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Professor Rebecca Kysar Op-ed on Constitutionality of Trump’s Tariff Plan Appears in The New York Times

01/03/2017

In an op-ed in the Jan. 3 edition of The New York Times, Professor Rebecca Kysar examines why President-elect Donald Trump’s plan to impose a 5 to 10 percent tariff on imports through an executive order may not be constitutional.

Kysar explains that the proper path to imposing tariffs begins with Congress, particularly in the House of Representatives through the Origination Clause. The clause states that any bills associated with raising revenue must originate in the House, but the Senate may propose or concur with amendments as in the case of other bills.

“The founders thought about this issue a lot,” Kysar writes. “After all, taxes, as every grade schooler knows, fueled the colonies’ push for independence. So they wrote the Constitution, and its Origination Clause, to give the taxing power to the part of government that is closest to the people, thereby protecting against arbitrary and onerous taxation.”

Kysar suggests the president-elect could still ensure his desired outcome by pushing for a “border adjustment tax,” a proposal already being considered in the House as part of comprehensive tax reform.

Kysar also examined the Origination Clause in her 2014 Washington University Law Review article “The 'Shell Bill' Game: Avoidance and the Origination Clause.” Her extensive scholarship examines tax treaties as well as the tax legislative process and has appeared in the Cornell Law Review, the Iowa Law Review, the Notre Dame Law Review, the University of Pennsylvania Law Review, the Washington University Law Review, and the Yale Journal of International Law, among others.

At Brooklyn Law School, Kysar teaches and researches in the areas of federal income tax, international tax, and the federal budget and tax legislative processes.

Professor Kysar also had an op-ed appear in Slate on Jan. 5: “Republicans’ Dangerous Tax Reform Plan

Read the op-ed "Is Trump’s Tariff Plan Constitutional?" here.

Learn more about Professor Kysar’s work.