Scholarship@WashULaw

Document Type

Article

Language

English (en)

Publication Date

2026

Publication Title

Washington University Law Review

Abstract

American law is grappling with basic questions about the President’s power to impose tariffs—questions concerning whether Congress can delegate this authority, and the degree to which it has. But the ongoing tariff controversy emerges against a backdrop of conflicting and shifting historical practice. Early Congresses drafted tariff statutes in painstaking detail, while some of the broadest delegations in the early Republic involved internal taxes. In the modern era, by contrast, Congress has delegated more expansive tariff powers to the President, while retaining closer control over internal taxes. How should we understand this seemingly conflicting history of practice, and its relevance for the debates over tax delegation today? We begin by recounting the history of tariffs around the Founding, emphasizing the ways in which tariffs are historically and constitutionally distinct from other taxes. We then make three observations for the current debate over how nondelegation principles apply to tariffs. First, we provide an account of why the early history of tariff law diverges (or appears to diverge) from early tax delegations—namely, differences in tax design and administrative technology. It was easier for Congress to provide statutory specifications for taxes on discrete items (like import duties) than for tax bases that were novel and harder to measure (like the 1798 wealth tax). Second, we use the example of ad valorem duties to illustrate the delegation principles in early practice. Early Congresses delegated what they had to— but did not authorize the Executive Branch to decide the objects or levels of taxation. Third, we note that Congress maintained a firm grip over early tariffs even when these laws had express foreign policy implications and were explicitly discussed in foreign policy terms. These points offer a consistent understanding of the early taxing power—and suggest why broad presidential tariffs conflict with constitutional structure and practice.

Keywords

Tariffs, Tariff Law, History of Tariffs, Taxing Power, Nondelegation, Major Questions

Publication Citation

Conor Clarke & Ari Glogower, Tariffs and the Taxing Power: Historical Lessons for Major Questions and Nondelegation, 103 Wash. U.  L. Rev. 1867 (2026)

Download

Share

COinS