Jon Endean (Brooklyn) presents Tariffs as Taxes: A Framework for Understanding Delegation of the Taxing Power, 63 San Diego L. Rev. __ (forthcoming 2026), at Columbia today as part of the Davis Polk & Wardell Tax Policy Colloquium:

While perhaps not obvious to the casual observer, tariffs are taxes, and, as such, they fall within the Constitution’s Article I enumerated powers, raising important questions regarding delegations of that power to the executive. This Article seeks to answer provide a framework for one such question: Did Congress delegate the taxing power?

This Article explores and proposes a framework for understanding congressional delegations when it specifically relates to the taxing power. The historical context behind the inclusion of the taxing power in the Constitution shows that inherent in the Constitution’s taxing power are two core values that have their root in the development of structural constraints on the taxing power in Feudal England and are reflected in the text of the Constitution itself. The first such value is the recognition that the taxing power is not merely first in a list of enumerated powers, but separate and distinct. Indeed, the Framers recognized the unique role—and danger—posed by the taxing power and placed significant guardrails around its use that do not apply to the other enumerated powers. Flowing from this value is a second value: the recognition that the taxing power exclusively belongs to Congress. That exclusivity is no accident; rather, it is the application of a basic principle that taxes cannot be imposed without the consent of the governed. 

Based on these values, this Article proposes a structural canon that can be used to determine whether a statute passed by Congress did, in fact, delegate its taxing power to the President: Absent a clear statement from Congress that it was exercising its taxing power in a delegation, neither of the other two branches of government have any authority to impose taxes. President Trump’s tariffs, largely imposed under the putative authority of the International Emergency Economic Powers Act, or IEEPA, presents a useful lens through which to view the application of this canon, and this Article concludes that because there is no indication that Congress intended to delegate its taxing power in passing IEEPA, it fails this Article’s proposed clear statement rule and therefore does not grant the President any taxing power. Accordingly, the tariffs imposed under IEEPA are not lawful exercises of presidential power.

While the structure of the Constitution may be at times inconvenient, placing the taxing power exclusively into the hands of Congress reflects an important decision that still carries weight today. As such, this Article concludes by contemplating how the different branches of government—as well as citizens of our Republic—ought to think about how the taxing power fits into our broader constitutional order. This, of course, is hardly an easy question, but given the importance of the taxing power, it nonetheless is important towards strengthening our constitutional order.