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Barack Obama’s presidency was unprecedented in many ways, but the most distinctive – and damaging – feature of his tenure in the White House was his casual disregard for the constitutional limits on the office of the president. By the end of two terms in office, Former-President Obama had grown perfectly comfortable boasting about violating the boundaries on the Executive Branch in order to enact policies that had been rejected by Congress.

From education (forcing Common Core on states through No Child Left Behind waivers), to immigration (granting de facto amnesty to illegal immigrants through DACA and DAPA), our 44th president took unilateral lawmaking to never seen before heights.

But as damaging as all of these executive actions were, 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.

As a new president is sworn in today, many Democrats are coming to regret their acquiescence to the centralization of policymaking authority in the Executive Branch, particularly when it comes to trade policy, an area where the president has been granted immense discretion to unilaterally raise trade barriers.

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 percent.

While Section 122 confines the president’s authority to act within 150 days, Section 338(a) of the Tariff Act of 1930 contains no such time restriction. Under Sec. 338(a),the president “when he finds that the public interest will be served shall by proclamation specify and declare new or additional duties... upon articles wholly or in part or product of...any foreign country whenever he shall find as fact such country… discriminates in fact against the commerce of the United States.”

These are just two examples of the vast discretionary authority to raise trade barriers that the Executive Branch will have at its disposal. While some Americans may wish to see higher trade barriers in the United States, there’s reason to believe that such a move would wreak havoc on many small and midsize manufacturers that rely on imports and globally connected supply chains.

That is why Congress must reassert its Art. I Sec. 8 power “to regulate commerce with foreign nations” by passing the Global Trade Accountability Act.

This bill would create a new Sec. 155 in the Trade Act of 1974 that would require congressional approval for any “unilateral trade action” undertaken by the Executive Branch. Before raising any trade barriers, the president would be required to submit a report to Congress outlining the proposed unilateral action, the costs and benefits of the action, and the effective period of the action.

Both chambers of Congress would then have to pass a joint resolution approving the proposed action before it could go into force. The law does allow for a “national emergency” exception, but even that declaration would apply for only 90 days. After that, the aforementioned joint resolution would be required for the policy to continue.
There are still many other areas of federal law in desperate need of congressional accountability. The Regulations from the Executive in Need of Scrutiny (REINS) Act, would set up a similar process for all new federal regulations that impose $100 million or more in compliance costs on the U.S. economy. But this is one step Congress can take now to start making the Executive Branch accountable again.

WASHINGTON  - Sens. Mike Lee (R-UT), Steve Daines (R-MT), Jerry Moran (R-KS), Ben Sasse (R-NE), Ted Cruz (R-TX), John Cornyn (R-TX), and Rand Paul (R-KY) introduced a resolution Friday expressing the sense of the Senate that the Mexico City policy, or a modernized version thereof, should be permanently established in statute. The resolution also encourages President Trump to immediately take action to reapply the policy.

“There is long-standing statute limiting US foreign assistance from being spent on the promotion or provision of abortion services. Through executive memorandum, Mexico City Policy was created almost 33 years ago. During more than half of the time since the policy’s creation, it has been enforced as standing US foreign aid policy – for a total of 17 years,” Sen. Lee said. “The resolution is a Congressional support document, rooted in legislative and executive history, representing the will of the majority of Americans to see more restrictions on funding for abortion – restrictions President Trump can immediately impose – applied to our foreign aid expenditures of taxpayer dollars.”  

The resolution encourages a new executive memorandum from President Trump today or in the coming days, reapplying the policy and its family planning foreign aid restrictions as it was during the Bush administration, while leaving the opportunity for the new administration to review the policy and apply an “improved version thereof.” This language lays the predicate for future legislative action to codify whatever policy the executive applies.

In 1984, President Ronald Reagan established the ‘‘Mexico City Policy,’’ which prohibits foreign aid for family planning purposes from being given to foreign nongovernmental organizations that provide or promote abortion as an option for family planning, regardless of the source of funding. When applied, this prohibits any foreign private or nonprofit entity from receiving US family planning foreign assistance that provides or promotes abortion.

The resolution states, “That it is the sense of the Senate that— (1) the President should immediately reapply and consider improving the Mexico City Policy; and (2) Congress should expeditiously consider statutory changes that permanently codify the Mexico City Policy or an improved version thereof.”

The resolution text can be found here:

Senators Ask President Trump to Reapply Modernized Mexico City Policy by Senator Mike Lee on Scribd