The Democratic nominee for Michigan governor is promising Canadian “carve-outs.” The Constitution raises a much harder question: Where exactly would a Michigan governor get the authority to bypass a federal tariff?
Michigan Secretary of State and Democratic gubernatorial nominee Jocelyn Benson has made an extraordinary promise to Michigan voters: if elected governor, she says she can negotiate directly with Canada to protect Michigan from President Donald Trump’s tariffs.
There is just one enormous problem with that promise.
The governor of Michigan does not control United States tariff policy.
Benson has repeatedly promoted what she calls “subnational agreements” between Michigan and Canada. Her campaign has described them as “carve-outs” that could protect Michigan businesses, consumers and the auto industry from federal tariffs.
On September 30, Benson said she would negotiate agreements “simply between Michigan and our neighbor to the north” to find ways to protect Michigan border crossings from federal tariff policies. Her campaign has made similar statements repeatedly. (jocelynbenson)
But Benson has gone considerably further than simply promising better relations with Canada.
During a September 6 appearance on CBS's Face the Nation, Benson said that as governor she could meet Canadian officials and find ways to ensure Michigan-Canada trade “gets around these tariffs.”
That wording matters.
Because governors can negotiate, cooperate and advocate.
They cannot rewrite federal tariff law.
CBS Immediately Asked the Obvious Question
CBS moderator Margaret Brennan challenged Benson directly.
If the tariffs are being imposed by the federal government, Brennan essentially asked, how could Michigan possibly cancel out those costs at the state level?
Benson did not identify a federal statute giving Michigan an exemption. She did not identify presidential authority allowing Michigan to establish its own tariff schedule. And she did not explain how an agreement between Michigan and Canadian officials could legally eliminate a tariff imposed under federal authority.
Instead, she returned to the idea of subnational agreements and said Michigan could find ways for trade with Canada to “get around” the tariffs.
That isn't a minor detail in her proposal.
It is the central legal question.
If Benson is merely proposing cooperation with Canada to reduce other costs associated with trade, she should say precisely that.
If she is claiming that Michigan can negotiate a Canadian “carve-out” that exempts goods from a valid federal tariff, she needs to explain where that authority exists.
Tariffs Are Federal Policy, Not Michigan Policy
The Constitution did not create 50 separate American trade policies.
Article I gives Congress authority over commerce with foreign nations. The Constitution also sharply restricts states' authority over imports and exports.
And Article I, Section 10 specifically restricts states from entering agreements or compacts with foreign powers without congressional consent in circumstances covered by the Compact Clause. The Constitution Annotated published by Congress notes these explicit restrictions on state power.
Then there is the Supremacy Clause.
Valid federal law is the supreme law of the land. A state cannot simply enact a conflicting policy because its governor believes Washington made a bad decision.
That principle applies whether the governor is a Republican fighting a Democratic president or a Democrat fighting a Republican president.
Michigan does not get a constitutional veto over Washington simply because federal policy disproportionately affects Michigan.
Imagine the Reverse Situation
The constitutional problem becomes obvious if the political parties are reversed.
Suppose a Democratic president imposed federal environmental restrictions on imports from another country.
Then imagine a Republican Michigan governor announcing:
I disagree with Washington, so I'm negotiating directly with that foreign country to create a Michigan carve-out that gets around the federal restrictions.
Would Democrats accept that?
Would Benson?
Almost certainly, the immediate question would be whether a governor was attempting to nullify federal law.
That is precisely why constitutional limits cannot depend upon which party controls Washington.
Michigan Can Work With Canada. That's Not the Same Thing.
None of this means Michigan's governor must sit silently while federal trade policy damages the state.
Michigan and Canada share enormous economic interests. A governor absolutely can maintain relationships with Canadian officials, promote Michigan exports, encourage Canadian investment, coordinate infrastructure projects, work on supply-chain problems and lobby Washington for exemptions or changes in federal policy.
A governor could also pursue lawful state policies designed to offset some economic consequences of tariffs.
Those are legitimate exercises of state leadership.
But Benson's rhetoric repeatedly goes further.
Her own campaign said on September 14 that she would negotiate agreements so Michigan-Canada trade could “get around these tariffs.” (jocelynbenson)
More recently, her campaign quoted her describing “carve-outs” between Michigan and Canada designed to protect Michigan from the tariffs. (jocelynbenson)
Those claims deserve scrutiny.
Where Is the Legal Authority?
Benson is running to become governor of Michigan, not president of the United States and not the United States Trade Representative.
So there are straightforward questions she should answer:
What specific legal authority allows a Michigan governor to negotiate a tariff “carve-out” with Canada?
Would the agreement require approval from Congress or the federal executive branch?
Would U.S. Customs and Border Protection still collect the federal tariff when Canadian goods enter Michigan?
If the federal tariff remains payable, what exactly does “get around these tariffs” mean?
If Benson isn't claiming Michigan can override the tariff itself, why repeatedly describe the proposal as a way to “get around” federal tariffs?
Those aren't partisan questions.
They are constitutional ones.
A Governor Cannot Create Her Own Foreign-Trade Policy
There is an important distinction Benson's campaign appears determined to blur.
A governor can oppose federal policy.
A governor can lobby to change federal policy.
A governor can challenge federal action in court when there is a legitimate legal basis.
A governor can cooperate with Canadian officials on matters within state authority.
But a governor cannot simply declare that Michigan has negotiated its way out of federal law.
If Washington has imposed a valid tariff under federal law, Michigan cannot erase that tariff through an agreement negotiated in Lansing or Toronto.
That's federal supremacy.
And no campaign slogan changes it.
Benson Owes Michigan More Than a Promise
Perhaps Benson has something narrower in mind.
Perhaps “get around” doesn't mean circumventing the tariff legally. Perhaps she means finding efficiencies, subsidies, procurement arrangements, supply-chain changes or other policies that reduce the economic impact of tariffs without eliminating them.
If that's the proposal, Benson should explain it.
Because telling Michigan voters that their governor can negotiate “carve-outs” with another country and “get around” federal tariffs creates an impression of gubernatorial authority that simply does not exist if she is talking about overriding the tariff itself.
Michigan voters deserve specifics before Election Day.
Benson is free to argue that Trump's tariffs are economically destructive. She is free to campaign against them. She is free to demand that Congress repeal them or that the president withdraw them.
What she cannot credibly promise is something the Constitution does not give a Michigan governor the power to deliver.
Michigan is a state, not a sovereign nation with its own tariff policy.
And whoever occupies the governor's office remains bound by the same Constitution and federal laws as everyone else.
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