The debate over who should control US trade policy touches directly on longstanding questions about how power is shared between Congress and the presidency. This essay examines Clark Packard’s 2019 article, which criticises the executive branch’s use of tariff powers originally delegated by Congress. It draws on ideas about separation of powers, delegated authority, and checks and balances set out in Abernathy and Krutz’s American Government text to show how the current situation reflects a gradual shift in institutional roles. The discussion also considers the practical difficulties Congress faces when it tries to reclaim lost ground.
Separation of Powers and Trade Policy
The US Constitution places the power to regulate commerce and impose duties squarely with the legislative branch under Article I, Section 8. Abernathy and Krutz (2024, Section 2.2) describe the separation of powers as a deliberate division meant to stop any one branch from dominating. In practice, trade decisions have moved away from this arrangement. Packard (2019) notes that after the Smoot-Hawley tariffs worsened the Depression, lawmakers began handing flexible authority to the president so that negotiations could move faster. Over time the boundary became blurred. What started as a limited transfer now allows presidents to set broad tariffs without fresh votes, turning a shared responsibility into something closer to executive action. The result is a system where the original constitutional line is respected more in theory than in day-to-day decisions.
Delegated Powers and Their Limits
Congress has long passed statutes that let the executive handle detailed policy questions. Abernathy and Krutz (2024, Section 11.4) explain these delegated powers as a practical response to complex issues that legislators cannot manage directly. Packard shows how this worked with trade: after 1930, statutes such as the Trade Expansion Act of 1962, including Section 232, gave the president room to adjust tariffs when national security seemed at stake. The intention was narrow and technical. Yet the same provisions later supported tariffs on steel and aluminium imports from long-standing allies as well as rivals. Once the power was handed over, later presidents found it easy to stretch the language. The original delegation therefore created a route that proved hard to close again, showing both the convenience and the long-term risk of such transfers.
Checks and Balances Under Pressure
The system of checks and balances is meant to let each branch push back against the others. Abernathy and Krutz (2024, Section 2.2) stress that this mechanism keeps power from concentrating. When tariffs are introduced without a congressional vote, however, that push-back is missing. Packard reports that some members from both parties have tried to restore oversight by requiring votes on any new national-security tariffs. These efforts have so far produced limited results. The executive retains the initiative, and Congress must act after the fact if it wishes to restrain policy. This pattern suggests the checking function still exists on paper but operates more slowly and less reliably than the Framers expected.
Analysis and Practical Implications
Packard’s argument is not simply descriptive; it urges legislators to treat the loss of trade authority as a problem for democratic accountability. The piece draws on constitutional originalism to claim that trade policy belongs first with Congress. From the standpoint of national government, the episode echoes older warnings in the Federalist Papers about the dangers of accumulated power. At the same time, Packard recognises that Congress itself chose to step back in earlier decades. The modern difficulty lies in reversing that choice. Polarisation and the desire to avoid difficult votes mean many members prefer to let the president take the blame for unpopular tariffs. Unless a broad coalition forms around a concrete economic shock, the executive is likely to keep the larger role. This outcome illustrates how authority once delegated can become entrenched even when later Congresses regret the arrangement.
In short, the tariff debate demonstrates both the flexibility and the hazards built into the US constitutional system. While delegation helped trade negotiations after 1930, it also created openings for unilateral action that Congress now struggles to contain. Restoring clearer legislative involvement would require sustained political will, something that remains uncertain given current incentives.
References
- Abernathy, S. E. and Krutz, G. (2024) American Government 4e. OpenStax.
- Packard, C. (2019) Congress should take back its authority over tariffs. Foreign Policy.
