As reported in our post of January 25, 2019, members of the 116th session of Congress are seeking ways to address President Donald Trump’s authority to unilaterally impose tariffs under various statutes. This trend continued on January 30, 2019, with the bipartisan introduction of the Bicameral Congressional Trade Authority Act. Introduced by Sens. Mark Warner (D-VA) and Pat Toomey (R-PA), this bill would restore to Congress its Article I constitutional authority over foreign trade and commerce, specifically focusing on tariffs implemented under the claim of “national security.” The senators stated that recent Trump administration Section 232 actions have been economically disruptive and have damaged U.S. relationships with its allies, including Mexico, Canada, Japan, the EU and India.
The legislation would require the president to secure approval from Congress before taking action under Section 232 of the Trade Expansion Act of 1962 (19 USC § 1862). Congress would have 60 days to review a president’s proposal to impose tariffs, which would have expedited consideration and receive an up-or-down vote in the House and Senate. The bill also seeks to repeal the Section 232 actions imposed within the last four years, including the tariffs on foreign steel and aluminum, unless Congress votes to keep them in place. The bill would transfer investigative authority from the Secretary of Commerce to the Secretary of Defense, with Commerce still determining the appropriate remedy if the Department of Defense makes an affirmative finding. The bill would define the term “national security” and restrict Section 232 investigations to goods with applications involving military equipment, energy resources and/or critical infrastructure. Such goods would also have to constitute a “substantial cause” of the threat to impair U.S. national security.
Additional co-sponsors of the bill are Sens. Ben Sasse (R-NE), Maggie Hassan (D-NH), Lamar Alexander (R-TN), Ron Johnson (R-WI), Angus King (I-ME), James Lankford (R-OK), Jerry Moran (R-KS), Brian Schatz (D-HI) and Jeanne Shaheen (D-NH). The bill has also been introduced in the House of Representatives by Reps. Mike Gallagher (R-WI) and Ron Kind (D-WI). In addition, the legislation has the support of numerous trade associations, including the U.S. Chamber of Commerce and the National Foreign Trade Council, who argued in letters to Congress that “a broad array of U.S. manufacturers, farmers, food producers, retailers and technology companies … have been badly damaged by the ongoing imposition of tariffs and quotas on imported steel and aluminum products” (NFTC) and that “the executive’s [Trump administration’s] damaging application of tariffs and tariff threats as leverage in trade negotiations is unlawful given the statute’s narrow focus on national security.”