Congress Has a Duty to Intervene in Trump’s Trade War

(Editor's Note: This piece first appeared in The Bulwark on May 15, 2019.)

As the United States and China announce dueling tariffs and send the stock markets spiraling, millions of Americans have been impacted negatively by the conflict between the world’s two largest economies. And Congress is missing in action.

This week talks between Washington and Beijing broke down as President Trump decided to increase tariffs on targeted Chinese products by approximately 150 percent. The president also threatened to impose a 25 percent tariff on all products imported into the United States from China that are currently unaffected if negotiators do not reach an agreement soon. In retaliation, China announced that it was likewise increasing tariffs by 150 percent on many products imported from the United States. 

Despite the importance of the trade talks, it is hard for Americans to keep up with what is actually happening in them. Even nations not involved in the dispute have taken note of the confusion and have tried adapting to the Trump administration’s personal approach to making policy. Whatever the merits of the particular arguments advanced by Trump’s supporters and opponents, this is not how trade policy has traditionally been determined in the world’s oldest, and most successful, democracy.

Many observers blame Trump for the status quo. But his trade war would not be possible without Congress’s cooperation. This is because Article I, Section 8 of the Constitution gives Congress the power to regulate trade. And for the first 150 years after the Constitution’s ratification, Congress used that power to play the leading role in making trade policy. However, Congress reversed course in the 1930s and began to give its trade powers to the president. At the time, its members believed that doing so was needed to combat the Great Depression. Yet while the depression eventually ended, Congress continues to take a back seat to the president on trade policy to this day.

Consider Section 232, which is one of Trump’s favorite tricks for increasing tariffs unilaterally. Congress gave the president power to adjust tariff rates in consultation with the secretary of commerce in the Trade Expansion Act of 1962. While it intended that power to be used narrowly, for national security purposes only, Congress naively gave the president discretion over how to define what imports he thinks constitutes a national security threat in the first place. That is why Trump has been able to use this power to raise tariffs on steel, aluminum, automobiles, and auto parts.  

While Trump has relied primarily on a different statutory authority, Section 301 of the Trade Act of 1974, to wage a trade war on China, reforming his power under Section 232 is nevertheless a good first step that Congress can take toward reclaiming its rightful role in the policymaking process. And there is bipartisan support for doing so. In the Senate, Rob Portman, R-Ohio, and Pat Toomey, R-Penn., have introduced proposals to reform Section 232. Significantly, Chuck Grassley, R-Iowa, the chairman of the Finance Committee, which is responsible for considering trade policy in the Senate, is supportive of their efforts. In March, Grassley announced that he would unveil a bipartisan reform proposal in “the coming weeks.” 

In the seven weeks since, Grassley has criticized Trump’s trade policy. But he has not unveiled legislation as promised. He has acknowledged that “the Constitution assigns Congress the task of regulating foreign commerce.” But he has not taken any noticeable steps inside the Senate that would help make that a reality. Instead, Grassley and his Republican colleagues continue to defer to Trump in their actions despite the tenor of their rhetoric.

Grassley’s inaction to date is especially striking given his stated policy positions and the modest nature of the Section 232 reforms currently under consideration. If signed into law, the reform measures would change only the process by which Congress would review presidential actions under Section 232. They would not eliminate that power altogether. Portman’s Trade Security Act would establish a unique process in the Senate to consider resolutions of disapproval of administrative actions taken under Section 232. In contrast, Toomey’s Bicameral Congressional Trade Authority Act would require Congress to approve all executive actions taken under Section 232 before they become effective.

What makes Grassley’s inaction even more puzzling is the fact that both proposals enjoy bipartisan support. Portman’s bill currently has nine co-sponsors (six Republicans and three Democrats). And 13 senators have co-sponsored the Toomey bill (seven Republicans and six Democrats). A number of these supporters also sit on Grassley’s Finance Committee (two who support the Portman proposal and five who support the Toomey proposal).

The hubbub caused by the recent breakdown in trade negotiations between Washington and Beijing could prompt the Senate (and the House) to consider legislation to reassert its constitutional power over trade policy. However, senators’ inaction in the face of their increasingly strident rhetoric and the clear bipartisan support for reforming Section 232 suggests that whatever action the Senate eventually takes will be more likely to resemble the approach outlined in Portman’s bill more than the one in Toomey’s. This is because the unique process established by the Portman bill is not very special at all. It merely creates the appearance of doing something while actually doing nothing. If signed into law, Portman’s legislation would not shift the balance of power on trade policy between the president and Congress in any meaningful way. This is because the mechanism specified in the proposal by which Congress will ostensibly flex its institutional muscles- resolutions of disapproval- can be filibustered in the Senate and vetoed by the president. For that reason, the Portman legislation is likely to be attractive to senators whose policy positions are not aligned with their rhetoric or who otherwise do not want to break publicly with the president.

While Congress’s dysfunction has been apparent for some time, the unwillingness of its members to play a meaningful role in the ongoing trade war between the United States and China highlights well its underlying problem. In short, Congress does not work when its members do not act.

Trump likes to say that tariffs will make America strong again. In doing so, he misses that which has made America strong all along- how Americans make collective decisions. The Constitution is America’s greatest asset. It matters far more than the rate at which the administration sets tariffs on things like batteries and spinach. And that hallowed document does not make the president policymaker-in-chief.

Of course, members of Congress may decide to embrace the president’s current trade policy toward China. But if they do, the American people will be able to hold their elected representatives accountable for those decisions. It does not matter what those decisions are. All that really matters is that they are made in Congress.