Article I, Section 8
The Indo-Pacific Economic Framework’s (IPEF) failure to launch its first pillar two weeks ago, in part due to congressional protest, had me thinking, not for the first time, about the role of Congress in trade policy. I have some modest experience here—17 years on Capitol Hill working on trade for members of the Senate Finance Committee, and more than seven years as under secretary of commerce in the Clinton administration, where, among other things, I testified before Congress 53 times. On the Hill, one of the first things you learn if you are working on trade policy is Article I, Section 8 of the Constitution, which enumerates the powers of Congress. The relevant portion says: “The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises . . . To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.”
Most of the debate on this clause revolves around Congress’ assertion of its authority and its complaints that the administration of the moment is not respecting it. The complaints are chronic and bipartisan, both with respect to who is making them and with respect to the administration that is their target. All the noise allows us to forget another part of the debate. There is no question that Congress has the authority, but it is a gift given by the constitution, not something earned. Less often discussed is whether Congress deserves the authority and has been a good steward of it. On that, my answer, sadly, is “no.”
I say that with regret. Some of us at CSIS call this the geezer effect—a bunch of old people like me sitting around saying, “Things were much better when we were in charge.” No small amount of smugness and self-pity here, but in the case of trade policy, there is some truth as well. The biggest difference between then and now is the decline of expertise. Trade policy is not rocket science (except for export controls, where it can literally be rocket science), but there are lots of weeds—multiple statutes, some more than a century old, a ton of litigation and judicial opinions, and plenty of politics and economics. So, there is much for members of Congress to learn if they want to be proficient. In my day, admittedly antediluvian times, they did. I was fortunate to work for senators who realized, first, that the key to earning their colleagues’ respect was to become an expert in something, and second, that being expert meant learning the material for oneself and not simply relying on staff. When I was at the Commerce Department, I was surprised at one point when Senator Mike Enzi (R-WY), who had just taken over the chairmanship of the subcommittee with jurisdiction over export controls, asked to come visit my bureau to learn about what we did. He came and spent some three hours talking to career employees about how they did their jobs and the challenges they faced. That was unusual then but I suspect unheard of now.
Congress has always had both “work horses” and “show horses,” but in recent years the ratio has changed in favor of the latter. Success is more often measured in terms of media attention rather than bills enacted. The result is more proposals designed to capture a headline or quotes that go viral rather than the hard work of crafting detailed proposals intended to solve real problems. This particularly true right now in the case of China, where members of Congress seem to be competing with each other to see who can produce the most extreme anti-China proposal, few if any of which will make it across the legislative finish line, but all of which make good tweets.
In the IPEF case, neither branch of government distinguished itself. Senator Sherrod Brown (D-OH), who is one of the few who has put time and effort into studying trade, brought pillar one to a halt by complaining that its worker and environment provisions were not going to be strong enough. My column last week discussed that and the dangers of making the perfect the enemy of the good. He has a tough reelection fight and was trying to show his constituents he was fighting for them, even if the result was to torpedo a modest but positive step forward on issues he cares about. The administration’s response was to pander to him by pulling the plug on the whole pillar, including parts that had been agreed to. The administration’s recent policy switch on digital trade has similar earmarks: opposition from some members of Congress to longstanding U.S. positions without much thought about the legal and economic implications of their objections, followed by the administration reversing itself in order to avoid a political fight.
I started this column thinking it would be short, but it turns out there is a lot more that could be said on this subject, including the administration’s role in making things worse rather than better. However, since I’m out of space, I’ll just close by noting that “have” and “deserve” are two different things. While there is no question Congress has the authority to regulate trade, it would be nice to see its members doing more to deserve it.
William Reinsch holds the Scholl Chair in International Business at the Center for Strategic and International Studies in Washington, D.C.