Grumble, Grumble, Grumble

There is growing grumbling in Congress about the role it is playing on trade policy, as opposed to the role it thinks it is supposed to play. This is not new. I worked in Congress during six presidential administrations and focused on trade during four of them (Carter, Reagan, Bush, and Clinton) and saw the same tension between the two branches of government every time, and I’ve seen it from a distance in every administration since then.

This is largely due to a natural difference of view between the two branches. There is a significant difference in understanding what the term “consultation” means. Every administration promises to consult closely with the Congress. For members of Congress and their staff, that means they expect the executive branch representatives to come up to visit frequently and say, in essence, “We don’t know what to do. Tell us what to do.” (In my 20 years on the Hill, I can recall two times when that actually happened.) From the executive branch’s point of view, “consultation” means they give the Congress two hours advance notice on the decision they plan to announce.

The right answer, as usual, lies somewhere in the middle, but getting there is difficult. Trade policy decisions are complicated, and there are always multiple equities—competing agencies, different private sector stakeholders, concerns of foreign partners, and larger geostrategic issues that demand to be taken into account. It is easy for administration officials to get so wrapped up in the difficulty of making a decision that they forget to tell Congress what is going on. Sometimes, as in the midst of a trade negotiation when offers fly back and forth, there simply isn’t time to consult every time something changes. We will see that this week during the WTO ministerial conference, although if members of Congress and their staff are present in Geneva, it will make the process of simply staying in touch much easier.

Lack of consultation also can be a surrogate for straight-up disagreement. Members of Congress, particularly those of the president’s party, don’t like to tell him he’s wrong. They prefer to say he didn’t consult with them enough, and if he had, he would have made a wiser decision, when, in fact, the decision simply did not come out the way they wanted. You can see this right now on the vaccine waiver issue, where those opposed to the administration’s position are demanding more consultation and more information about the decisionmaking process, when the real point is they simply think the administration is wrong.

That approach also poses a question for the grumblers: If you’re not happy, what are you going to do about it? One answer is to demand, or require by legislation, a more formal consultation process. The irony, of course, is that such a process exists, or existed, until trade promotion authority expired nearly a year ago. There, the Biden administration made the same mistake the Obama administration made: it decided to focus on other priorities. It took Obama five years to figure out that having the authority was a good idea. We will see how long it takes Biden to come to the same conclusion.

Trade promotion authority did two important things. First, it created a formal consultative process, complete with required reports, text submissions, the gathering of stakeholder views, and so on. Former U.S. trade representative Bob Lighthizer respected that process and used it to good effect while negotiating the United States-Canada-Mexico Trade Agreement (USMCA). He went along with Congress making itself a partner in the process and as a result achieved an overwhelming vote in favor of the agreement. Not everybody was happy, but it was a resounding victory not only for substance but for process.

Second, it provided legal authority for the president to negotiate. There is a long history to this, but the short story is that every member of Congress and staffer involved in trade knows by heart Article I, Section 8 of the Constitution, which, among other things, gives Congress authority “to regulate Commerce with foreign Nations.” For the first 160 years of our history, Congress held that authority close and periodically enacted legislation setting tariffs on imports item by item. In 1934, Congress delegated that authority to the president and over the succeeding decades created a three-part process: (1) Congress authorizes the president to negotiate trade agreements and gives him a boatload of instructions on what his priorities should be, (2) the president conducts the negotiations, and (3) Congress votes to approve (or not) the result.

Both the Trump and Biden administrations, however, have taken the position that if a trade agreement does not require any change in U.S. law, it does not need to be submitted to Congress. In the case of the Indo-Pacific Economic Framework, the administration has said it does not intend to submit the result to Congress, presumably because it does not intend to make any concessions that would require congressional approval. To compound the grumbling, the expiration of trade promotion authority means the consultation requirements are no longer in force.

The administration has apparently taken the view that with the expiration of the authority, it can do whatever it wants and consult any way it wants and only has to go back to Congress if it agrees to something that would require a change in U.S. law. It appears that the evolving congressional response will be—wrong. The expiration of the authority, in fact, means the administration cannot negotiate anything.

This has potential to be a significant constitutional struggle that would make the status of future trade agreements uncertain. Both sides could defuse the situation by agreeing on new trade promotion authority that clarifies the legal situation and updates the consultation requirements, but that would be a heavy lift in the current environment. Failing that, the administration could create some good will and quiet the grumblers, at least temporarily, by announcing it will adhere to the consultation procedures in the expired law and submit any future agreements to Congress whether or not they require changes in U.S. law. That would be inconvenient for the Office of the U.S. Trade Representative, but it would be a small price to pay for a more harmonious and constructive working relationship between the two branches, at least on trade.

William Reinsch holds the Scholl Chair in International Business at the Center for Strategic and International Studies in Washington, D.C.  

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