Discretionary Authorities

     One of the perennial problems for analysts and commentators on public policy is the existence – or non-existence – of legislative accommodations for discretion on the part of an executive. For example, a law drawn to provide for a hypothesized need must provide for the decision that the need has arisen. What would be appropriate then must not begin until then. For another example, a law drawn to resolve some current need with appropriate action must also allow for the time after resolution. The action that ameliorates a troubled period is usually inappropriate after the trouble is past. However, it’s usually not left to the legislature to recognize those transitions. That responsibility is normally placed in the hands of the executive branch – by law.

     That automatically awards a degree of discretion to the executive that many persons – especially legislators – find disturbing. Yet in our era it’s become a consistent practice: effectively unavoidable.

     Problems for public comprehension arise when the extent of the executive’s discretionary authority is unknown. For example, the Trump Administration has levied tariffs on imports from various countries. Tariffs are a form of taxation under the Constitution, which would seem to put that power in Congress’s demesne. But legislation on the subject could easily include a clause granting the president discretion over the imposition of tariffs and their severity. The precise wording of the legislation is what matters in determining the legality of President Trump’s actions...but the general public is unlikely to know the particulars.

     Just yesterday, FOX News contributor Andrew Napolitano railed against the Trump Administration’s tariffs as unConstitutional. Yet current federal law on tariffs speaks otherwise:

SEC. 232. SAFEGUARDING NATIONAL SECURITY.
     (a) No action shall be taken pursuant to section 201 (a) or pursuant to section 350 of the Tariff Act of 1930 to decrease or eliminate the duty or other import restriction on any article if the President determines that such reduction or elimination would threaten to impair the national security.
     (b) Upon request of the head of any department or agency, upon application of an interested party, or upon his own motion, the Director of the Office of Emergency Planning (hereinafter in this section referred to as the "Director") shall immediately make an appropriate investigation, in the course of which he shall seek information and advice from other appropriate departments and agencies, to determine the effects on the national security of imports of the article which is the subject of such request, application, or motion. If, as a result of such investigation, the Director is of the opinion that the said article is being imported into the United States in such quantities or under Such circumstances as to threaten to impair the national security, he shall promptly so advise the President, and, unless the President determines that the article is not being imported into the United States in such quantities or under such circumstances as to threaten to impair the national security as set forth in this section, he shall take such action, and for such time, as he deems necessary to adjust the imports of such article and its derivatives so that such imports will not so threaten to impair the national security.
     (c) For the purposes of this section, the Director and the President shall, in the light of the requirements of national security and without excluding other relevant factors, give consideration to domestic production needed for projected national defense requirements, the capacity of domestic industries to meet such requirements, existing and anticipated availabilities of the human resources, products, raw materials, and other supplies and services essential to the national defense, the requirements of growth of such industries and such supplies and services including the investment, exploration, and development necessary to assure such growth, and the importation of goods in terms of th6ir quantities, availabilities, character, and use as those affect such industries and the capacity of the United States to meet national security requirements. In the administration of this section, the Director and the President shall further recognize the close relation of the economic welfare of the Nation to our national security, and shall take into consideration the impact of foreign competition on the economic welfare of individual domestic industries; and any substantial unemployment, decrease in revenues of government, loss of skills or investment, or other serious effects resulting from the displacement of any domestic products by excessive imports shall be considered, without excluding other factors, in determining whether such weakening of our internal economy may impair the national security.
     (d) A report shall be made and published upon the disposition of each request, application, or motion under subsection (b). The Director shall publish procedural regulations to give effect to the authority conferred on him oy subsection (b).

     The phrases national security and economic welfare in the above effectively award the president complete discretion over the imposition of tariffs and the rates to be imposed. Judge Napolitano should be aware of that. Apparently he isn’t – and in his ignorance he’s made a false, misleading statement about President Trump.

     In another part of Judge Napolitano’s statement, he condemns President Trump’s use of funds allocated to “the military” for the construction of the wall along the southern border. In Napolitano’s eyes, this is a usurpation of Congress’s power of the purse. But the allocation of funds to military expenditure places discretion over the actual use of those funds in the hands of the Commander-in-Chief: i.e., the president. Besides that, walls and other barriers have obvious military applications. Judge Napolitano has no more standing to condemn this application of military funds than he would to condemn the purchase of shovels for digging trenches. So once again, a respected commentator has misled the public...hopefully out of ignorance, though for a retired federal judge that doesn’t seem like a respectable claim.

     I could go on about this sort of thing. When Congress wants to bind the executive branch to a rigidly specified course of action, it legislates in the language required for that purpose. Congress has chosen not to do any such thing in the two areas above. Critics of Trump Administration policies might decry the relevant legislation – and the relevant portions of Article II of the Constitution – as much as they please. The discretion President Trump has exercised was left to the president in the clear language of the law, including the Supreme Law that created his office and defines his powers.