Congress hates Trump's tariffs, yet sits by idly instead of acting

(Editor's Note: This piece first appeared in the Washington Examiner on May 20, 2019.)

There are numerous ways for Congress to check the president. In recent years, its members have frequently opted to pass so-called resolutions of disapproval to reverse administrative actions after they have been taken. An example of this is the process that Congress established in the Budget Control Act of 2011 (Public Law 112-25) to reverse prospective decisions by the president to raise the debt ceiling.

But resolutions of disapproval only make it look like Congress is checking the president. This is because Congress must first give the president the power to take action before it can pass a disapproval resolution to reverse it.

The debate over trade policy in the nation’s capital highlights the superficial nature of disapproval mechanisms. One proposal ostensibly aimed at limiting President Trump's power to adjust tariffs underscores how legislators use resolutions of disapproval to make it look like they are taking meaningful action while doing the opposite. While support among Republicans in Congress for Trump’s aggressive stance in the trade war with China remains strong, frustration is mounting there due to its impact on Americans.

In the Senate especially, Republicans are increasingly willing to criticize the president’s decision to raise tariffs on goods imported from China. Even so, senators remain unwilling to limit his ability to do so in the first place. Senators may blame the president, but he cannot adjust tariffs under the Constitution without their prior permission.

If the Senate ever decides to take action, it will likely be only a modest step like limiting the president’s ability to adjust tariffs under Section 232 of the Trade Expansion Act of 1962. Technically limited to imports that pose a threat to national security, the statute’s ambiguous definition of what constitutes such a threat empowers the president to raise tariffs for virtually any reason. Trump used this sweeping power last year to raise tariffs on several products that do not appear to pose actual national security threats to the United States.

In response, Sens. Rob Portman, R-Ohio, and Pat Toomey, R-Pa., introduced competing proposals to check the president’s expansive power to adjust tariff rates under Section 232. Portman’s Trade Security Act does so by establishing a special process in Congress to disapprove administrative actions after they have become effective. In contrast, Toomey's Bicameral Congressional Trade Authority Act aims to check the president by requiring that Congress approve all administrative actions taken under Section 232 before they take effect.

At first glance, the two bills appear almost identical. They both aim to check the president. Yet on closer inspection, the effect that the proposals have on Congress’ ability to do so is drastically different. It turns out that the special process established by the Trade Security Act is not very special. The president remains structurally advantaged under it because of the legislation’s reliance on a disapproval process to check him. Trump’s ability to veto a joint resolution of disapproval effectively requires a two-thirds majority of the House and Senate to block the president in this area. The president’s supporters in the Senate could also filibuster a joint resolution, thereby making its passage through the chamber less likely. For these reasons, the Trade Security Act appears intended, not to check the president, but rather to help senators look like they are checking the president.

This flaw is not unique to the Trade Security Act. Disapproval mechanisms, in general, are not an effective way to check the president because they profess to give Congress a power that it already has. Portman argues that his bill expands the current Section 232 disapproval process to cover all administrative actions taken under Section 232, not merely those already authorized in the original statute. Yet Article I of the Constitution empowers Congress to legislate in all areas related to tariffs, regardless of what the Trade Security Act covers.

Portman maintains that his disapproval process strikes the right balance between asserting congressional prerogatives in the policymaking process and protecting national security. Proponents of the Trade Security Act argue that an approval process, such as that included in Toomey’s Bicameral Congressional Trade Authority Act, endangers national security. According to this view, requiring Congress to approve trade policy before it can take effect, as directed by the Constitution, is too risky. It also assumes that Congress will not support a president's requested tariff adjustment when it is confronted with a clear threat to the nation's security. And it ignores the Article II powers that presidents possess to protect the nation's security as commander-in-chief of the armed services. Limiting Congress's Article I power to make trade policy is therefore unnecessary for defending the homeland.

The procedural approach to checking the president featured in Trade Security Act suggests that its real aim is to make it look like Congress is changing the status quo when, in reality, it is reinforcing it. As with the process established to disapprove presidential decisions to increase the debt ceiling, expanding the disapproval process in Section 232 of the Trade Expansion Act will not limit presidential power in this area.

To check the president, Congress must instead require all presidential decisions to adjust tariffs under Section 232 to be approved by Congress before they can take effect. Of course, an approval mechanism does not guarantee that Congress will block the president's proposed action. Its members may decide to back the president. And then again, they may not. Regardless, they must choose. That is what the Constitution requires.