Finding Congress

This week, I discuss the role of Congress in trade policy, something particularly timely in light of the litigation pending in the Supreme Court, where the fundamental issue is congressional vs. executive authorities and the extent to which Congress can delegate its constitutional powers.

I go into this with some trepidation because every time I talk or write about the legislative branch, I am tempted to descend into a popular geezer rant—things were much better back in the day when we ran the show. Having spent 20 years on congressional staff in the 1970s–1990s, I can speak with some authority on how things used to work, and it’s tempting just to say now is worse than then, but the topic deserves more depth than that, even if I end up in the same place.

Members of Congress have been remarkably quiet in public about Trump’s trade policy, even if they privately have reservations about it. Imprinted in the mind of every trade staffer on Capitol Hill is Article I, Section 8, of the Constitution, which gives Congress the authority to regulate foreign commerce. It is also clear that the power to tax also resides with Congress. Since everybody knows that, why aren’t more people talking about it?

I believe there are two reasons. First, many members, particularly Republicans, are intimidated by the president. Tariffs are a signature part of his economic policy, and he is quick to attack anybody who suggests they might be a mistake. His threats to find primary election opponents for them are real, as is his capacity and willingness to make life miserable for those who oppose him. So, even those who think his policy is a mistake are reluctant to speak out.

Second, and more importantly, nobody knows quite what to say. Free market conservatives are no doubt appalled, but they have to face the fact that so far, the tariffs have not had the dire results they predicted back in March. There are reasons for that which I have discussed previously—stockpiling, delayed implementation, lower than threatened tariffs, a growing number of exemptions—but the bottom line is that total disaster has not yet struck. As Chicken Little feared, the sky may be falling, but right now it’s still up there with some clouds slowly getting larger. The doomers may ultimately be proved right, but right now that is still a prediction, not reality. In addition, members are salivating over the tariff revenue. Having blown an even bigger hole in the budget deficit via last summer’s tax legislation, they are searching for money, and tariffs have turned out to be a convenient place to look. The amount is far less than Trump says it is, but it is not peanuts.

 Other Republicans and a lot of Democrats have a different problem. They are not ideologically opposed to trade protection and tariffs, even though they don’t like the way the current ones are being rolled out. As a result, Democrats in particular have been reduced to complaining not about tariffs per se, but about the way Trump is implementing them. They’re right about that, but it doesn’t lead them to congressional action. Better implementation is a tactic, not a policy.

That leaves Congress in a situation where one group is afraid to have a vote, and the other doesn’t know what it wants to vote on. Add to that—geezer rant here—the loss of expertise in the Congress about trade (and a lot of other things), and one can understand why congressional power over trade is atrophying.

What could Congress do? Options range from large to small. The biggest would be to renew trade promotion authority, which expired in 2021. That would assert and define Congress’s role in setting trade policy and in approving the results of presidential negotiations. Somewhat more modest, Congress could build on its 2023 legislation approving the first phase of a trade agreement with Taiwan and requiring that the second phase (which was never completed) be submitted to it for approval. Possibilities include formally approving (or disapproving) the agreements Trump has negotiated and requiring that future ones be submitted to Congress. Smaller still would be measures removing tariffs on specific items (e.g., coffee and bananas) or creating a process for issuing exclusions like the ones Trump created in his first term. These are only a few of the possibilities. Any of them would be an important step in reasserting Congress’s Article I authority. Of course, the first step with any of them is finding the will to begin, and so far, that has been lacking. House Ways and Means Committee Chairman Jason Smith (R-MO) has called for codifying the recent agreements but has yet to introduce any legislation to do so.

This may change. Republican resistance to Trump is growing slowly, mostly in the Senate. Trump has now been forced to withdraw 50 of his nominations, a multi-decade record. Demands to abolish the filibuster were ignored. The Senate voted to lift Canada, Mexico, and Brazil’s reciprocal tariffs. He is slowly sinking in the polls, particularly among younger voters, and as midterm elections approach, members of Congress will turn to self-preservation. This time around, that may mean showing their independence rather than tying themselves to the president. And, of course, the Democrats are already there. They just have to decide what trade policy they are for, not simply what they are against.

William A. Reinsch is senior adviser and Scholl Chair emeritus with the Economics Program and Scholl Chair at the Center for Strategic and International Studies in Washington, D.C.