The Washington Post Sunday

Congress tries to claw back some power

- GEORGE F. WILL georgewill@washpost.com

“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 D. 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, Ind., 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.

Sens. 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 the United States.

In 1903, Winston Churchill, then 28, warned (this is from Andrew Roberts’s 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.

Sen. Patrick J. Toomey (R-Pa.) raises an issue that implicates constituti­onal issues that are even more fundamenta­l than those addressed by the Portman-JonesErnst 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 congressio­nalexecuti­ve 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’s primacy. Presidents can make trade treaties that must be consented to by two-thirds of the Senate. But congressio­nal-executive agreements such as 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 Harry S. 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 H. 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 “express or implied will of Congress.” That will is expressed, not merely implied, in congressio­nal-executive agreements such as 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.

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