Make Trade Policy Accountable Again

January 23, 2017

The Congress shall have power… to regulate commerce with foreign nations, and among the several states, and with the Indian tribes.” -Article I, Section 8, U.S. Constitution

Almost one year ago, long before either of our nation’s political parties had settled on a presidential nominee, I joined several conservative colleagues in the House and Senate to launch the Article I Project, a bicameral network of lawmakers working together to reclaim Congress’ constitutional powers that today are being improperly exercised by the Executive Branch.

The list of President Obama’s illegal abuses of executive power is long and widely criticized, in many cases by unanimous Supreme Court decisions. But the real scandal is the vast lawmaking powers that the Executive Branch wields today by law. For decades Congress has largely avoided the difficult and politically inconvenient trade-offs inherent in legislating, choosing instead to delegate sweeping regulatory powers to federal bureaucratic agencies.

As a result, unelected bureaucrats—not elected representatives in Congress—end up making the vast majority of the federal laws Americans must obey on a day-to-day basis. In 2016, for instance, Congress passed and the president signed 2,966 pages of new laws, while federal agencies issued 97,110 pages of new regulations—about 32 times as much.

When President Obama was in the White House and the Executive Branch was filled with far-left political appointees, most Democrats happily embraced this arrangement and most Republicans condemned it. But the results of November’s election have inspired many former champions, and many former critics, of executive legislating to have a change of heart on the question of how much presidential power is too much.

But one area where legislators on both sides of the aisle are concerned is trade. Throughout the campaign President-elect Trump advocated raising tariffs on imports from countries, like China, with whom the United States runs a large trade deficit. While some Americans support such a policy, there’s no denying that such a move would wreak havoc on many small and midsize manufacturers in my home state of Utah and across the country that rely on imports and globally connected supply chains.

The ongoing public debate over the topic of trade is exactly why Congress—the most publicly accountable and deliberative branch of the federal government—should be involved in any decision that would increase barriers to trade.

But like so many other public policy areas, Congress has already given the Executive Branch far too much power to raise tariffs without congressional approval. For example, Section 122 of the Trade Act of 1974 authorizes the president to deal with “large and serious United States balance-of-payments” deficits by imposing temporary import surcharges on any goods, not exceeding 15%.

While Section 122 confines the president’s authority to act within 150 days, Section 301 of the Trade Act of 1974 gives the United States Trade Representative (USTR), an office within the Executive Branch, indefinite authority to respond to other countries’ “unfair trade practice,” including currency manipulation and market access restrictions, by imposing new duties or establishing new trade barriers.

In theory, the USTR’s legal authority to act unilaterally under Section 301 is restricted to claims not covered by World Trade Organization (WTO) agreements. But it is unclear if any private party could challenge a Trump administration determination that an issue was not covered by WTO rules. Without an avenue to challenge such a determination in court, Americans could be powerless to stop the next administration’s tariff decisions, even ones for which that could have severe implications, on everything from our jobs and grocery bills to the nation’s foreign policy.
These are just two examples of the unilateral authority the president-elect and the new USTR would have at their disposal should they choose to use them. Other options exist in even older laws that have rarely, if ever, been used to increase trade barriers.

Congress must reassert its constitutional power “to regulate commerce with foreign nations.” That is why I will introduce the Global Trade Accountability Act, which would subject all Executive Branch trade actions (including raising tariffs) to congressional approval.

A similar bill, the Regulations from the Executive in Need of Scrutiny (REINS) Act, sets up the exact same process for all major federal regulations. That bill has passed the House of Representatives every Congress since 2010.

I have talked to President-elect Trump about the REINS Act and he has said he supports it. I hope we can all support the Global Trade Accountability Act too.