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Thread: Mistwell, tell me if this line of inquiry is remotely sound.

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    Girls Gone Spoony! Spoony's Avatar
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    Mistwell, tell me if this line of inquiry is remotely sound.

    When Trump announced he was going to raise tariffs my first thought was, "How? Doesn't taxation require action by Congress - specifically by the House?" Looking into it he's using a law passed back in the 1970's to delegate this authority to him.

    But... Didn't the Supreme Court rule this unconstitutional as part of their 1998 ruling to stop the line item veto? In the decision they ruled that Congress doesn't have authority to cede any of its power to the executive.

    So, if the Republicans really want the tariffs stopped, can't they sue citing the 1998 ruling?

    My reasoning is they either have to find that they goofed in 1998, such is constitutional, and give Trump the line item veto; or they have to find the 1970 law is also unconstitutional stripping away the authority to set tariffs. I see no middle ground here.

    I'm not saying there isn't one, I just don't see one.

    Anyone else can chime in as well, but as far as I know Mistwell is the only lawyer on the board so I'm most interested in what he says.

 

  • #2
    Quote Originally Posted by Spoony View Post
    When Trump announced he was going to raise tariffs my first thought was, "How? Doesn't taxation require action by Congress - specifically by the House?" Looking into it he's using a law passed back in the 1970's to delegate this authority to him.

    But... Didn't the Supreme Court rule this unconstitutional as part of their 1998 ruling to stop the line item veto? In the decision they ruled that Congress doesn't have authority to cede any of its power to the executive.

    So, if the Republicans really want the tariffs stopped, can't they sue citing the 1998 ruling?

    My reasoning is they either have to find that they goofed in 1998, such is constitutional, and give Trump the line item veto; or they have to find the 1970 law is also unconstitutional stripping away the authority to set tariffs. I see no middle ground here.

    I'm not saying there isn't one, I just don't see one.

    Anyone else can chime in as well, but as far as I know Mistwell is the only lawyer on the board so I'm most interested in what he says.
    Some GOP Senators are actually talking about fighting against these tariffs.

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    That's Wacist! Mistwell's Avatar
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    While I deal with customs and tariffs every day, I actually have very little knowledge concerning the source of those laws through the executive. I always assumed it was within the President's power of Treaty, but maybe it's Congress, and maybe it's an existing bill that the Executive merely enforces and issues regulations for (which is how most bills work). As for ceding power - you'd have no environmental laws for example if Congress couldn't pass a law for the Executive to enforce through regulations which change the amount of money companies pay and the parts per million of effluent and all that stuff. So no, pretty sure Congress can give the Executive the authority to adjust the limits in an existing bill they're enforcing.
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    Quote Originally Posted by Mistwell View Post
    While I deal with customs and tariffs every day, I actually have very little knowledge concerning the source of those laws through the executive. I always assumed it was within the President's power of Treaty, but maybe it's Congress, and maybe it's an existing bill that the Executive merely enforces and issues regulations for (which is how most bills work). As for ceding power - you'd have no environmental laws for example if Congress couldn't pass a law for the Executive to enforce through regulations which change the amount of money companies pay and the parts per million of effluent and all that stuff. So no, pretty sure Congress can give the Executive the authority to adjust the limits in an existing bill they're enforcing.
    Clearly Spoony isn't familiar with Chevron deference.
    Quote Originally Posted by PWD View Post
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    I think ovi's right.

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    Then why can't Congress grant the executive the line item veto?

    That's what bothers me the most - the incongruity of it.

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    That's Wacist! Mistwell's Avatar
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    Quote Originally Posted by Spoony View Post
    Then why can't Congress grant the executive the line item veto?

    That's what bothers me the most - the incongruity of it.
    In theory it can, they just can't do it in a manner which violates the Presentment clause because it was viewed as "unilateral amendment or repeal of only parts of statutes " . There was an attempt about 6 years ago to craft a new bill granting a limited line item veto that wouldn't violate the clause, but it never got to the senate.
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    Quote Originally Posted by Spoony View Post
    Then why can't Congress grant the executive the line item veto?

    That's what bothers me the most - the incongruity of it.
    Here's the rub -- Congress can authorize the President to have revenue generating powers (tariffs), but the President cannot unilaterally appropriates passed by Congress (line item veto).

    In effect, the Congress has already authorized tariff raising, but has placed some of the discretion as to where, when, and how much on the President. It's like, for instance, Congress said that a 50% tariff on imported puppies is authorized, but not in effect until the President deems it necessary to curb puppy imports. This means that Congress is who authorized the tariffs, but passed the buck on the details to the President to work out.

    The line item veto, however, was a future carte-blanche to the President to pick and choose which appropriations were allowed after Congress passed them. In other words, it granted the President direct power over appropriations that violated the separation of powers in the Constitution. In this case, Congress isn't authorizing something and leaving the details to be filled in by the Executive (a practice with a long and storied history, hence my previous reference to Chevron) but instead is granting the Executive future and un-passed authorities specifically reserved for Congress.

    In short, Congress can say "you can do this thing, we authorize it, you figure out the details" but can't say "you can pick the things to do and the details." They can't cede the power over the 'thing to do' part to the Executive, but they can cede (and do often cede) the power to determine the details. Which can include time and place, as the 3 main tariff acts do (War tariffs, Emergency tariffs, and temporary tariffs).
    Quote Originally Posted by PWD View Post
    This quote is hidden because you are ignoring this member.
    I think ovi's right.

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    It occurs to me that Spoony has me on ignore. Someone quote the above for his edifications, please.
    Quote Originally Posted by PWD View Post
    This quote is hidden because you are ignoring this member.
    I think ovi's right.

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    Quote Originally Posted by Ovinomancer View Post
    Here's the rub -- Congress can authorize the President to have revenue generating powers (tariffs), but the President cannot unilaterally appropriates passed by Congress (line item veto).

    In effect, the Congress has already authorized tariff raising, but has placed some of the discretion as to where, when, and how much on the President. It's like, for instance, Congress said that a 50% tariff on imported puppies is authorized, but not in effect until the President deems it necessary to curb puppy imports. This means that Congress is who authorized the tariffs, but passed the buck on the details to the President to work out.

    The line item veto, however, was a future carte-blanche to the President to pick and choose which appropriations were allowed after Congress passed them. In other words, it granted the President direct power over appropriations that violated the separation of powers in the Constitution. In this case, Congress isn't authorizing something and leaving the details to be filled in by the Executive (a practice with a long and storied history, hence my previous reference to Chevron) but instead is granting the Executive future and un-passed authorities specifically reserved for Congress.

    In short, Congress can say "you can do this thing, we authorize it, you figure out the details" but can't say "you can pick the things to do and the details." They can't cede the power over the 'thing to do' part to the Executive, but they can cede (and do often cede) the power to determine the details. Which can include time and place, as the 3 main tariff acts do (War tariffs, Emergency tariffs, and temporary tariffs).
    Quote Originally Posted by Ovinomancer View Post
    It occurs to me that Spoony has me on ignore. Someone quote the above for his edifications, please.
    Done.
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    That's Wacist! Mistwell's Avatar
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    Quote Originally Posted by Ovinomancer View Post
    Here's the rub -- Congress can authorize the President to have revenue generating powers (tariffs), but the President cannot unilaterally appropriates passed by Congress (line item veto).

    In effect, the Congress has already authorized tariff raising, but has placed some of the discretion as to where, when, and how much on the President. It's like, for instance, Congress said that a 50% tariff on imported puppies is authorized, but not in effect until the President deems it necessary to curb puppy imports. This means that Congress is who authorized the tariffs, but passed the buck on the details to the President to work out.

    The line item veto, however, was a future carte-blanche to the President to pick and choose which appropriations were allowed after Congress passed them. In other words, it granted the President direct power over appropriations that violated the separation of powers in the Constitution. In this case, Congress isn't authorizing something and leaving the details to be filled in by the Executive (a practice with a long and storied history, hence my previous reference to Chevron) but instead is granting the Executive future and un-passed authorities specifically reserved for Congress.

    In short, Congress can say "you can do this thing, we authorize it, you figure out the details" but can't say "you can pick the things to do and the details." They can't cede the power over the 'thing to do' part to the Executive, but they can cede (and do often cede) the power to determine the details. Which can include time and place, as the 3 main tariff acts do (War tariffs, Emergency tariffs, and temporary tariffs).
    Quote Originally Posted by Ovinomancer View Post
    It occurs to me that Spoony has me on ignore. Someone quote the above for his edifications, please.
    Quote Originally Posted by nail bunny View Post
    Done.
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    That makes sense up to a point. The tariff powers Congress has granted the President are so broad as to amount to an abdication of their authority. It would be like authorizing a 100% income tax, then letting the President set the rate. But that was a decision made in the 60's (Laws really need mandatory sunsets - but that's a whole other kettle of fish).

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    Quote Originally Posted by Spoony View Post
    That makes sense up to a point. The tariff powers Congress has granted the President are so broad as to amount to an abdication of their authority. It would be like authorizing a 100% income tax, then letting the President set the rate. But that was a decision made in the 60's (Laws really need mandatory sunsets - but that's a whole other kettle of fish).
    It is, however, a Constitutional granting of discretion. And some of the discretions being discussed are from as late as the latter 90's. There's a raft of legislation involved, not just the 60's one.

    I am, however, tickled pink that everyone is now screaming about Presidential power creep and sudden embracing of libertarian arguments. Perhaps, we'll actual see some clawback of authority from the Executive. One can hope.
    Quote Originally Posted by PWD View Post
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    I think ovi's right.

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    Quote Originally Posted by Ovinomancer View Post
    I am, however, tickled pink that everyone is now screaming about Presidential power creep and sudden embracing of libertarian arguments. Perhaps, we'll actual see some clawback of authority from the Executive. One can hope.
    Only until the next democrat takes office and the Senate climbs all over themselves seeing how fast they can recede that authority.
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  • #14
    Quote Originally Posted by Spoony View Post
    That makes sense up to a point. The tariff powers Congress has granted the President are so broad as to amount to an abdication of their authority. It would be like authorizing a 100% income tax, then letting the President set the rate. But that was a decision made in the 60's (Laws really need mandatory sunsets - but that's a whole other kettle of fish).
    Sunsets on laws would be a nightmare!

    Yeah in theory it sounds nice, but can you imagine how balls-nuts crazy it would get if every law dated a specific amount of time ago (say, 50 years just for kicks) at any given time had to be brought up for debate and re-approved before its due date; along with all the new shit they're doing now?

    Put another way, right now they'd be rehashing large parts of 1968 and 1969 all over again as well as trying to deal with 2018.

    As for the current issue - Canadian here saying I've never been a big fan of Trudeau but he's impressed me with his willingness to stand up to Trump.

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  • #15
    Quote Originally Posted by Ovinomancer View Post
    It is, however, a Constitutional granting of discretion. And some of the discretions being discussed are from as late as the latter 90's. There's a raft of legislation involved, not just the 60's one.

    I am, however, tickled pink that everyone is now screaming about Presidential power creep and sudden embracing of libertarian arguments. Perhaps, we'll actual see some clawback of authority from the Executive. One can hope.
    Yep. Before the election, I was saying that this was one of the good things that could come from Trump being elected.

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