Figure I’d better start writing about the tariffs so that I have a record and a memory of what I thought at the time.

Amidst all the commentary, analysis, lunacy, panic, bravado, false bravado, false panic, and so on regarding these tariffs, there’s a particular aspect I haven’t seen brought up all that often yet, though I expect to notice more about it in the next few days. That aspect is constitutionality. Whether Trump’s tariffs are good or bad, or really bad, or really… really bad, I’m pretty certain they’re not constitutional.

Article I, Section 8 of the Constitution enumerates the powers of Congress. Clause 1 of this section gives Congress the power “To lay and collect Taxes, Duties, Imposts and Excises.” Clause 3 of this section gives Congress the power “To regulate Commerce with foreign Nations.” In short, Congress has the tariff power.

I am neither a lawyer nor a constitutional scholar, but hear me out anyways because I’m right. You see that Latin phrase up top? It means that you can’t delegate a power that’s been delegated to you. If the Constitution gives a branch a power, that branch can’t give that power away.

Trump’s emergency tariffs might currently be “legal” due to some stupid law that Congress passed decades ago, but I say they’re unconstitutional because that stupid law delegates a delegated power. That’s a no-no, and SCOTUS is welcome to cite me.

If you want a tariff, or any kind of federal tax, it has to be passed by the House first, and then it has to be passed by the Senate, and then it has to be signed by the President. And despite what supporters of a certain national health care act and a certain current Chief Justice think, yes, the Constitution specifies the order.

Some folks might point out that nondelegation isn’t literally written into the Constitution, and that Congress can obviously delegate certain administrative responsibilities to the executive branch. After all, what does an executive administration do, if not administrate? I’d respond that my take (“you can’t delegate powers that Article I specifically and explicitly gives to Congress”) is less of a constitutional stretch than theirs (“the President can announce an emergency and enact whatever tariffs he wants”).

I think– I hope– the current Supreme Court would see things my way. But if I were a betting man, I’d bet a few Bolívars, continentals, and papiermarks that the tariff situation will be resolved, one way or another, before the Court gets around to the matter.

…

In case it was too subtle, that last line means I have no idea what’s going to happen next, or when. More later.