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Op-ed Placement

Congress Can Act to Reclaim Trade Authority Once and For All

BY Jason Pye
07/10/2019
Originally Published in The Washington Examiner by Jason Pye on 7/9/19.

Capitol Hill is focused on negotiations over the United States-Mexico-Canada Agreement, but there’s another discussion about trade policy that’s happening in the Senate Republican Conference.

Senate Finance Committee Chairman Chuck Grassley, R-Iowa, recently told reporters that legislation to curtail the president’s ability to unilaterally impose tariffs won’t be ready until after the August recess. Grassley has been vocal in his opposition to unilateral tariffs imposed by the Trump administration, although he has also acknowledged their actions are just reflective of a larger problem.

“It adds up to something pretty simple: Congress has delegated too much authority to the president of the United States,” he said in June. “The constitutional crisis comes from the elected representatives of the people over the last 80 years ... making a kingship out of the presidency of the United States.”

Indeed, Congress has ceded too much of its Article I authority to the executive branch. President Barack Obama’s runway federal bureaucracy that published hundreds of rules heightened congressional awareness of the growing regulatory state. Although Congress has undone some of the Obama administration’s midnight regulations through the Congressional Review Act, and the Trump administration has focused on deregulation, the regulatory state remains a threat.

The Constitution isn’t ambiguous on this subject: Lawmaking is the responsibility of the legislative branch. Tariffs, too, are a specifically enumerated responsibility of Congress, not the president, as outlined in Article I, Section 8. It states: “The Congress shall have power to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the United States.”

The problem becoming apparent under the Trump administration is the president’s ability to unilaterally impose tariffs under Section 232 of the Trade Expansion Act of 1962 and Section 301 of the Trade Act of 1974. The tariffs, unilaterally imposed by the Trump administration under the guise of “national security,” have diminished the positive impact of the 2017 GOP tax cut and represent the third-largest tax hike since World War II, according to a recent report from the National Taxpayers Union Foundation.

The details of the bill Grassley envisions combating this presidential overreach remain to be seen, but there are competing bills already pending before the committee.

Sen. Pat Toomey, R-Pennsylvania, has introduced the Bicameral Congressional Trade Authority Act, S. 287. This approach would require Congress to pass a joint resolution of approval within 60 days of a proposed trade action under Section 232 of the Trade Expansion Act. If the joint resolution of approval isn’t passed, the trade action cannot take effect.

Importantly, the bill would apply to recent trade actions, requiring congressional approval.

Not only would the Bicameral Congressional Trade Authority Act restore congressional authority over tariffs and subject even recent trade actions to congressional approval, but the bill would also take the determination of national security implications over imports out of the Department of Commerce and transfer this investigatory process to the Department of Defense. The term “national security” would also be properly defined to mean “the protection of the United States from foreign aggression” and “does not otherwise include the protection of the general welfare of the United States.”

Another path is the Trade Security Act, S. 365, sponsored by Sen. Rob Portman, R-Ohio. Like the Bicameral Congressional Trade Authority Act, the Trade Security Act would transfer investigatory authority and determinations of national security threats related to trade from the Department of Commerce to the Department of Defense.

The Trade Security Act would provide congressional disapproval of a trade action under Section 232, not approval. This is the key distinction between the Trade Security Act and the Bicameral Congressional Trade Authority Act. Moreover, the Trade Security Act has another flaw. Unlike other disapproval resolutions that Congress has considered under the Congressional Review Act, the disapproval resolution under the Trade Security Act wouldn’t be privileged. Rather, it would subject to the normal legislative process, including a filibuster.

A disapproval resolution, even one that’s privileged, doesn’t address other concerns. Obviously, any president can veto a disapproval resolution and continue to impose a trade action unless there are enough votes in both chambers of Congress to override the veto. A disapproval resolution also doesn’t solve the core problem that creates trade uncertainty: A president can still impose these tariffs unilaterally.

The Bicameral Congressional Trade Authority Act is a far superior bill and provides a framework for the Senate Finance Committee to consider as it develops legislation to mitigate the damage that a protectionist agenda has done and will continue to do to the United States economy.