After the shock and awe of President Donald Trump’s April 2 tariffs on everything from everywhere, the administration eventually negotiated agreements setting tariffs on imports generally at a lower than the threatened rate from about a dozen countries, including America’s largest trading partners. The new rates came as a relief for trade, but the lack of any clear authority from Congress or consultation with any of the rest of us—including importers, producers, and consumers—rendered them illegitimate if not illegal. We, the people, were never asked what we thought about any of this.
Living in a republic, we should expect our elected representatives to be directly involved before a tax is imposed. In a democracy, there should also be an opportunity to be heard when a measure affects one’s interests in any serious way. This is the way it had been for decades and as recently as the first Trump administration. No longer.
The first of these deals was struck back in May 2025. The US is to create an annual quota of 100,000 vehicles for UK automotive imports at a 10 percent tariff rate; other UK auto imports would pay the applicable 25 percent rate. The tariff on most other imports from the UK was to be 10 percent. The President has since then entered into trade agreements placing 15 percent duties generally on goods from Japan, the European Union, and Korea.
The new US duty rates on others vary: Malaysia (19 percent), Cambodia (19 percent), Vietnam (20 percent), and Western Hemisphere countries, 10 percent (Argentina, Guatemala, El Salvador) or 15 percent (Ecuador). Imports from China bear a higher duty rate due to the additional tariffs imposed under Section 301 of the Trade Act of 1974, authorizing penalties on countries deemed to have engaged in unfair practices. In all these agreements, the other party consents to the US levying a specified minimum tariff on all of their goods sold to American consumers and industries.
This regime is nothing like the process that Congress set out for trade negotiations and presidents followed during the preceding 50 years. In the past, the first step was for Congress to prescribe negotiating objectives in a statute. This was set out in the Trade Act of 1974 and renewed periodically, most recently as Trade Promotion Authority in 2015 (TPA).
The administration was required to solicit the advice of the bipartisan US International Trade Commission (USITC), which provides analyses of potential outcomes of negotiations, benefitting from input from anyone who cares to give it during public hearings. To preserve free trade for North America, in the US-Mexico-Canada Agreement (USMCA), the successor to the North American Free Trade Agreement (NAFTA) of the 1990s, the USITC issued a 270-page report, with ten annexes, on the likely impact of the trade agreement on key sectors of the economy. It included a summary of the views it heard from those who testified before it at public hearings.
Views are also supposed to be solicited from an advisory committee system, consisting of 26 committees with a total membership presently, according to the government’s websites, of approximately “700 citizen advisors,” representing “industry, agriculture, small business, labor, service industries, retailers, non-federal governments, nongovernmental environmental and conservation organizations, and consumer interests who have expertise in general trade, investment, and development issues,… crucial resources for the United States Trade Representative.” Reports from these committees are supposed to be made public along with the advisors’ opinions on the proposed agreement.
According to past accepted practices, before the president could make any offer in a negotiation—whether to reduce, continue or increase a tariff, or modify any other trade barrier—the 1974 statute required that he receive a summary of the public hearings that are required to be held by the executive branch and the advice he received from the USITC.
In addition, the president is required to have consulted throughout the negotiating process, and drafting of the implementing bill, with the committees of the House and Senate having jurisdiction. The committees hold public hearings of their own.
These procedures have entailed time-consuming delays in the past. But the benefit for the administration of following the statutory framework that Congress provided is that instead of the normal legislative process, where consideration could be blocked and where unacceptable amendments could be added that would have the effect of changing what had been negotiated, even nullifying it, Congress adopted a procedure for approving and implementing the resulting trade agreement by a simple majority vote, within a fixed time and without amendment.
The first Trump administration undertook the negotiation of the USMCA using this procedure. One direct consequence of following these procedures and allowing extensive opportunities for those concerned to be heard is that Congress voted in favor of the USMCA. It was signed into law on January 29, 2020, having been approved by the House of Representatives on December 19, 2019, by a vote of 385-41, and by the Senate on January 16, 2020, by a vote of 89-10. It entered into force five months later. The domestic process worked, delivering overwhelming domestic political support. It was heralded at the time by President Trump as a triumph.
The current circumstances are dramatically different. The Trump trade agreements were not preceded or accompanied by any public hearings. There was no investigation by an independent agency. Private sector advisors were not asked for their views. Congress was not consulted.
The Fifth Amendment to the US Constitution provides that “No person shall be. . .deprived of. . .property, without due process of law.” There is no property right in a given level of tariff. Congress can change a tariff rate by majority vote, and if the president signs the resulting trade legislation, a new tariff applies. In various circumstances Congress can and has lawfully delegated to the president the authority to restrict imports, including through the use of tariffs. That is well-established. But the procedures to affect the property right must be followed.
The Supreme Court has before it for decision whether the blanket “reciprocal tariffs” are authorized. The justices are rightly concerned about whether the power to tax has been delegated to the president without limits and whether this is permitted by the Constitution. The Court should also be concerned about whether the president has the authority to set any tariff by agreement with a trading partner without allowing those affected to be heard.
A primary benefit of obtaining agreement to a tariff in a bilateral agreement is that it assures the absence of retaliation by a trading partner and gives a veneer of legitimacy and potential stability to the deal struck. Not at the table, however, are those who ultimately must pay the tariff.
Why has there not been more of an outcry at their being excluded from any process? Because the entities left out of the process have had a lot more to be worried about. Compared with the unilaterally declared rates announced at the White House, the deals came as a relief. While there is no guarantee that the tariff rate in an agreement will be maintained, it is more likely to provide a modicum of certainty, and the rates are generally more “livable” than unilaterally imposed rates.
To be sure, a degree of stability is returning to trade. Those affected are settling in to pay higher US tariff rates. Nevertheless, democracy as well as our republican form of government have been eroded. Restraints on government action—the procedures that have governed the negotiation of trade agreements—have been set aside. Those who value the benefits of trade should be deeply disquieted.
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