Smoot, Hawley, and Trump

Key takeaways

• Congress owns tariff power, and Smoot-Hawley shows exactly how that looks. Article 1 of the Constitution explicitly gives Congress the power to lay taxes, duties, and imposts. The 1930 Smoot-Hawley Act exercised that power directly: Congress wrote out tariff schedules across 95 pages covering more than 20,000 goods at an average 20% rate. The results were catastrophic. Other countries retaliated, U.S. exports and imports fell nearly 70% by 1932, and both Smoot and Hawley lost reelection. Constitutionally, though, the act was a textbook use of congressional authority.

• Congress gradually handed tariff authority to the president through delegation and emergency powers. Starting in 1916, Congress created the nonpartisan International Trade Commission to manage trade policy complexity. Then, through laws like the International Emergency Economic Powers Act (IEPA, 1977), Congress allowed the president to "regulate" imports and exports during declared national emergencies involving unusual or extraordinary threats from abroad. IEPA was itself an attempt to constrain presidential power after Nixon's use of the earlier Trading with the Enemy Act to impose a 10% tariff on all imports in 1972, yet presidents of both parties have invoked it dozens of times since.

• Trump invokes IEPA to justify global tariffs, but the legal foundation is shaky. He declared two emergencies: that Canada, Mexico, and China are not blocking fentanyl flows, and that the United States carries ongoing trade deficits. Neither court that reviewed the case found this persuasive. The Court of International Trade ruled against the administration in May 2025, and the Federal Appeals Court reached the same conclusion in August 2025. Both held that "regulate" in IEPA does not encompass the power to impose tariffs, especially since no prior president has ever used IEPA to impose global, open-ended tariffs.

• The major questions doctrine is the central legal tool, and it cuts against Trump. The Supreme Court's conservative majority has established that if a statute's ambiguous language would cover a power of deep economic and political significance, Congress must have granted that power clearly—courts will not assume the executive gets it by implication. The Court applied this doctrine in 2023 to invalidate Biden's student loan forgiveness program, holding that "waive or modify" in the HEROES Act did not mean canceling $1.6 trillion in debt. The Court wrote that Biden modified loans "only in the same sense that the French Revolution modified the status of the French nobility." If "waive or modify" does not mean cancel loans, the parallel argument runs, then "regulate" in IEPA does not mean impose global tariffs.

• The Supreme Court fast-tracked the case (VOS Selections v. Trump) for arguments on November 5th. A ruling against Trump would confirm that tariffs of this scope require explicit congressional authorization. A ruling for Trump would represent a major expansion of presidential economic power. Trump has warned that invalidating his tariffs will "literally destroy the United States of America"—which the professors note it plainly would not.

• The real issue is the collapse of inter-branch rivalry. The Constitution's separation of powers was designed adversarially, with each branch expected to guard its authority against the others. Congress delegated emergency powers during the 20th century partly for efficiency and partly in good faith. But extreme partisan alignment has replaced institutional loyalty. IEPA technically allows Congress to terminate any emergency declaration by joint resolution; Congress has never done so against a president's wishes.

People, organizations, products, and links mentioned

• D.H. Lawrence: British author of Lady Chatterley's Lover (1928), the novel at the center of the 1930 Senate censorship debate
• Senator Reed Smoot (Utah): co-namesake of the Smoot-Hawley Act; led the Senate's anti-obscenity push
• Representative Willis Hawley (Oregon): chaired the House Ways and Means Committee that originated the tariff bill
• Senator Bronson Cutting (New Mexico): argued against book censorship on free-speech grounds during the Smoot-Hawley debate
• Ogden Nash: parodied Smoot in a 1931 poem, quoted in the episode
• Tom Lehrer: satirical songwriter; his 1965 song "Smut" closes the episode (the hosts note he recently passed away)
• President Herbert Hoover: signed the Smoot-Hawley Act in June 1930
• President Nixon: used the Trading with the Enemy Act in 1972 to impose a 10% tariff on all imports
• President Biden: relied on the HEROES Act for the 2022 student loan forgiveness program, struck down by the Supreme Court
• International Trade Commission: nonpartisan body Congress created in 1916 to manage trade policy
• Trading with the Enemy Act (1917)
• International Emergency Economic Powers Act / IEPA (1977)
• HEROES Act (Higher Education Relief Opportunities for Students Act, 2003)
• VOS Selections v. Trump: the Supreme Court case; arguments scheduled November 5th
• Robert Caro: author of the Lyndon Johnson biographies, cited for showing how senators once resisted presidential overreach on principle
• learnconlaw.com: the show's website
• Doomtree Records: provides the show's theme music; doomtree.net

Notable moments

• A senator during the 1930 debate declared Lady Chatterley's Lover so "beastly" that reading one page was enough, and that he would rather have his child use opium than encounter such books.
• Senator Cutting's rebuttal named actual titles available at American bookstores at the time: Hot Dog, Hot Lines for Flaming Youth, Jim Jam Gems, and Whiz Bang.
• The headline Smoot generated: "Smoot Smites Smut," followed by Ogden Nash's poem that he "guards our homes from erotic tomes by reading them all himself."
• The Ferris Bueller's Day Off reference: the droning economics teacher asking "Anyone? Anyone? The Tariff Act? Anyone? Raised or lowered... raised tariffs."
• The Supreme Court's line from the student loan case: Biden modified loans "only in the same sense that the French Revolution modified the status of the French nobility."
• Tom Lehrer's "Smut" lyrics, read aloud by Roman Mars at the episode's close: "I've got a hobby, rereading Lady Chatterley."
• Roman's closing observation: Article 1 reads as if "the tie goes to Congress almost all the time," while the adversarial design of the Constitution requires branches to guard their own turf, something he says is increasingly absent from contemporary politics.

Time saved: 32 minutes.