Why the US is on a war footing over tariffs and mass deportations
- Written by David Smith, Associate Professor in American Politics and Foreign Policy, US Studies Centre, University of Sydney
US President Donald Trump’s foreign policy is doing little[1] to enhance his country’s standing abroad. But it is helping to reinforce his political authority at home.
Congress and the courts are typically deferential[2] to the president on foreign policy – and, in particular, issues related to national security. By putting most of his agenda under the banner of foreign policy, Trump is now taking advantage of that deference to minimise challenges to his power.
Trump has claimed for decades[3] that US domestic problems can be solved with a more aggressive foreign policy.
This focus certainly helps him deal with his political problems, allowing him to attack his enemies and evade accountability under the guise of “saving the country[4]”.
Trump has even gone so far as to call April 2 – when sweeping new tariffs[5] are imposed on foreign goods – “Liberation Day”.
This is a term usually used to celebrate the end of long wars[6] rather than the beginning of them[7].
Congress ceded its foreign policy powers
We are used to thinking of the US president as having almost unlimited power[8] over US foreign policy. But the Constitution actually gives a lot of that power to Congress.
For example, Article 1, Section 8[9] of the Constitution gives Congress, not the president, the power to declare war. It also gives Congress the power to “collect Taxes, Duties, Imposts and Excises”, which include tariffs.
Given these shared responsibilities, the legal scholar Edward Corwin described[10] the Constitution as “an invitation to struggle for the privilege of directing American foreign policy.”
Since at least the Second World War, the president has been decisively winning that struggle. Or more accurately, Congress has been declining invitations to use its power.
For example, American wars no longer begin with declarations. The US has not declared war since 1941, even though the country has been at war almost every year[11] since then[12]. Presidents instead initiate and escalate military conflict in other ways, nearly always with Congressional approval[13]. That approval usually remains in place until a war goes badly wrong.
Congress also passed legislation in 1934 giving the president power to negotiate trade agreements and adjust tariffs. That power expanded significantly with an act in 1962[14] that authorised the president to impose tariffs if imports threaten “national security”.
Although Trump claims tariffs will bring economic prosperity[15] back to the US by reviving manufacturing, his administration justifies them on national security grounds. For example, it is currently using another federal act passed in 1977[16] that allows tariffs in response to an international emergency as justification for its tariffs on Canada and Mexico.
Given the dubiousness[17] of these justifications and the economic damage[18] tariffs might do, Congress could try to reassert[19] its constitutional power to set tariffs.
But this isn’t likely to happen soon[20], given the loyalty of Republicans to Trump[21]. Members of Congress are also reluctant to be seen standing in the way of the president if national security is at stake.
One revelation of “Signalgate[22]” was the fact the US bombed Yemen without even the pretext of an urgent national security reason[23]. But the Congressional grilling[24] of Trump’s intelligence leaders, predictably, did not address this.
The courts are no better
The courts are supposed to review the constitutionality[25] of government actions. But on foreign policy, the courts have been deferential to the president even longer than Congress.
In a sweeping judgement in 1918[26], the Supreme Court wrote that foreign relations counted as a “political power” of the executive and legislative branches, not subject to judicial review.
The Supreme Court has rarely ruled on foreign policy questions[27] since then. When it does, it nearly always supports[28] the president[29] against anyone challenging his right to make foreign policy, including Congress[30].
A federal judge recently complained the Trump administration ignored[31] his order blocking deportation flights of alleged Venezuelan gang members to El Salvador.
Trump invoked the 1798 Alien Enemies Act[32] to justify deporting the Venezuelans, even though some have no criminal record[33]. And Secretary of State Marco Rubio argued[34] the deportations were a “foreign policy matter”, and “we can’t have the judges running foreign policy”.
Mass deportation is one of Trump’s most popular[35] policies. If he is going to pick fights with the judiciary, it makes political sense to do it on an issue where public opinion is on his side – even if the law is not.
Rubio’s comment is also a likely preview of the arguments Trump’s lawyers will make when cases about immigration reach the Supreme Court.
Similarly, the Trump’s administration is relying on the 1952 Immigration and Nationality Act[36] to deport protesters who have committed no crimes[37]. This law allows the secretary of state to deport non-citizens if their presence in the US has “potentially serious adverse foreign policy consequences”.
Deportations under both acts are going to face legal challenges. But the Trump administration is betting[38] the Supreme Court will take Trump’s side, given its conservative members generally hold an expansive view[39] of executive power.
A Supreme Court win would be a major political victory for Trump. It would encourage him to focus even more on using deportation as a political weapon, and making foreign policy justifications for legally dubious acts.
War as a political tool
Trump is effectively putting the US on a war footing. He is justifying his executive actions by recasting allies[40] as enemies[41] who menace national security with everything from illegal drugs to unfair subsidies[42], and by labelling millions of foreign nationals as “invaders[43]”.
Many Americans don’t believe him[44]. But as long as he can make threatening foreigners the main focus[45] of American politics, he can find political and legal support for almost anything he wants to do.
References
- ^ doing little (theconversation.com)
- ^ deferential (people.tamu.edu)
- ^ claimed for decades (theconversation.com)
- ^ saving the country (www.reuters.com)
- ^ sweeping new tariffs (www.abc.net.au)
- ^ the end of long wars (en.wikipedia.org)
- ^ the beginning of them (theconversation.com)
- ^ almost unlimited power (www.whitehouse.gov)
- ^ Article 1, Section 8 (constitution.congress.gov)
- ^ described (www.cfr.org)
- ^ almost every year (en.wikipedia.org)
- ^ since then (en.wikipedia.org)
- ^ nearly always with Congressional approval (theconversation.com)
- ^ That power expanded significantly with an act in 1962 (www.brookings.edu)
- ^ economic prosperity (apnews.com)
- ^ another federal act passed in 1977 (www.nytimes.com)
- ^ dubiousness (www.lawfaremedia.org)
- ^ economic damage (edition.cnn.com)
- ^ try to reassert (www.cfr.org)
- ^ But this isn’t likely to happen soon (www.marketwatch.com)
- ^ Republicans to Trump (theconversation.com)
- ^ Signalgate (theconversation.com)
- ^ urgent national security reason (www.aljazeera.com)
- ^ Congressional grilling (www.npr.org)
- ^ review the constitutionality (constitution.congress.gov)
- ^ In a sweeping judgement in 1918 (supreme.justia.com)
- ^ ruled on foreign policy questions (constitution.congress.gov)
- ^ supports (en.wikipedia.org)
- ^ president (en.wikipedia.org)
- ^ including Congress (en.wikipedia.org)
- ^ ignored (apnews.com)
- ^ 1798 Alien Enemies Act (theconversation.com)
- ^ have no criminal record (www.npr.org)
- ^ argued (www.miragenews.com)
- ^ most popular (thehill.com)
- ^ 1952 Immigration and Nationality Act (constitutioncenter.org)
- ^ protesters who have committed no crimes (www.abc.net.au)
- ^ betting (www.axios.com)
- ^ expansive view (www.brennancenter.org)
- ^ allies (theconversation.com)
- ^ enemies (www.nbcnews.com)
- ^ unfair subsidies (www.whitehouse.gov)
- ^ invaders (www.whitehouse.gov)
- ^ don’t believe him (www.pbs.org)
- ^ main focus (www.washingtonpost.com)
