On Executive Tariffs, the Answer Should be ‘No Taxation Without Representation’
Taxation cannot justly derive from executive authority. Only the legislature has legitimate authority to levy tariffs and other forms of taxation.
Taxation. There is no other issue that has raised passions more throughout American history. As John Marshall once noted, “The power to tax involves the power to destroy,” a bedrock idea of the American Revolution.
Today, we often take the federal government’s license to levy taxes for granted. Most Americans are chiefly concerned with levels of taxation and only a few take the time to consider the valid nature of any given tax. But is this a healthy view of taxation?
As the American founders had to concede in the wake of the failure of the Articles of Confederation, able governance requires certain levels of taxation. However, that taxation must have proper limits and remain bounded within natural law and the constitutional bulwark. In our time, taxation is not so properly constrained.
The first question to ask is where the power to levy taxes can derive. The answer that shouts out from the pages of early American history is clear: such power derives from common consent.
The American Revolution grew out of Boston, where contempt of the taxes levied by Parliament first provoked active dissent to British authority. The stance of these early Patriots was clear, “No taxation without representation.”
These taxes, levied by a Parliament with no American representation, were tyrannical. They were a crucial aspect of the “absolute despotism” Jefferson spoke of in the Declaration of Independence.
And so, the first principle of legitimate taxation is that it must derive from a representative government drawing its legitimacy from the consent of its citizens.
The second question to ask is who within a representative government can formulate and levy taxes. To answer this question, we must define what a tax is. Is it the execution of law? Is it a ruling on the law? It is neither.
Taxation is the crafting of law. To be legitimate, taxation must be, as Hamilton declared in Federalist №33, a “legislative power.” Article 1 of the US Constitution reflects this and grants the authority to tax only to Congress. No other branch of government can assume this power for themselves and be considered legitimate.
Therefore, the second principle of legitimate taxation is that it is singularly a legislative power and must remain so.
The last and highly crucial question to ask is whether a well-established representative legislative body can yield the power to tax to another authority. To this question, Locke provides an answer and Madison provides a warning.
Of legislative power, Locke says, “The legislative cannot transfer the power of making laws to any other hands: for it being but a delegated power from the people, they who have it cannot pass it over to others.”
To those who would violate this doctrine, Madison warns, “The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.”
From these quotes, we have the third principle of legitimate taxation, which is that the power to tax is given to a legislative body from the people and cannot be rightfully given away. Further, if it is given away, any and all taxes deriving from that surrender is tyranny.
Our government is in breach of this third principle. However, the point must be made that no single executive is to blame for this abuse. Neither Clinton, nor Bush, nor Obama, nor Trump has pushed the limits of executive power. Instead, each has displayed a lack of executive limits.
It is Congress that is guilty of the surrender of its authority. It is Congress that that has transgressed against our natural liberties by abdicating its power. This does not excuse the presidential use of these accrued powers. Nor does it make the wielding of those powers proper. Regardless of whatever legal intrigue the executive has used to horde powers in the hands of the executive, they remain legislative powers.
The exercise of legislative powers by the executive is invalid in the eyes of natural law. Clinton, Bush, Obama, and Trump may have exercised power given to them by Congress but their exercise of that power is still tyrannical. This is because that power does not belong to them. Their indulgence in this exercise normalizes the despotic role of a swollen presidency in the eyes of the American people.
In the face of these basic facts, it falls to the patriots of our time to see and oppose this new tyranny. Policy and agenda advocates can make no excuse. Above all, Americans must recognize that the illicit exercise of the power to tax is the greatest display of this developed tyranny. All forms of federal taxation that derive from any authority except Congress is illegitimate and tyrannical.