The purse belongs to the legislature — or it used to

The framers were not subtle on this point. Article I, Section 8 places the power to lay and collect duties, imposts, and excises in the Congress — not because legislators are wiser than executives, but because the branch closest to the people's direct election ought to bear the political cost of taxing them. That accountability is not a courtesy; it is the mechanism by which the compact disciplines the government.

What CNBC reports is arresting in its structural implication: the administration first imposed some $100 billion in tariff burdens under the International Emergency Economic Powers Act, then, facing legal challenge, effectively refunded them — only to reconstruct the same regime under other delegated authorities. The sum of money is almost secondary. The question is whether Congress, through decades of broad statutory delegation, has quietly transferred its taxing and commerce power to the executive branch, available for use whenever an emergency — real or declared — presents itself.

Faction and the emergency power

I wrote in Federalist No. 51 that ambition must be made to counteract ambition, and that each branch must possess the constitutional arms to resist encroachment. The danger I did not fully anticipate was that a legislature might volunteer its own disarmament — handing the executive a loaded instrument through statute and then expressing surprise when it is fired. IEEPA is precisely such an instrument. If the courts now find, as CNBC notes challengers argue, that the administration has merely re-created the same regime through alternative authority, the judiciary becomes the last check in a chain that the legislature has already weakened. That is a fragile arrangement.

The written compact and its amendment clause

The Constitution is not a suggestion. Article I's assignment of the taxing power was deliberate; the framers had watched a British monarch's ministers manipulate trade duties to reward favorites and punish enemies. If the scope of executive commerce power is to be permanently enlarged, the proper instrument is amendment under Article V, not the creative reinterpretation of emergency statutes. What cannot be done by amendment — because it would not survive the deliberative process — ought not be accomplished by decree dressed in emergency language.

What the courts must weigh

I speak with humility on the technical particulars of modern trade law, which I could not have known. But the constitutional question is one I can frame plainly: by what authority does the executive act, and to whom is that authority answerable? If the answer is a statute so broadly worded that it places no effective limit on executive discretion over taxation, then the statute itself may be the constitutional defect — not merely its application. Courts that take Article I seriously must ask whether Congress delegated a power it had the right to delegate in the form it chose.

The structural verdict

The danger here is not partisan; it is architectural. An executive that can levy, refund, and re-levy $100 billion in effective taxes through administrative maneuver — regardless of which party holds the office — is an executive that has absorbed a power the framers placed elsewhere. The arrangement CNBC describes weakens the balance. The remedy is not merely a favorable court ruling in this case; it is a Congress that reclaims its enumerated authority and a citizenry that holds it accountable for doing so.