Politics & Policy

Will Congress Reassert Its Constitutional Authority to Impose Tariffs?

House Speaker Paul Ryan (Aaron P. Bernstein)
It should, but lawmakers are more likely to wring their hands and whine.

If Donald Trump’s public statements can be trusted, then the world is quickly approaching a trade war. Last Thursday, the president announced his intention to impose a 25 percent tariff on imported steel and a 10 percent tariff on imported aluminum, later adding that he’d make no exceptions for the exports of even our closest allies. This means that Canada will be hit with the same penalty as, say, China (though the White House has since floated using the tariffs as a bargaining chip in the renegotiation of the North American Free Trade Agreement). In response, some of those allies threatened to impose retaliatory tariffs on American goods: of course metal, but also, said Jean-Claude Juncker of the EU, Levi’s jeans, bourbon, and Harley-Davidson motorcycles. Fine, Trump said on Twitter, you can tax our bikes; we’ll simply tax your cars.

Add to the mix Trump’s insight that trade wars can be “good and easy to win,” and the tit-for-tat, beggar-thy-neighbor model is riding high. So far, it is just a rhetorical war. Most observers agree that there is some distance between what Trump believes, what he says, and what he ultimately does. But the dueling announcements are a plausible dry run for the real thing. What starts with steel moves to motorcycles; Kentucky bourbon finds itself priced out of Europe while in America, steel producers raise their prices, companies that use steel lay off their employees, and consumers pay double for a can of beer.

While many of Trump’s policy statements wander in search of a consistent position, his position on protectionism is one of the few he has held steadily over the years. With free-trader Gary Cohn resigning from the White House, Trump seems likely to seek counsel from protectionists such as Wilbur Ross and Peter Navarro, which makes protectionist action all the more likely. If Trump does what he says, retaliations from around the world will beget more retaliation until an outside force stops the self-destructive cycle.

Could that force be Congress? More properly put, shouldn’t it be? Article I, Section 8 of the Constitution gives Congress the power “to lay and collect taxes, duties, imposts, and excises.” As Jay Cost chronicles on the homepage, the legislative branch first used that power as little more than a tool to dispense favors to favored regions of the country before ceding it to the executive over the years. That abdication persists, he notes, “even in instances (such as this aluminum-and-steel case) where there is no compelling or immediate foreign-policy mandate.”

Trump’s proposed tariff is dubiously justified on national-security grounds for the purposes of section 232 of the Trade Expansion Act and the stipulations of the World Trade Organization. But it is a naked protectionist grab, a cynical ploy for support from steel magnates and their union employees. It’s a move that Congress could stop him from making.

Plenty of high-ranking congressional Republicans oppose the measure. Protectionism is one of Trump’s issues that haven’t exerted much pull on the rest of the party (though it has prompted a rethink of trade policy in certain intellectual circles). Statements from concerned representatives and senators abound: Paul Ryan, whose home state builds Harleys, issued a stern one Monday, while various committee chairmen have insisted on the need for “targeted” action against offenders — a clear shot at Trump’s “Make Metal More Expensive” policy, which targets Mexico, Canada, Germany, and China alike. Kevin Brady and Orrin Hatch, who lead the committees with jurisdiction over trade in the House and Senate, are avid free-traders. Behind the scenes, reports Politico, congressional Republicans are both “frantically lobbying Trump to reconsider” his move and “even considering legislative action to try to stop him if he refuses.”

Congress could reassert its constitutional authority to impose tariffs, say Colin Grabow, a trade-policy scholar at the Cato Institute, and Clark Packard, a trade-policy scholar at the R Street Institute, by passing a bill introduced by senator Mike Lee (R., Utah). Lee’s bill, the Global Trade Accountability Act, would require congressional approval in the form of an up-or-down vote on all significant tariffs. That bill is “the intellectual North Star of a lot of trade wonks,” Packard tells National Review.

Will congressional cowardice determine our course? Or will the GOP stick to the free-trade position that it has supported for decades?

The question, however, is whether Congress will follow Polaris’s direction if the president has charted another path. Will congressional cowardice determine our course? Or will the GOP stick to the free-trade position that it has supported for decades?

This Congress has an instinct to run for the tall grass when the voting gets tough — witness the lack of action on health care in 2017, or the party’s nonexistent agenda for 2018. Such inaction has political consequences: In a country where the president is legislator in chief, and with that president not afraid to sic his voters on uncooperative congressmen of his own party, opposing a policy the president supports seems politically suicidal (or at least inconvenient). Against that backdrop it is difficult to imagine Republicans standing openly against Trump, let alone working with Democrats to secure a veto-proof majority for a bill that limits presidential power.

There are other options besides an open legislative revolt. Packard suggests a more limited version of the Lee bill that, rather than rewriting all trade-remedies laws, would require congressional approval only for tariffs that are justified on national-security grounds under section 232 of the Trade Expansion Act. Even if Trump imposes the tariff, Congress could pass a continuing resolution that declined to fund the collection of such duties.

That would require a Congress committed to its principles, ready to play its constitutional role, and willing to take meaningful steps to curtail presidential power. Which is to say it’s a fanciful idea. As Yuval Levin has written, the current “weakness of Congress is a result of dereliction and of a growing confusion about the role of the institution.” Congress may yet pursue legislative solutions to rein in Trump, but it seems likelier that they’ll fulminate, wring their hands, and try to convince the president to recant his earlier statements. With this president, that’s never outside the realm of possibility. Then again, neither is a trade war.

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