Conor Clarke (Washington University in St. Louis – School of Law) & Ari Glogower (Northwestern Pritzker School of Law) have posted Tariffs and the Taxing Power: Historical Lessons for Major Questions and Nondelegation (Washington University Law Review, Vol. 103 (forthcoming 2026)) on SSRN. Here is the abstract:
The Supreme Court is now poised to answer basic questions about the President’s power to impose tariffs—a dispute that centers on whether Congress can delegate this authority, and the degree to which it has. Yet the current controversy over tariffs emerges against conflicting accounts of the historical practice of tax delegation. 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—sometimes justified by his foreign affairs and national security prerogatives under Article II—while retaining closer control over internal taxes. How should we understand this seemingly conflicting history of practice, and its relevance for the debates over delegation today?
After summarizing the basic history of tariffs and congressional practice around and after the Founding—a history that emphasizes many of the ways in which tariffs are structurally and constitutionally distinct—we make three observations that are relevant to the current debate over major questions and nondelegation. 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). Early Congresses delegated what they had to—which, in the case of tariffs, was not much. Second, all these early delegations were limited: They did not authorize the Executive Branch to decide the objects or levels of taxation. Finally, 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 suggest a consistent understanding of the tax and tariff power in the early Republic—and suggest why a broad presidential tariff power conflicts with constitutional structure and historical practice.
Highly recommended.
The paper does not engage in extensive originalist analysis, but there is one paragraph that does make an originalist claim:
Tariffs were always understood—before the Founding and immediately after—as tools with foreign policy implications. The claim that presidential control over tariff policy rests solely on the idea that tariffs “became” matters of foreign policy in the twentieth century therefore oversimplifies the issue. For originalists in particular, the constitutional balance of authority at the Founding necessarily incorporated an understanding that tariff policy was deeply enmeshed with foreign relations.
I am not sure what the last sentence means. For Public Meaning Originalism (short introduction here), the “balance of authority” is only relevant if it is either (1) baked into the meaning of the constitutional text, e.g., in the phrases “legislative power” and “executive power,” or (2) provides context that creates a pragmatic enrichment, i.e., communicative comment that is conveyed implicitly and not explicitly.