ArtI.S8.C3.1.10.2 Foreign Commerce: Protective Tariffs

Article I, Section 8, Clause 3:

[The Congress shall have Power . . .] To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes; . . .

Tariff laws have customarily contained prohibitory provisions, and such provisions have been sustained by the Court under Congress’s revenue powers and under its power to regulate foreign commerce. For the Court in Board of Trustees v. United States, 1 in 1933, Chief Justice Hughes said: The Congress may determine what articles may be imported into this country and the terms upon which importation is permitted. No one can be said to have a vested right to carry on foreign commerce with the United States. . . . It is true that the taxing power is a distinct power; that it is distinct from the power to regulate commerce. . . . It is also true that the taxing power embraces the power to lay duties. Art. I, § 8, par. 1. But because the taxing power is a distinct power and embraces the power to lay duties, it does not follow that duties may not be imposed in the exercise of the power to regulate commerce. The contrary is well established. Gibbons v. Ogden, supra, p. 202. 'Under the power to regulate foreign commerce Congress impose duties on importations, give drawbacks, pass embargo and non-intercourse laws, and make all other regulations necessary to navigation, to the safety of passengers, and the protection of property.' Groves v. Slaughter, 15 Pet. 449, 505. The laying of duties is 'a common means of executing the power.' 2 Story on the Constitution, 1088.2

Footnotes

  1.  Jump to essay-1289 U.S. 48 (1933).
  2.  Jump to essay-2289 U.S. at 57, 58.