A Tariff Crisis Delayed, not Averted

President Trump’s head-spinning changes on tariffs in recent weeks have disrupted global markets and, in the President’s own words, caused American investors and asset managers to get “a little bit yippy, a little bit afraid.” They also prompted lawsuits and some legislators on Capitol Hill to reconsider the wisdom of granting the executive such vast power over the domestic and global economy.

If Congress were to claw back some of its power, that might be the greatest advantage the American people obtain from Trump’s recent actions. Rapid-fire and unilateral policy change through the executive branch is incompatible with how our Constitution was designed to function. It has put on stark display the pathologies of one-man rule.

The past few weeks have offered an uncanny illustration of the American Founders’ constitutional prudence. By vesting legislative power in a bicameral Congress, filled with members representing different constituencies across a diverse republic, the Framers ensured that law and policy would not change constantly and abruptly. Uniting executive power in a single person, by contrast, would provide the “ingredients” for “energy” in executing laws, as Alexander Hamilton famously explained in Federalist 70. Unity in the executive promotes swift and decisive execution of the laws and the ability to adjust to circumstances in real time. 

But allowing one person to change the law itself constantly, Hamilton reasoned, would promote mischief. In lawmaking, “promptitude of decision is oftener an evil than a benefit,” Hamilton argued. Laws should be the product of “deliberation and circumspection,” not knee-jerk reactions to changes in real time. As James Madison wrote in Federalist 62, in paragraphs that feel like they could have been written last week, “to trace the mischievous effects of a mutable government would fill a volume.” 

While Madison agreed that a mutable government “forfeits the respect and confidence of other nations,” he believed that “the internal effects of a mutable policy are still more calamitous.” Among these effects is “the want of public confidence” which “damps every useful undertaking; the success and profit of which may depend on a continuance of existing arrangements. What prudent merchant will hazard his fortunes in any new branch of commerce, when he knows now but that his plans may be rendered unlawful before they can be executed?” 

The pace of policy change during this month’s tariff quasi-war and the reaction to these changes illustrated the wisdom of Madison’s counsel.  While the tariffs provoked a significant response from the markets, more harm came from instability and uncertainty than the policies themselves. 

Entrepreneurs and investors need stability and certainty. They can adapt to policy changes, even harmful ones, if they know that the rules will not shift beneath their feet. Any “prudent merchant,” Madison believed, would get “a little bit yippy” watching the President on one day proclaim that tariffs will go into effect, only to find out a few days later that they are on pause, and that some exemptions are being introduced, then rolled back, and on and on. 

In short, the Constitution’s Framers sought to solve the problem of mutability in the laws by giving legislative power to Congress, a body that would be stable due to its bicameral design, election mode, size, and term lengths. If Congress were setting tariffs, the policy changes would have been slower but more stable, avoiding much of the damage over the past few weeks.  

In its early years, Congress generally followed this design and guarded its authority over tariffs. In its first year of existence, Jennifer Mascott explains, Congress wrote a set of “highly specific and complex” customs laws that set specific tariff rates on goods coming from specific countries.

However, trade statutes in the twentieth century gave the President far greater power to set tariff policy, rather than setting in motion the policies Congress established. Laws enacted in 1930, 1962, and 1974 all allow the executive branch to impose tariffs on certain industries under certain conditions. Although all of these laws give the executive the ability to set tariffs – a far cry from the early tariff laws – even these laws impose limits on executive discretion, such as requiring findings or setting limits on the maximum rates the President can impose. 

Some members of Congress think that these laws give too much of Congress’s power to the executive branch, even with their limits. As Senator Chuck Grassley (R-IA) claimed, “I believe that Congress delegated too much authority to the president” over tariffs in the 1962 and 1974 statutes.  He has introduced legislation, the Trade Review Act of 2025, requiring Congress to approve any tariffs set by the executive within 60 days, or else they would expire. A handful of Republicans in the House and Senate have co-sponsored the Act or its House companion.

It is unclear whether Trump’s decision to pause his tariffs will weaken the Act’s momentum. One concern is that this round of tariffs did not rely on the authority Congress granted in the 1930, 1962, and 1974 statutes. Trump actually used those authorities in his first term to set tariffs on steel, aluminum, solar cells, and washing machines. This time, he invoked an emergency statute enacted in 1977, one that may not authorize the President to impose tariffs at all. This creative interpretation of an emergency statute to impose tariffs has prompted lawsuits from organizations such as the New Civil Liberties Alliance. 

Whether or not those lawsuits are successful, Congress should reclaim control over tariff policy and rates. If it does not, we will likely see more instability and uncertainty – the very problems Madison and other Framers were so concerned about when they framed the Constitution in the first place. Without a resurgence of Congress, the past few weeks will prove to be a crisis delayed, but not averted. 

Joseph Postell is a contributing editor to Civitas Outlook and is an Associate Professor of Politics at Hillsdale College.