It's Time for Congress to Act on Trade

As the Trump administration imposes tariffs on imported steel, and threatens further tariffs on goods from China and on imported cars, Congress has been a curious bystander.

Curious because the power to regulate international trade, according to the US Constitution, resides solely with Congress, not the executive branch. Article 1, Section 8 states plainly that, “Congress shall have Power …To regulate Commerce with foreign Nations.” Article II on the executive branch gives no such power to the president.

The Trump administration imposed the tariffs on imported steel under Section 232 of the Trade Expansion Act of 1962 that authorizes the president to block imports that are deemed to threaten national security. Congress passed Section 232 believing it would be seldom used and then only in the case of a genuine threat to national security. By any objective assessment, the Trump steel tariffs fail that test.

For the benefit of the US economy and good constitutional government, a movement is afoot in Congress to re-assert its rightful authority over US trade policy. Legislation proposed by Senators Bob Corker (R-TN) and Pat Toomey (R-PA) would amend Section 232 to require congressional approval before the president could impose any tariffs. The bill would require that any tariffs proposed by the president under Section 232 procedures would require that Congress pass a Joint Resolution approving the tariffs within 60 days. If no resolution is passed, the tariffs would not go into effect. The bill contains no waiver power for the president to circumvent the requirement.

This seems an eminently reasonable attempt to clarify the constitutional authority and legislative intent of Congress. In a true national emergency, there should be no trouble mustering a simple majority in both chambers of Congress. At the same time, Congress would be able to veto any abuse of the law for protectionist purposes, which is clearly the case with the Section 232 steel tariffs and the current investigation into auto imports.

In a recent article, I spelled out the unique historical circumstances surrounding Section 232 that require congressional action:

"Section 232 and other administrative trade laws were predicated on a responsible chief executive who would act in a way that represents the national interest. Practically speaking, presidents have almost always been more pro-trade than Congress, since the president answers to a national constituency while congressmen and senators represent more parochial interests. But now, perhaps for the first time in American history, Congress is confronted with a president determined to impose his own protectionist agenda independent of the legislative branch."

Congress needs to act soon before any further damage can be done to our economy and our constitutional form of government.