How Congress can take back control over tariffs

In Article I, the Constitution conferred on Congress the “Power to lay and collect Taxes, Duties, Imposts and Excises,” and “regulate Commerce with foreign nations.” For almost 150 years, Congress exercised its authority over commerce by, among other actions, raising and lowering tariffs on imported goods. The President had the authority to negotiate treaties, but had to find authority for specific actions related to international trade in statutes.

In the twentieth century, however, Congress began to delegate some of its power over trade to the President. In the Reciprocal Trade Agreement Act of 1934, Congress gave the President the power to modify existing duties or add import restrictions — for a limited time period and subject to review — if he found current practices “unduly burdening.” Subsequent legislation authorized the President to set tariffs by proclamation. These bills have been used — and abused — by Democratic and Republican presidents. Congress should revise or rescind several of them, take back control over tariffs, and begin to restore checks and balances in the federal government.

The best place to begin is the Trading with the Enemy Act of 1917. A broad grant of power, to be exercised only “during the time of war,” the statute authorized the president to regulate, prevent or prohibit (among other things) transactions involving “any property in which a foreign country… has any interest.” In 1971, President Nixon imposed a 10 percent tariff on nearly all goods entering the United States. His unilateral action was constitutional, he declared, because the Korean War had not (officially) ended.

Section 232 of the Trade Expansion Act of 1962 permits the President to take such actions as he “deems necessary” to adjust imports so that they “will not threaten to impair national security.”  President Trump used the (in this case) preposterous national security rationale in Section 232 when he imposed tariffs on steel and aluminum imported from Mexico and Canada, and threatened to levy additional duties on products imported from the European Union. With a somewhat more plausible national security claim, Trump has raised tariffs on many Chinese imports. And this week, the president announced that tariffs on goods from Mexico will go up on June 10, and will continue to rise until the Mexican government stops illegal immigration into the United States.

The Trade Act of 1974 allows the President to implement a 15 percent tariff if “there is an adverse impact on national security from imports,” such as “a large and serious” balance of payment deficit or an “imminent and significant depreciation of the dollar.” After 150 days, however, Congress would have to approve the actions taken by the executive branch. Citing the Trade Act of 1974, President George W. Bush imposed tariffs in 2002 and President Barack Obama levied duties on Chinese tires in 2009.

Politicians (and some economists) disagree about whether trade wars are “easy to win,” about their impact on the domestic and global economy, and about the benefits to the United States from international agreements like NAFTA and the Trans-Pacific Partnership. But there should be bi-partisan agreement that Congress has ceded too much of its authority over tariffs to the president.

Some members of Congress on both sides of the aisle are sounding the alarm. Sen. Pat Toomey (R-Pa.) and Sen. Mark Warner (D-Va.) have introduced a bill, with a rigorous definition of national security that requires congressional approval for tariff-related action. Sen. Chuck Grassley (R-Iowa), chair of the Finance Committee, who has called the tariffs on Mexico “a misuse of presidential tariff authority and counter to congressional intent,” has indicated he might support their bill or introduce one of his own. Introduced by Sen. Mike Lee (R-Utah) in 2017, the Global Trade Accountability Act mandates that “unilateral trade actions,” defined as actions prohibiting the importation of an article, increasing or tightening a tariff-rate quota, or altering the terms of existing trade agreements, “shall require congressional approval.”

Trade is, alas, not the only issue on which the prerogatives of (an asleep at the switch) Congress have been usurped by the executive branch — but, perhaps in conjunction with legislation that reasserts Congress’ authority over arms sales to foreign countries, Congress can win a tariff war of its own and strike an urgently necessary blow for checks and balances.

Glenn C. Altschuler is the Thomas and Dorothy Litwin Professor of American Studies at Cornell University. He is the co-author (with Stuart Blumin) of Rude Republic:  Americans and Their Politics in the Nineteenth Century.