Ship Money
Feb. 2nd, 2025 10:12 am![[personal profile]](https://www.dreamwidth.org/img/silk/identity/user.png){kind=small}
jsburbidge In the run-up to the Civil War, Charles I levied money via a mechanism involving taxation to support the building and outfitting of ships. It required no parliamentary consent, and was challenged in court; Charles won.
The parliamentary party claimed that the levy violated a principle that the Crown required the consent of Parliament to levy taxes. If you read Coke, or the Whig writers who follow him, you will gather that this is correct, and that there were ancient liberties going back to very early days of which this was one. By this argument, the parliament of the Petition of Right and the Long Parliament were merely defending an ancient constitution which the Crown was assaulting.
With better scholarship and more disinterested scholars, it's now fairly clear that Coke and the parliamentarians were wrong all along the way. It would be more accurate to say that Parliament had begun to take the bit between its teeth and extend its powers under Elizabeth (partly driven by economic, partly by religious changes) but that the Tudors in general had the personal prestige needed to keep these trends in check. With the accession of the Stuarts to the throne, these tensions became public, and the slide toward what would become the Civil War began.
The question of the legality of Charles' levies is now a dead issue: for all of the pretences of continuity, England has had two revolutionary resets to the fundamental principles governing the relation of Crown and Parliament (1642-1660, 1688, finally settled for good in 1745) and appeals to anything before the Restoration are pure antiquarianism.
The founders of the United States were mainly Whigs - a very few figures with more traditionslist views were among them, but most such colonists were Tories/Loyalists in the Revolution. They took as gospel the principle that the legislature alone had the power to levy taxes, and wrote it into their constitutions.
There has been some erosion of this over the centuries (both in the US and elsewhere) by the growth of "secondary legislation" (i.e. regulations) where the legislature provides a framework but the executive can set details by direct regulation. This the legislature can, for example, establish a tax but allow the executive to set the rates. The same applies to measures which have a secondary effect of bringing money into the fisc (e.g. fines) but which are not primarily motivated by that goal.
The ability of the executive to set tariffs in an emergency is one such exception. It allows action to protect a national interest from economic threat without going through a lengthy process of legislation.
The tariffs levied by Trump claim to be allowed by this exception. However, given both the facts on the ground - it's hard to argue that any such emergency exists - and Trump's own statements elsewhere, it's clear that Trump wants tariffs because they raise money[1]. That is, he is performing an end run around the principle that revenues are to be raised only by the legislature using the declared "emergency" as a fig leaf to cover the real reasons
[1]In his view, from foreign countries; more realistically, from domestic importers and consumers.
This is actually, from an American perspective, a more serious issue than that of the economic dislocation caused by the tariffs. Like the attack on birthright citizenship, or the attempts to impound funding flows authorized by Congress, or the attempt to buy out federal workers en masse without authorization for the expenses or to remove Inspectors General with no notice or reasons being provided, this is an attempt to arrogate to the Executive Branch powers granted neither by the Constitution nor by explicit acts of Congress[2]. The US is now in the middle of a constitutional crisis of a scale not seen since the American Civil War.
[2]The tariffs are levied under an Act of Congress, but the claim that an emergency may be declared arbitrarily and with no evidence to trigger the condition goes well beyond the legislation. I expect that when this is challenged in court the Administration will claim that the determination is not subject to review by the courts.
no subject
Date: 2025-02-02 05:19 pm (UTC)I might hope that they would realise just how dangerous granting the president the power arbitralily to declare States of Emergency is but after the immunity ruling I'm not inclined to optimism. We'll just have to hope no-one burns down the Reichstag.
no subject
Date: 2025-02-03 06:42 am (UTC)On the balance between the US govt branches, SCOTUS/US Constitution as minor deities, etc
Date: 2025-02-19 05:53 pm (UTC)Re: On the balance between the US govt branches, SCOTUS/US Constitution as minor deities, etc
Date: 2025-02-19 08:17 pm (UTC)Marbury v Madison has always been, in one sense, hanging out there in midair like Wile E. Coyote over a canyon. In another sense, it mirrors what just about every other country with a binding constitution does: treat findings that an Act or an exercise of power is unconstitutional as an enforceable finding of ultra vires, rather than a simple declaratory remedy. (This means almost everybody except the UK, at least in the West. Even the UK had constraints of this sort when it was in the EU.)
There are two really messy prospects for the US right now. The first is that the Roberts Court will suddenly reverse its States Rights and pro-Congress biases and back the administration by allowing exercises of executive power that were previously though to be beyond the pale; the second is that the courts will curb the administration and that it will ignore the courts. In either case it will lead to a likely increase in the likelihood of people deciding to take the law into their own hands, on the grounds that they cannot rely on the courts. And that is the precondition for a civil war.
Re: On the balance between the US govt branches, SCOTUS/US Constitution as minor deities, etc
Date: 2025-02-20 05:52 pm (UTC)