Good afternoon, thank you all for being here.
And thanks to the Federalist Society for organizing this conference on restoring Article I of the Constitution, which is a subject near and dear to my heart.
Article I, of course, is the section of the Constitution that enumerates the powers of Congress.
I think it is no coincidence that our Founding Fathers chose Congress for the first article in the Constitution, ahead of the president and the judiciary.
They intended the legislative branch to be first among equals, if you will, with remarkable power over taxing, spending, declaring war—and trade, which is what I would like to talk to you about today.
As we will see, Congress has abdicated its constitutional role in guiding the nation’s trade policy.
We have given that power away to the executive—concentrating it in the hands of one man, yes, but also empowering the army of bureaucrats and special-interest lobbyists that revolve around him.
I’m reminded of a fascinating story from the LBJ administration.
In December 1963, President Johnson signed a presidential proclamation that imposed crushing tariffs on light trucks and a couple other products coming from Europe.
The move was retaliation for tariffs that the European Economic Community had imposed on American broiler chickens which is why today we refer to this tit-for-tat as the “Chicken War.”
European tariffs on American goods were the stated reason for LBJ’s action, but as was so often the case he had an unstated reason as well.
You see, the 1964 election was approaching, and it was rumored that the United Auto Workers would go on strike during the height of the campaign.
So when Johnson decided to retaliate against Europe for the chicken tariffs, he threw the UAW a bone by slapping European automakers with a 25 percent tariff.
Johnson got what he wanted out of this special-interest swap—the UAW fell in line during the election.
But the consequences of this tariff were steep: Certain models of Volkswagen cars all but disappeared from American roads—including the Type 2 van, better known in popular culture as the “Mystery Machine” from Scooby Doo.
And today, decades after the “chicken war,” the 25 percent tariff on trucks remains in effect, causing headaches for foreign and domestic automakers.
That story illustrates the perils of giving unilateral power over trade to a single person.
All it took was a well-timed phone call from union boss Walter Reuther [“Ruth-er”] to take the Mystery Machine off the market.
There was no input from the American people, no debate or vote in Congress. Just a pen and a phone, to borrow a phrase from a more recent president.
As you know, tariffs of this sort are not subjects of merely historical interest.
Just two weeks ago, President Trump unilaterally imposed crushing tariffs on steel and aluminum imports, citing national security concerns.
The president imposed these tariffs against the wishes of some of his advisers and many members of Congress—myself included.
Personally, I am concerned that these tariffs will kill more good American jobs than they will save.
After all, steel mills employ roughly 140,000 Americans—but steel-consuming industries employ 6.5 million Americans.
Some of those American workers surely will lose their jobs when tariffs raise the price of raw materials.
But you do not have to oppose tariffs on policy grounds in order to see the flaws with the process that created them.
The present system vests awesome power in a single person, who can raise tariffs and even pull the country out of trade agreements without so much as sending a tweet to Congress.
This is the exact opposite of how the Founding Fathers designed our system of government.
They wrote in the Constitution that Congress is supposed to take the lead in trade policy.
It could not be more clear from the text. Article I, Section 8 of the Constitution states that “Congress shall have Power to regulate Commerce with foreign Nations,” as well as to impose “Taxes, Duties, Imposts, and Excises.”
This arrangement ensured that the nation’s trade policy reflected the will of the American people—not the whims of their president.
Because the people had more influence over how they were governed, trade policy occupied a more prominent place in public discourse during the early days of the Republic than it does today.
And of course, it occupied much more of Congress’s attention.
The first major piece of legislation passed by the First Congress was in fact a trade bill, the Tariff Act of 1789.
Most federal revenue during this period came from tariffs and import duties which helps us understand why the Founders gave Congress responsibility over trade.
They did not want to give the executive power to impose what were in effect massive, unilateral tax increases!
The system established by the Founders was messy and raucous in the best tradition of America.
It required effort and risk on the part of lawmakers—they had to battle-test their ideas during frequent debates, and then in the real world once their ideas became law.
Failure was always an option, as Congress learned when it passed bad laws such as the Smoot-Hawley Tariff Act of 1930.
But over time, many politicians became exasperated with the division of labor outlined in the Constitution for some of these same reasons.
It exposed them to electoral consequences and pressure from special interests. So they decided to shift the burden somewhere else.
Starting during the Great Depression, Congress began to offload its responsibility over trade policy to the executive—which was happy to accept.
Before long, the executive had accumulated immense power to alter the flow of trade in our country. That is more or less the situation today.
I believe it is time for Congress to shift the balance of power back in its direction, as the Constitution not only requires but guarantees the American people.
Congress should do this for selfless reasons, but it can also do it for self-interested reasons.
Congress is now the most reviled institution in American life. It has earned that reputation through inaction and cowardice, as it has unburdened itself of tough responsibilities over everything from tariffs to declarations of war.
In the process, Congress has left the people at the mercy of the president as well as a vast, unelected, and unforgiving administrative state.
If Congress is ever going to restore its standing in the eyes of the people, then it needs to stick up for them by wresting control back from the executive branch.
That is the mission of the Article I Project that I and a number of my colleagues started in the Senate last year.
And it is the reason I introduced the Global Trade Accountability Act, which would help Congress restore its authority over trade policy.
The bill would require congressional approval for any unilateral trade action undertaken by the executive branch.
Before raising any trade barriers, the president would have to submit a report to Congress outlining the proposed change, its expected costs and benefits, and its duration.
The Global Trade Accountability Act could have stopped President Trump’s steel and aluminum tariffs—had it been enacted in time.
But you do not need to be a free trader to support this legislation.
The Global Trade Accountability Act says nothing about what kind of trade policy we should pursue—but it says a great deal about who gets a seat at the table.
Congress has shirked its responsibilities for a long time. And I have witnessed the inertia of this body on countless occasions. That inertia is all the worse when the president is of the same party as Congress, which is the case now.
But I know that Congress can stand up for itself when it wants to, because it has done so in the past.
In 1980, in the waning days of his administration, President Carter imposed a dime-a-gallon import fee on gasoline. He justified this fee using the same Section 232 authority invoked by President Trump for his tariffs.
Like President Johnson before him, Carter had a spoken and an unspoken reason for supporting this tariff.
The spoken reason was to conserve energy—this tariff was part of Carter’s massively unpopular effort to get America to drive less and wear more sweaters.
The unspoken reason was revenue. Carter was effectively proposing a new tax on American families that would bring in roughly $12.6 billion per year for the federal government.
What followed was a full-on revolt from Congress, led not by leadership but by rank-and-file members whose constituents were calling by the thousands to register their opposition.
Liberals like Howard Metzenbaum and conservatives like Jesse Helms united to pass a bill that killed President Carter’s gas tariff.
And then they overrode his veto, by a vote of 335-34 in the House and 68-10 in the Senate. It was the first time since 1952 that Congress overrode a veto by a president of the same party.
Stories such as this give me hope that Congress can re-discover its constitutional role in trade policy—and indeed in many other areas, as well.
Politicians like myself were not elected to come here and avoid tough fights—we were elected to seek them out.
Those fights will be easier to win if we can think proactively about how to reclaim our power before the next tariff scare.
That means passing bills like the Global Trade Accountability Act and continuing valuable discussions like the ones that are going on today.
My thanks again to the Federalist Society for hosting this valuable event.
And thank you all for listening.