Speculation surrounds President Trump’s proposed border tax, but until the details are released, we can only guess whether the actual plan will include a tax, a tariff or something else entirely. Ultimately, the president’s goal is clear: encourage companies to manufacture in the U.S. rather than abroad. Assuming that the idea of a border tax gains steam, does the president have unilateral authority to enact such a tax?

The Origination Clause of the U.S. Constitution will be the first hurdle to any attempt to impose such a tax through executive order. The Origination Clause in Article I of the U.S. Constitution provides that “All Bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other Bills.”[1]

In U.S. v. Munoz-Flores, the Supreme Court considered whether a special assessment that was imposed under a federal statute to provide a source of funds for the Crime Victims Fund constitutes a “Bil[l] for raising Revenue” within the meaning of the Origination Clause.[2] In holding that the special assessment was not a bill for raising revenue, the Court distinguished a statute creating a particular governmental program (and that raises revenue to support that program) from a statute that raises funds generally and that are paid into the general treasury.[3] The former is not a ‘Bill for raising Revenue’ within the meaning of the Origination Clause.[4] According to the Court, revenue bills “are those that levy taxes in the strict sense of the word, and are not bills for other purposes which may incidentally create revenue.”[5]

The holding suggests President Trump might be authorized to enact a border tax, a special assessment or a fee with the specific purpose of, for example, funding a new job training program for displaced workers so long as the tax, assessment or fee is intended to support that program. The president could also go a step further and make it clear that the purpose of imposing the tax on imports is not to raise revenue, but to protect U.S. jobs; all funds would be used specifically to retrain workers under certain government training programs. If the tax is not considered a revenue bill under Munoz-Flores, then it would not implicate the Origination Clause.

The White House recently indicated that it would issue a comprehensive tax plan in the coming weeks. Whether the border tax will be addressed as part of that plan remains to be seen.