[rayiner]

Tariffs have elements of both taxes (which Congress must levy) and foreign policy (which is principally the domain of the President). So as a legal matter, the delegation of power to set tariff rates is a fuzzier case than for other delegations. Though I think on balance, given that the tariff act of 1789 incorporated a specific percentage rate, the founding generation probably saw tariff rates as being the domain of Congress.

That said, what’s the correct answer is only weakly relevant. One side vigorously defends the existence of executive-branch agencies that are supposedly “independent” of the President but somehow can make regulations with the force of law like Congress. The GOP would be committing political malpractice if they listened to those people’s quibbles about non-delegation doctrine.

Your charge of hypocrisy is misplaced. A charge of hypocrisy has persuasive force only insofar as the argument is “your rule isn’t a good one because you can’t even follow it yourself.” You can’t invoke it to insist that your opponents adhere to rules that you don’t even accept as valid. Constitutional norms are a two-way street. If you think “emanations from penumbras” is constitutional law, then I’m under no obligation to apply a different standard from that.