Is Congress willing to assert responsibility for trade?

As the Senate’s impeachment trial dominated domestic headlines, President Trump was busy at the World Economic Forum in Davos. There, he trumpeted the United States’ economic strength to our European allies and admonishing them about the need to achieve fair terms of trade. “They have no choice” but to make a deal, Trump said of the European Union, warning that if a bargain is not struck soon, he would not hesitate to impose a punitive 25 percent tariff on European automobiles. 

Trump’s authority to take such an action is premised on a gross distortion of Section 232 of the Trade Expansion Act of 1962, which empowers the president to adjust tariff rates unilaterally upon a finding by the U.S. Commerce Department that a particular import harms “national security”—however defined. Working closely with Commerce Secretary Wilbur Ross, President Trump used this power to raise tariffs on steel and aluminum in 2018 and is ready to again use to target the importation of foreign cars and automotive parts. 

Section 232 is meant to ensure that the president can quickly act to protect America’s national security, but in Ross and Trump’s hands, it has turned into an all-purpose bludgeon with which to threaten America’s allies just as much as our adversaries. (Indeed, tariffs on Chinese goods have been imposed under entirely separate authority.) They reason that promoting American exports is vital to America’s economic interests is, according to Ross, “economic security is military security.”

Therefore, whenever American exports need a boost, Section 232 lies ready to provide President Trump with leverage.

Many members of Congress are horrified by this development. The legislature has been delegating its constitutional authority to regulate international commerce to the executive for nearly a century, but it did so with the understanding that the president was better positioned to liberalize trade in the national interest. Now that Trump has turned those assumptions upside-down, Congress has begun to seriously contemplate reasserting itself.  

The latest battle front is over the Commerce Department’s report on auto imports, which would serve as the justification for the imposition of tariffs under Section 232 should Trump decide he needs to bring the EU to heel. Wanting to see this report, Congress inserted into the year-end spending package a requirement to release it within 30 days. That period has now elapsed, but the Department refuses to release the report. It offers the tortured justification that revealing why restricting auto imports is so vital to national security would somehow itself imperil national security interests—since it might interfere with the ongoing negotiations. It is meant to hang over the proceedings as a vague shadow; exposed to the light of day, it might be a less effective weapon. 

The Office of Legal Counsel has given a dubious opinion accepting this logic as a valid assertion of executive privilege for ongoing “diplomatic efforts to address a national security concern.” This comes perilously close to saying that the president can do whatever he wants with tariffs, without providing any public justification, as long as he and his Commerce Secretary are willing to utter the incantation of “national security.”  

While Congress has created this problem for itself, some of its members have lately shown a refreshing willingness to consider their responsibility for the underlying statutory framework that has made Trump’s actions possible. According to some reports, members of the Senate Finance Committee are close to making a bipartisan attempt to limit President Donald Trump’s power to set U.S. trade policy unilaterally. Finance Committee Republicans appear to be genuinely committed to free trade and to oppose the president’s policies. The panel’s Democrats have little reason to empower a president that they see as out of control.  

It remains to be seen whether their colleagues in the House and Senate will follow through, or whether they are ultimately happier letting the president dominate trade policy. One reform seriously considered would have created a review procedure by which Congress could pass a resolution of disapproval for any action initiated under Section 232—but that would accomplish nothing, since the president could fend off such resolutions with his veto pen. Apparently, some in Congress are more concerned with giving legislators opportunities to appear principled than they with actually empowering Congress to determine final policy, and being held accountable for setting it. 

Congress has the means to stand up to the executive branch, if it wants to. Rather than accepting OLC-enabled stonewalling, it can and should threaten to withhold some portion of the Commerce Department’s appropriations next cycle if the agency does not quickly comply with its legal requirement to publicize the 232 report. Rather than putting in place a mechanism that allows the president the last word as long as he can avoid a veto override, Congress can create a process by which Congress would have to affirmatively approve presidential actions under Section 232 before they can take effect. 

In the wake of World War II and the Great Depression—the latter of which was exacerbated and prolonged by the Smoot-Hawley tariffs—the United States established itself as the primary architect and defender of the rules-based global trading system. Owing to this history, it has a special responsibility to guard this system zealously. By stretching statutes in bad faith and embracing the most protectionist agenda since Herbert Hoover, the United States is rapidly squandering an honorable legacy. It is incumbent on Congress to change course.