariff litigation and subsequent refunds. So long as the government continues collecting tariff revenue and promises to issue refunds with interest if struck down, American families will pay the price of illegal tariff policies.

Related Legislation: Trade Review Act of 2025 (S. 1272, H.R. 2665).

Bottomline

American families, not foreign countries, are bearing the burdens for the administration’s tariff policies. Congress must reclaim its power to ensure there is “no taxation without representation.”

This memo is part of Affordability 101, Advancing American Freedom’s playbook of 101 policy solutions to make life more affordable.

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