2 July 2019
Congress Seeks to Assert Constitutional Trade Authority through Various Legislative Vehicles
Rep. Suzan DelBene (Democrat-Washington), a member of the House Ways and Means Trade Subcommittee, introduced legislation on 27 June to prevent the use of the International Emergency Economic Powers Act (IEEPA) to impose tariffs on imports. President Trump had cited IEEPA in threatening tariffs starting at five percent on all imports from Mexico and, while the imposition of such tariffs was ultimately averted, congressional and legal experts remain concerned about a possible precedent in the use of that statute as a tariff-setting mechanism.
DelBene said in a statement that IEEPA was established to allow the president to impose sanctions on foreign nations in the case of a national or international emergency. She added, however, that tariffs “are not the appropriate tool to deal with the situation on the border, and IEEPA was never intended to be a mechanism for slapping tariffs on a foreign country, especially our allies.” According to the Washington lawmaker, Congress has a responsibility “to ensure the executive is using its powers in an appropriate manner and this legislation would prevent President Trump and future presidents from abusing IEEPA.” The legislation proposed by DelBene is fairly straightforward: it would simply insert a provision into IEEPA asserting that the authority granted to the president by the statute does not include the authority to impose duties on the importation of goods.
Rep. Stephanie Murphy (Democrat-Florida), who is also on the Ways and Means Trade Subcommittee, introduced a more complex bill on 25 June to limit presidential authority over tariffs. The so-called “Reclaiming Congressional Trade Authority Act” is the House companion bill to legislation introduced in the Senate on 19 March by Democratic Senators Tim Kaine (Virginia) and Tom Carper (Delaware). The legislation would require congressional approval within 120 days for any tariffs imposed for national security reasons, such as the Section 232 tariffs imposed on imports of steel and aluminium. Unlike the Portman and Toomey bills on Section 232 that Senate Finance Committee Chairman Chuck Grassley (Republican-Iowa) is considering for committee mark-up, the Reclaiming Congressional Trade Authority Act would apply to Section 232 tariffs as well as to the unilateral implementation of tariffs under IEEPA and the Trading with the Enemy Act.
The Reclaiming Congressional Trade Authority Act would also increase Congress' role in Section 301 tariffs in effect on U.S. imports from mainland China. Specifically, it would require the U.S. Trade Representative to consult with the relevant congressional committees and to provide Congress with tariff justifications, including by requiring the U.S. International Trade Commission to provide Congress with analyses of tariffs. Moreover, the bill would provide a mechanism for Congress to block Section 301 tariffs through a joint resolution of disapproval, subject to presidential veto and congressional override.