Looking to retrieve some lost power
Scott Baio said he is furious with Nordstrom for dropping Ivanka Trump’s clothing line. But mostly Baio’s mad at Nordstrom for cutting his hours working in the stock room.” Conan O’Brien “Conan”
I n theory, if only occasionally in fact, Congress plays a role when a president wants to initiate military hostilities. Republican Sen. Mike Lee of Utah thinks Congress should also have a say when a president wants to initiate a trade war.
Lee is a constitutional, meaning an actual, conservative who is eager for Congress to retrieve some of the power it has improvidently delegated to presidents. As a step toward correcting Congress’ self-marginalization, he proposes the Global Trade Accountability Act. It is analogous to the Regulations from the Executive in Need of Scrutiny (REINS) Act, which has several times passed the House only to expire in Democratic-controlled Senates.
REINS would require Congress to approve any major (at least $100 million cost) regulation. The theory is that if legislators’ fingerprints are going to be on such regulations, they will receive more exacting cost-benefit analyses. REINS attempts to somewhat expand Congress’ governing role as today’s sprawling administrative state churns on.
Lee’s proposed act pertaining to tariffs is part of the Article I Project, a bicameral collaboration among legislators interested in resuscitating Congress’ powers. It would “provide for congressional review of the imposition of duties and other trade measures by the executive branch.” No such measures could take effect until both houses of Congress pass a joint resolution of approval.
Lee’s excellent proposal would, like REINS, leave Congress in a reactive posture, but at least able to react. Speaker Paul Ryan declares that “we’re” —meaning Congress —“not going to be raising tariffs,” but Congress has long since invested presidents with vast discretion regarding tariffs.
Tariffs are taxes imposed at the border. The Constitution says “Congress shall have power to lay and collect taxes, duties, imposts and excises” and “to regulate commerce with foreign nations.” Because the country came into existence insisting on “no taxation without representation,” the initiative in raising revenue was entrusted to the political institution composed of directly elected representatives proportionate to population: The Constitution’s Origination Clause says, “All bills for raising revenue shall originate in the House.”
Although all tariffs raise revenues, not all are primarily “for” that purpose. Some are intended to protect from competition some industries that the government decides should be favored. So, by repeatedly over a century, beginning with the 1917 Trading with the Enemy Act (TWEA), delegating to presidents the power to impose tariffs, Congress has empowered him to raise taxes. Lee’s proposal would require congressional complicity in this core government function.
Although the TWEA’s opening language says it pertains “in time of war,” the current president could use it with impunity to legitimize his imposition of tariffs, citing ongoing U.S. operations in Iraq and Afghanistan. The International Emergency Economic Powers Act of 1977, like the TWEA, and six other statutes give presidents vast power to regulate international commerce during an “unusual and extraordinary threat,” which the current president thinks is the nation’s current condition. And courts defer to presidents about emergencies.
Congress last passed a declaration of war many wars ago, on June 5, 1942, regarding Hungary, Romania and Bulgaria. Since then, Congress has explicitly authorized certain uses of military force, but its ability to inhibit presidential discretion regarding war-making has atrophied. If Congress passes Lee’s measure, and Donald Trump signs it, it will limit presidential discretion regarding trade wars and will crimp the modern presidency’s imperial swagger.