President-elect Trump has chosen Howard Lutnick, Chairman & CEO of Cantor Fitzgerald, to be the next U.S. Secretary of Commerce.
In the announcement, President Trump stated that Mr. Lutnick “will lead our Tariff and Trade agenda, with additional direct responsibility for the Office of the United States Trade Representative (USTR).”
Both Commerce and USTR have an array of trade functions, but somewhat varying roles when it comes to tariff rates.
Commerce takes the lead on investigations into whether imports are threatening national security, per Section 232 of the Trade Expansion Act of 1962 (“Section 232”).Under Section 232, the Commerce Secretary can recommend all sorts of relief to “adjust” imports to safeguard national security. Tariffs feature prominently in, and were used in the steel and aluminum Section 232 actions during President Trump’s first Administration.
USTR takes the lead in negotiating tariff agreements with other countries, as well investigations pursuant to Section 301 of the Trade Act of 1974 (“Section 301”). While Section 232 is more ‘inward’ looking, ensuring sufficient domestic production for national security, Section 301 is more ‘outward’ looking. USTR can use Section 301 to determine that rights under a trade agreement have been violated, and recommend tariff actions to the President to offset the “unfair” action abroad.
Tariffs For Revenue? That’s Treasury
Both President Trump and Howard Lutnick well understand how crucial tariffs have been in this country’s history, and how they served as an excellent revenue source.
As of the time of this writing, we do not yet know whom President-elect Trump will nominate Treasury Secretary. But it is imperative that this person be aligned with President Trump and Mr. Lutnick’s goal of replacing income tax with tariffs.
That’s because, per statute, the Treasury continues to be the Department responsible for customs revenue (tariffs & other customs fees).
This was unambiguous from 1789 until 2002. But in the wake of 9-11, Congress passed the Homeland Security Act of 2002. Before this law, the U.S. Customs service was organized as part of the Treasury, same as the Internal Revenue Service (IRS), and was primarily a revenue agency.
The Homeland Security Act, however, merged the U.S. Customs Service with border elements of the Immigration and Naturalization Service (INS, then part of the Deptartment of Justice) to form a new agency: U.S. Customs and Border Protection (CBP). CBP, in turn, was organized under the new U.S. Department of Homeland Security (DHS).
However, despite losing the customs agency, Treasury wasn’t completely out of the picture. Section 412 of the Homeland Security Act preserved Treasury’s statutory authority over customs revenue.
“Customs revenue” is broadly defined in the statute to include all aspects of tariff policy. It even includes ‘throwback’ references, such as “Enforcing reciprocal trade agreements”, which predate the creation of USTR.
Treasury Delegated Customs Revenue Authority to DHS
Section 412 did authorize Treasury to delegate its customs revenue authority to DHS, however, and Treasury Secretary John Snow promptly did so via Treasury Order 100-16 on May 15, 2003, just two months after his confirmation.
Timothy Skud served as the Treasury’s Deputy Assistant Secretary (DAS) for Tax, Trade, and Tariff Policy under the George W. Bush, Obama, Trump, and Biden Administrations. In 2008 testimony before Congress, DAS Skud summarized Treasury’s customs revenue authority as follows:
“While the authority for enforcing the laws involving customs revenue functions has been delegated to the Department of Homeland Security (DHS), the Treasury Department has retained an important role in this area. Specifically, the Treasury Department has sole authority to approve regulations concerning a wide range of functions involving revenue or regulating trade for economic purposes including import quotas, trade bans, user fees, origin, copyright and trademark enforcement, duty assessment, classification, valuation, preferential trade programs, and recordkeeping requirements. The Treasury Department also reviews Customs and Border Protection (CBP) rulings involving these topics that constitute a change in practice. In addition, the Treasury Department shares the chair of the Commercial Operations Advisory Committee (COAC) with DHS.”
In September 2024, law firm ST&R’s “Two Minutes in Trade” podcast reported rumors of further delegation of customs revenue function from Treasury to DHS.
Treasury Secretary Yellen did so on October 30, 2024, with Order 100-20.
The Biden Administration did not hire a replacement for Mr. Skud.
Treasury Unlikely To Stand By While Tariff Revenue Surges; Help Needed with De Minimis Too
Tariff revenue continued to grow, hitting a high of $104.6 billion in FY 2022. However tariff revenue shrunk in FY 2023 by more than 17% (CBP reported only a combined $92.3 billion in duties, as well as excise taxes, and other fees). The shrinkage is likely due in large part to the explosion in the use of “de minimis”, a customs loophole that allows for packages to be waived through, duty-free.
The de minimis loophole is a creature of regulation, created by the Treasury Secretary in 1994 per authority granted Treasury under Sections 498 and 321 of the Tariff Act of 1930. It will fall to President Trump’s Treasury Secretary to close the loophole.
As tariff revenue climbs into the hundreds of billions per year, it seems unlikely that that Treasury will continue its delegation to staff at DHS.
For Mr. Lutnick to lead the tariff and trade agenda in the next Administration, he will need an aligned Treasury Secretary to executive critical policies on customs revenue generation, customs valuation, and de minimis.
MADE IN AMERICA.
CPA is the leading national, bipartisan organization exclusively representing domestic producers and workers across many industries and sectors of the U.S. economy.
For Universal Tariff, Treasury Has Responsibility
President-elect Trump has chosen Howard Lutnick, Chairman & CEO of Cantor Fitzgerald, to be the next U.S. Secretary of Commerce.
In the announcement, President Trump stated that Mr. Lutnick “will lead our Tariff and Trade agenda, with additional direct responsibility for the Office of the United States Trade Representative (USTR).”
Both Commerce and USTR have an array of trade functions, but somewhat varying roles when it comes to tariff rates.
Commerce takes the lead on investigations into whether imports are threatening national security, per Section 232 of the Trade Expansion Act of 1962 (“Section 232”).Under Section 232, the Commerce Secretary can recommend all sorts of relief to “adjust” imports to safeguard national security. Tariffs feature prominently in, and were used in the steel and aluminum Section 232 actions during President Trump’s first Administration.
USTR takes the lead in negotiating tariff agreements with other countries, as well investigations pursuant to Section 301 of the Trade Act of 1974 (“Section 301”). While Section 232 is more ‘inward’ looking, ensuring sufficient domestic production for national security, Section 301 is more ‘outward’ looking. USTR can use Section 301 to determine that rights under a trade agreement have been violated, and recommend tariff actions to the President to offset the “unfair” action abroad.
Tariffs For Revenue? That’s Treasury
Both President Trump and Howard Lutnick well understand how crucial tariffs have been in this country’s history, and how they served as an excellent revenue source.
As of the time of this writing, we do not yet know whom President-elect Trump will nominate Treasury Secretary. But it is imperative that this person be aligned with President Trump and Mr. Lutnick’s goal of replacing income tax with tariffs.
That’s because, per statute, the Treasury continues to be the Department responsible for customs revenue (tariffs & other customs fees).
This was unambiguous from 1789 until 2002. But in the wake of 9-11, Congress passed the Homeland Security Act of 2002. Before this law, the U.S. Customs service was organized as part of the Treasury, same as the Internal Revenue Service (IRS), and was primarily a revenue agency.
The Homeland Security Act, however, merged the U.S. Customs Service with border elements of the Immigration and Naturalization Service (INS, then part of the Deptartment of Justice) to form a new agency: U.S. Customs and Border Protection (CBP). CBP, in turn, was organized under the new U.S. Department of Homeland Security (DHS).
However, despite losing the customs agency, Treasury wasn’t completely out of the picture. Section 412 of the Homeland Security Act preserved Treasury’s statutory authority over customs revenue.
“Customs revenue” is broadly defined in the statute to include all aspects of tariff policy. It even includes ‘throwback’ references, such as “Enforcing reciprocal trade agreements”, which predate the creation of USTR.
Treasury Delegated Customs Revenue Authority to DHS
Section 412 did authorize Treasury to delegate its customs revenue authority to DHS, however, and Treasury Secretary John Snow promptly did so via Treasury Order 100-16 on May 15, 2003, just two months after his confirmation.
Timothy Skud served as the Treasury’s Deputy Assistant Secretary (DAS) for Tax, Trade, and Tariff Policy under the George W. Bush, Obama, Trump, and Biden Administrations. In 2008 testimony before Congress, DAS Skud summarized Treasury’s customs revenue authority as follows:
“While the authority for enforcing the laws involving customs revenue functions has been delegated to the Department of Homeland Security (DHS), the Treasury Department has retained an important role in this area. Specifically, the Treasury Department has sole authority to approve regulations concerning a wide range of functions involving revenue or regulating trade for economic purposes including import quotas, trade bans, user fees, origin, copyright and trademark enforcement, duty assessment, classification, valuation, preferential trade programs, and recordkeeping requirements. The Treasury Department also reviews Customs and Border Protection (CBP) rulings involving these topics that constitute a change in practice. In addition, the Treasury Department shares the chair of the Commercial Operations Advisory Committee (COAC) with DHS.”
In September 2024, law firm ST&R’s “Two Minutes in Trade” podcast reported rumors of further delegation of customs revenue function from Treasury to DHS.
Treasury Secretary Yellen did so on October 30, 2024, with Order 100-20.
The Biden Administration did not hire a replacement for Mr. Skud.
Treasury Unlikely To Stand By While Tariff Revenue Surges; Help Needed with De Minimis Too
In Fiscal Year 2015 (FY2015), tariff revenue was $37 billion. By FY 2019, tariff revenue had surged to $72 billion following the initial deployment of President Trump’s tariff actions.
Tariff revenue continued to grow, hitting a high of $104.6 billion in FY 2022. However tariff revenue shrunk in FY 2023 by more than 17% (CBP reported only a combined $92.3 billion in duties, as well as excise taxes, and other fees). The shrinkage is likely due in large part to the explosion in the use of “de minimis”, a customs loophole that allows for packages to be waived through, duty-free.
The de minimis loophole is a creature of regulation, created by the Treasury Secretary in 1994 per authority granted Treasury under Sections 498 and 321 of the Tariff Act of 1930. It will fall to President Trump’s Treasury Secretary to close the loophole.
As tariff revenue climbs into the hundreds of billions per year, it seems unlikely that that Treasury will continue its delegation to staff at DHS.
For Mr. Lutnick to lead the tariff and trade agenda in the next Administration, he will need an aligned Treasury Secretary to executive critical policies on customs revenue generation, customs valuation, and de minimis.
MADE IN AMERICA.
CPA is the leading national, bipartisan organization exclusively representing domestic producers and workers across many industries and sectors of the U.S. economy.
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