Law & the Courts

The Legislative Branch Joins the Trade War

Shipping containers at the Port Newark Container Terminal in Newark, N.J., in 2009 (Mike Segar/Reuters)
A few legislators want to retake trade authority delegated to the executive branch.

“You’re the top! You’re an Arrow collar.

You’re the top! You’re a Coolidge dollar.

You’re the nimble tread of the feet of Fred Astaire,

You’re Mussolini,

You’re Mrs. Sweeny,

You’re Camembert.”

— A version of You’re the Top, Cole Porter (1934)

In the early 1930s, when Benito Mussolini was one of the world’s most admired political figures, Franklin Roosevelt proclaimed in his first inaugural address that there might have to be a “temporary departure” from “the normal balance of executive and legislative authority” so that he could wield in domestic policy “broad executive power” as great as would be given to him were America “invaded by a foreign foe.”  Such was the allure of unfettered executive power, the Studebaker automobile company of South Bend, Indiana, marketed a model called the Dictator.

The Constitution vests in Congress the power “to regulate commerce with foreign nations.” For decades, however, Congress has granted vast trade discretion to presidents, for reasons of sloth (setting policy is work), prudence (taking responsibility is risky) and ideology (executive discretion is modern; the separation of powers is an anachronistic impediment to energetic government). Today, however, there is growing legislative resistance to some broad powers that presidents possess because legislators improvidently — and, arguably, unconstitutionally — delegated them to presidents, particularly regarding international trade. Those powers include the presidential imposition of taxes, which tariffs are, paid by Americans.

Senators Rob Portman (R., Ohio), Doug Jones (D., Ala.), and Joni Ernst (R., Iowa), have introduced legislation that would, they say — sacrificing candor to political delicacy — “better align” Section 232 of the Trade Expansion Act of 1962 with its “original intent,” which was to enable presidential responses “to genuine threats to national security.” The senators would require the Defense Department to justify the “national security” basis for tariffs. Imagine the generals and admirals today trying to explain the threat posed by imported automobiles and auto parts, or by steel and aluminum imported from nations (six of the top 10 sources of imported steel) that have mutual-defense agreements with America.

In 1903, Winston Churchill, then 28, warned (this is from Andrew Roberts’ magnificent new biography) that by embracing protectionism the Conservative Party would “cause the lobbies to be crowded with the touts of protected industries.” The Trump administration’s protectionism has turned the Commerce Department — it is now an impediment to the activity that its name denotes — into a bazaar for such touts.

Senator Pat Toomey (R., Pa.), raises an issue that implicates constitutional issues that are even more fundamental than those addressed by the Portman-Jones-Ernst measure. President Trump might try to force congressional ratification of his United States-Mexico-Canada (USMCA) replacement of the North American Free Trade Agreement by terminating NAFTA. This would confront Congress with an unpalatable choice: embrace the USMCA, or live without an agreement and with economic chaos.

Toomey correctly argues that Congress cannot delegate the power to repeal statutes. Statutes implementing congressional-executive trade agreements explicitly authorize presidents to take certain actions, which make implausible implicit delegation of the power to terminate such agreements.

The president might argue that he can unilaterally terminate treaties (although no president did so until 1927), and that congressional-executive agreements decisively resemble treaties because presidential initiative is paramount. However, the president’s power in foreign relations is plenary except regarding commerce, where the president has no independent power and where the Constitution’s Commerce Clause establishes Congress’ primacy. Presidents can make trade treaties that must be consented to by two-thirds of the Senate. But congressional-executive agreements like NAFTA are authorized by statutes passed by both houses of Congress, and must be terminated by statutes.

In 1952, during the Korean War, the Supreme Court rejected President Truman’s claim that his inherent and implied powers as commander in chief legitimated his seizure of steel mills to prevent disruption by labor disputes. In a concurring opinion, Justice Robert Jackson said that presidential powers “fluctuate depending on their disjunction or conjunction with those of Congress,” and presidential power is at its “lowest ebb” when the president acts against the “expressed or implied will of Congress.” That will is expressed, not merely implied, in congressional-executive agreements like NAFTA.

Although the Studebaker company expired in 1966, a Dictator model is displayed in South Bend’s Studebaker Museum. Although today’s swollen presidency will not soon be a museum piece, it is encouraging that a few legislators want to claw back some of their branch’s powers, thereby reducing the executive to a dimension more compatible with our constitutional architecture.

© 2018 Washington Post Writers Group

Most Popular

Politics & Policy

The Sinking Collusion Ship

The entire Trump-Russia collusion narrative was always implausible. One, the Washington swamp of fixers such as Paul Manafort and John and Tony Podesta was mostly bipartisan and predated Trump. Two, the Trump administration’s Russia policies were far tougher on Vladimir Putin than were those of Barack ... Read More
Politics & Policy

The Problem with Certainty

EDITOR’S NOTE: The following is Jonah Goldberg’s weekly “news”letter, the G-File. Subscribe here to get the G-File delivered to your inbox on Fridays. Dear Reader (Including those of you having this read to you while you white-knuckle the steering wheel trying to get to wherever you’re going for the ... Read More
Politics & Policy

The Worst Cover-Up of All Time

President Donald Trump may be guilty of many things, but a cover-up in the Mueller probe isn’t one of them. House Speaker Nancy Pelosi, attempting to appease forces in the Democratic party eager for impeachment, is accusing him of one, with all the familiar Watergate connotations. The charge is strange, ... Read More

Theresa May: A Political Obituary

On Friday, Theresa May, perhaps the worst Conservative prime minister in recent history, announced her resignation outside of number 10 Downing Street. She will step down effective June 7. “I have done my best,” she insisted. “I have done everything I can. . . . I believe it was right to persevere even ... Read More
PC Culture

TV Before PC

Affixing one’s glance to the rear-view mirror is usually as ill-advised as staring at one’s own reflection. Still, what a delight it was on Wednesday to see a fresh rendition of “Those Were the Days,” from All in the Family, a show I haven’t watched for nearly 40 years. This time it was Woody Harrelson ... Read More
Politics & Policy

The Democrats’ Other Class War

There is a class war going on inside the Democratic party. Consider these two cris de couer: Writing in the New York Times under the headline “America’s Cities Are Unlivable — Blame Wealthy Liberals,” Farhad Manjoo argues that rich progressives have, through their political domination of cities such as ... Read More

The Deepfake of Nancy Pelosi

You’ve almost made it to a three-day weekend! Making the click-through worthwhile: A quick note about how National Review needs your help, concerns about “deepfakes” of Nancy Pelosi, one of the most cringe-inducing radio interviews of all time, some news about where to find me and the book in the near ... Read More

America’s Best Defense Against Socialism

The United States of America has flummoxed socialists since the nineteenth century. Marx himself couldn’t quite understand why the most advanced economy in the world stubbornly refused to transition to socialism. Marxist theory predicts the immiseration of the proletariat and subsequent revolution from below. ... Read More