Election 2024: Donald Trump Has Vowed to Raise Tariffs. Can He?

Donald Trump calls himself a “tariff man.” He sees tariffs as the solution to most of what ails the United States. He believes they will revitalize the U.S. automobile industry, make childcare affordable, keep people from entering the United States illegally, maintain the dollar’s status as the world’s reserve currency, and stop wars. And Trump is not talking about small changes in tariff rates. He wants tariffs as high as 100 percent, if not higher.

Most of the commentary on Trump’s tariff proposals focuses on whether tariffs will produce the benefits he promises—they won’t—and whether foreign countries rather than Americans pay for tariffs as he insists—they don’t.

One question that has been neglected is whether Trump can raise tariffs as he says he will.

You might recall from high-school civics that the U.S. Constitution tasks Congress, not the president, with setting tariff policy. It is not a close call either. The framers were specific. Congress has the power “to regulate Commerce with foreign Nations.”

That, however, doesn’t settle the matter. Presidential power doesn’t rest solely on express or implied constitutional authorities. It also draws from what Congress empowers a president to do. And in the decades after the Smoot-Hawley tariff debacle, Congress delegated substantial tariff powers to the president.

Congress’s decision to delegate its authority reflected two practical calculations. One was that crafting a tariff policy that avoided crippling retaliatory tariffs by other countries required negotiating reciprocal trade agreements. However, Congress can’t negotiate, only presidents can. The other reason, which became more prominent after the United States embraced a global leadership role after World War II, was the presumed need to be able to respond quickly to events. Congress can only change policy by passing laws. Presidents can change policy with a pen.

Delegating power, however, creates a problem for Congress. Presidents can use their statutory authorities in ways that were never intended or expected. This is especially true as the years pass and the reasons for the initial delegation of authority, and the norms and expectations that shaped it, are forgotten. Presidents with clever lawyers—and they all have clever lawyers—can read statutes to find authorities that Congress never knew it delegated. Just as important, the president typically gets to decide when the conditions Congress has set for acting have been met.

Trump’s 2018 decision to raise tariffs on steel and aluminum imports, including imports from America’s treaty allies, offers an example. He justified his decision by invoking Section 232 of the Trade Expansion Act of 1962. It empowers presidents to raise tariffs on imports that threaten U.S. national security. The only constraint on presidential action is the requirement that the Department of Commerce, which reports to the president, first investigate the threat. Most experts outside the U.S. government and many inside it, including the secretary of defense, did not believe back in 2018 that steel and aluminum imports from U.S. allies impaired national defense requirements. Their views didn’t matter. Only Trump’s did.

This is not to say that Trump could remake U.S. tariff policy as he sees fit should he return to office. He could not, for example, revoke China’s permanent normal trade relations status, which grants China certain trade advantages that other countries also enjoy with the United States. Only Congress can do that. (Given the anti-China lean in both the Democratic and Republican parties, Congress would likely pass such legislation if asked.)

But Trump and his team would still have considerable statutory authority to raise tariffs. Besides section 232, Trump could turn to section 301 of the Trade Act of 1974. It empowers presidents to retaliate against unfair foreign trade practices. He could also invoke the International Emergency Economic Powers Act. It authorizes presidents to regulate imports in the face of an “unusual and extraordinary threat, which has its source in whole or substantial part outside the United States.” Trump threatened to do just that in 2019 to pressure Mexico to do more to stop people from crossing over the U.S. southern border. Trump could also invoke older and largely forgotten laws like Section 338 of the Tariff Act of 1930. It authorizes presidents to impose tariffs on countries that discriminate against U.S. products.

So, yes, Trump would have ample authority to raise tariffs should he return to the White House. Which means we could find out whether tariffs are in fact the miracle cure-all that he claims.

Campaign Update

Secret Service agents on Sunday foiled a second attempt on Trump’s life. The former president blamed Democrats for the attempted assassination, saying that the gunman “believed the rhetoric of Biden and Harris, and he acted on it.” He also wondered whether the fact he hadn’t been harmed meant that “perhaps it’s God wanting me to be President to save this country. Nobody knows.”

Kamala Harris on Wednesday picked up the endorsement of 111 former Republican lawmakers and national security officials. In the letter endorsing the vice president, the signatories noted that they disagreed with her on many policy issues. Those difference paled, however, in comparison with their belief that Trump is “unfit to serve again as President, or indeed in any office of public trust.” The signatories included William Cohen, the former senator from Maine and former secretary of defense; Chuck Hagel, the former senator from Nebraska and former secretary of defense; General Michael V. Hayden, former director of the Central Intelligence Agency and of the National Security Agency; and William Webster, the former director of the Central Intelligence Agency and of the Federal Bureau of Investigation.

What Harris did not get this week was the endorsement of the International Brotherhood of Teamsters. It announced on Wednesday that it would not endorse either Harris or Trump. Teamsters President Sean O’Brien explained the union’s decision to sit on the sidelines this campaign season with a statement saying that "neither major candidate was able to make serious commitments to our union to ensure the interests of working people are always put before Big Business.” Before making the announcement, the Teamsters announced that a poll of its members found that they preferred Trump over Harris by 59.6 percent to 34 percent. An earlier Teamsters poll showed that members preferred Joe Biden to Trump by 44.3 percent to 36.3 percent. Trump hailed the Teamsters’ decision not to endorse a candidate as “a great honor” because Harris had been expected to get an endorsement.

Harris also failed to get the endorsement of the Uncommitted Campaign. The group, which formed to pressure Joe Biden to curb, if not end, Israel’s war in Gaza, announced that it will not endorse a presidential candidate in 2024. Recognizing that Trump is even less sympathetic to their cause than Harris, the group said it will “urge Uncommitted voters to register anti-Trump votes and vote up and down the ballot. Our focus remains on building a broad anti-war coalition both inside and outside the Democratic Party.” The group did not address the internal contradiction in its position. If it encourages voters who would otherwise vote for Harris to support another candidate or to not vote at all, it will be helping Trump. The group specifically warned that its own organizing “power would be severely undermined by a Trump administration.”

Microsoft’s Threat Analysis Center warned that Russian assets have stepped up efforts to derail the Harris-Walz campaign. According to the tech giant, Russian influence campaigns are now “producing content implicating Vice President Harris and Governor Walz in outlandish fake conspiracy theories.” One video falsely claimed that Harris was involved in a 2011 hit-and-run accident that left a young girl paralyzed. The video was posted on “a website masquerading as a local San Francisco media outlet…[that] was only created days beforehand.”

The Biden White House on Tuesday hosted the first meeting with the Harris and Trump transition teams. According to the Associated Press, the meeting covered “updates on various transition preparations, which include plans to provide office space for the nominees, identifying acting career officials to fill vacant political appointee roles during the transition, and the preparation of memos on agency operations for the eventual president elect’s team.”

A federal district court rejected Robert F. Kennedy Jr.’s request that his name be taken off the Michigan state ballot. The Michigan Supreme Court had previously rejected Kennedy’s petition as well. Michigan election officials hope that the district court’s ruling isn’t overturned. The state has already printed 90 percent of the ballots it anticipates needing in the election.

Pennsylvania’s Supreme Court on Monday ruled that third-party candidate Cornel West had failed to qualify for the state’s ballot. The decision upheld a lower court ruling that found that Pennsylvania’s secretary of state office had acted properly in determining that West had failed to provide the necessary qualifying paperwork. The decision spares the Harris campaign one potential drain on voter support in a critical battleground state come November.

Republicans are renewing their effort to persuade Nebraska to move back to a winner-takes-all standard for allocating the state’s five electoral votes. In 1991, Nebraska passed a law awarding one electoral vote to the winner of the popular vote in each of the state’s congressional districts. Maine is the only other state that follows that practice. Biden lost the overall vote in Nebraska in 2020, but he won Nebraska’s second congressional district. As a result, he walked away with one electoral vote in the state. Nebraska lawmakers voted back in the spring against changing how the state apportions its electoral votes. This week, Nebraska’s all-Republican congressional delegation sent a letter to Nebraska’s Republican governor and the speaker of the state’s unicameral legislature asking them to return the state to a winner-take-all standard. Republican South Carolina Senator Lindsey Graham also traveled to Lincoln this week to lobby Republican lawmakers to change the electoral-vote-apportionment rule. Trump called into a meeting with Graham, Nebraska’s governor, and others to ensure that everyone would “understand what that one vote would mean.”

This morning, the pro-Trump Georgia State Election Board voted to require that all ballots in the Peachtree State be counted by hand this year. The board took that step even though the state’s Republican attorney general advised them that the change violated state law. If the rule survives legal challenge, it could substantially delay Georgia’s vote count. The rule only requires the counting of individual ballots. It does not require counting each vote for every office on the ballot by hand. Even so, many local election offices in Georgia say they will not have enough properly trained workers for the task.

What the Candidates Are Saying

Harris sat down for an interview on Tuesday with the National Association of Black journalists. Most of the conversation covered domestic politics. She was asked, though, about Gaza. She repeated the position she has taken many times before: She supports Israel’s right to defend itself and wants to see a ceasefire as soon as possible. When asked what the United States could do to promote Palestinian self-determination, Harris set forth her vision of what she hopes to accomplish when ending the war in Gaza: “That there be no reoccupation of Gaza… no changing of the territorial lines in Gaza… security in the region for all concerned in a way that we create stability… that ensures that Iran is not empowered.”

Harris refused to answer a reporter’s question about the “specific policy changes” she would make “in the way that we send weapons” to Israel. That’s understandable. It’s one thing for a candidate out of office to say how they plan to change policy; it’s another thing entirely for a senior member of government to talk about how they would remake policy, especially when the administration is engaged in delicate diplomatic negotiations.

In a press conference last Friday afternoon, Trump was asked how he would deal with U.S. adversaries in light of the news that North Korea had unveiled a uranium enrichment facility and Iran had shipped ballistic missiles to Iran. He responded by saying:

I’ll be able to make phone calls and solve most of the problems. I may actually have to meet a couple of times. But, you know, Viktor Orban, the—and you’ve heard me say this, but it wasn’t long ago. He said, the only way you’re going to solve the world problem is Trump has to be president again. And I don’t say it. I didn’t say it. I sort of would be embarrassed to say it. But he said everybody was afraid of Trump. He said China was afraid, Russia was afraid, North Korea was afraid. Everybody was afraid. We had no wars.

Trump didn’t explain why he didn’t solve either problem when he was president if all it took was some phone calls and a few meetings.

Trump was asked at a town hall in Michigan on Tuesday what he would do to lower food costs. His answer suggested that his solution would be to restrict imports of food.

That “solution” defies the law of supply and demand—if you decrease supply, prices rise. It’s not surprising that one economist called Trump’s proposal “perhaps the worst economic policy idea of modern times.” That didn’t stop Trump’s town-hall audience from cheering.

What the Pundits Are Saying

Jane Harman and Eric S. Edelman, the chair and vice chair of the Commission on the National Defense Strategy, wrote in Foreign Policy that the next president needs to fundamentally change the direction of U.S. national security policy. They argue that “the United States should continue to play a leading role around the world to safeguard its national interests, preserve a global economic system that works in its favor, and stand up to growing authoritarianism.” Doing so requires “building a balanced, coordinated effort across all elements of national power; placing commercial innovation at the heart of military modernization; posturing a force to match the threat; investing smarter and investing more; and forging a national consensus on security and service.”

Nathaniel Rakich of 538 wrote a solid primer on how to read polls. Among other pointers, “pay attention to who was polled. Some polls survey all adults; others survey just registered voters; still others survey just voters the pollster deems likely to vote in an upcoming election. If you're interested in who's going to win the election, you want a likely-voter poll.” 

My colleague Joshua Kurlantzick examined what a Harris administration might mean for Asia. Josh argues that “a Harris-Walz administration, with Walz as vice president and advisers with human rights backgrounds, would probably promote a greater focus on human rights not only in China but also in Southeast Asia, South Asia, and the Pacific Islands.”  

Sam Baron wrote in The Diplomat about what a Harris administration might mean for southeast Asia. He believes that “fundamentally, a Harris administration is likely to pay much closer attention to Southeast Asia, and is poised to engage a region the vice president is intimately familiar with. At the same time, Harris is unlikely to stray too far from Biden on policy, and may face many of the same challenges, particularly when it comes to trade policy–where domestic politics continues to stymie more robust U.S. economic engagement.”

Michael Shuman asked in The Atlantic whether Trump has gone soft on China. His answer is yes: “He trots out the old rhetoric—accusing the Chinese of stealing American jobs, taking advantage of the United States, and starting the coronavirus pandemic, which he still calls the ‘China virus,’ for example—but he has also sounded a different note, suggesting that the U.S. needs better relations with Beijing to reduce the threat China poses to international security. Exactly how he intends to achieve this without sacrificing core American interests, he has not made clear.”

What the Polls Show

Gallup released a poll this week showing that Harris and Trump have roughly identical favorability ratings, but overall, both are looked upon unfavorably by a majority of Americans. Forty-four percent of Americans view Harris favorably, and 46 percent view Trump favorably. In comparison, 54 percent view Harris unfavorably and 53 percent view Trump unfavorably. Harris performs far worse than Trump among self-described independents, with 60 percent of that group viewing her unfavorably compared to 53 percent for Trump. The survey was conducted between September 3 and 15, so it doesn’t fully reflect how the September 10 debate might have changed how Americans viewed both candidates.

The Pew Research Center found that 57 percent of adults are extremely or very concerned that artificial intelligence (AI) will be used to create and spread disinformation about the 2024 Election. Roughly equal shares of Democrats and Republicans hold this view. The main variation in concern about AI’s impact is by age. While 68 percent of Americans over the age of sixty-five are extremely or very concerned about how AI will be used, just 48 percent of Americans between the ages of eighteen and twenty-nine are.

The Campaign Schedule

The vice-presidential debate is eleven days away (October 1, 2024).

Election Day is forty-six days away (November 5, 2024).

Electors will meet in each state and the District of Columbia to cast their votes for president and vice president in eight-four days (December 17, 2024).

The 119^th U.S. Congress will be sworn into office in 105 days (January 3, 2025).

The U.S. Congress will certify the results of the 2024 presidential election in 108 days (January 6, 2025).

Inauguration Day is 122 days away (January 20, 2025).

Oscar Berry assisted in the preparation of this post. My thanks to my colleague Inu Manak for pointing out Section 338 of the Tariff Act of 1930 to me.