The Import Surcharge of 1971: A Case Study of Executive Power in Foreign Commerce

The importance of foreign trade in the conduct of foreign affairs demonstrates that many foreign commerce questions contain foreign affairs overtones. For example, President Nixon has recently noted that congressional restrictions on granting the Soviet Union most-favored-nation treatment would be "a hurdle to further detente." Although article I, section 8 of the Constitution vests the power to regulate foreign commerce in the legislative branch, the Congress has delegated a great deal of that power to the Executive. Moreover, it appears that the President possesses certain inherent powers in foreign commerce as a result of his extensive, albeit undefined, authority in foreign affairs. An examination of the President's foreign affairs power, therefore, is required to determine the extent of this derivative authority in the field of foreign commerce.

The Import Surcharge of 1971, pursuant to which the President imposed a ten per cent surcharge on goods imported into the United States in an effort to correct the balance of payments deficit, provides a useful vehicle for conducting an examination of the convergence of the statutory delegation in the area of tariff regulation and the Executive's inherent powers in foreign commerce.