The Wheels on the Bus Go Round and Round—and Sometimes Fall Off

Please forgive this week’s title. As a relatively new grandfather, I’m relearning songs I haven’t had to think about for years. It does, however, seem an apt metaphor for Ambassador Katherine Tai’s two appearances before Congress last week describing and defending U.S. trade policy.

She put up a spirited defense, using the time-honored tactics of lengthy, polite, and evasive answers to deflect criticism and avoid making commitments. (I speak from experience, having done the same thing during the 53 times I testified when I was in the government.) While these hearings often devolve into a litany of Congressmembers’ gripes of the week, there were several larger themes that deserve comment.

The first is a perennial favorite: lack of consultation. I can’t think of a single case in the last 40 years when Congress was satisfied with the level of consultation on trade negotiations, so the current unhappiness is neither surprising nor unusual. To be a member of Congress is to complain. There is a built-in difference of approach that never changes. For Congress, consultation means the administration coming up and saying, “We don’t know what to do. Tell us what to do.” For the administration—either party—consultation means giving Congress an hour’s advance notice on the announcement of a decision. The right answer, of course, is somewhere in between, but getting there is a fraught exercise. The best an administration witness can do is to detail what has been done and promise to do more.

The second theme, related to the first, is the role of Congress in making trade policy. The first thing a new Hill staffer handling the trade portfolio learns is Article I, Section 8 of the Constitution, which gives Congress authority to regulate interstate and foreign commerce. I suspect some of them have it tattooed on their backs. Here, Ambassador Tai has had to play defense, as the Biden administration has followed the Trump administration in pursuing trade agreements that it does not intend to submit to Congress. Ambassador Robert Lighthizer got off to a good start when he submitted the United States-Mexico-Canada Agreement to Congress (where it passed overwhelmingly), but subsequent agreements with Japan and China (phase 1) were not submitted on the grounds they did not make any changes in law that would require congressional action.

The Biden administration argues that the negotiations it has initiated on the Indo-Pacific Economic Framework (IPEF) and the Americas Partnership for Economic Prosperity do not have to be submitted to Congress for the same reason. That has produced two reactions in Congress. First, they should be submitted nonetheless because of Congress’s constitutional responsibility, and second, the reason the administration will not submit them is because they will not contain market access provisions, which many members of Congress think is a mistake. I’ll get to that shortly.

This is a bit like the consultation debate—Congress claiming a larger role in the process than presidents want to give it—but the administration is vulnerable here. The Constitution gives Congress clear authority, and the administration ignores it at its peril, both substantive and political.

Substantively, we are already seeing questions from the other IPEF nations on how durable an agreement can be if there is no congressional action to approve and implement it. Without that, it is nothing more than an executive decision that the next president can revoke. If the other countries don’t think there is congressional buy-in for the agreement, they are not likely to make significant commitments.

Politically, I see growing interest in Congress for more robust “traditional” trade agreements that include market access. For some members of Congress, particularly those from farm states, this is simply good policy. They see numerous missed opportunities to open markets that are important to their constituents. Others, all Republicans, see potential political advantage—one more thing they can blame on the president that may resonate with the public. (This is the “keep throwing mud at the wall until something sticks” theory of campaigning.) In light of broad public support for trade and trade agreements, they may be on to something there.

Ambassador Tai’s response to that gets to a fourth theme—old thinking versus new thinking. Both her opening statement and her responses to some of the questions reflected the argument she has made in the past—that traditional trade agreements did not serve the country well, and the Biden administration has deliberately embarked on a new path, formulating a trade policy designed to benefit workers rather than large corporations.

The debate over the wisdom of that will not be resolved anytime soon, and readers of this column know where I stand on it (that trade agreements create benefits, but it takes other government policies to distribute them, and that it is possible to open markets and help workers at the same time). As that argument goes on, I have a few words of advice for Ambassador Tai. Whether you’re pursuing old-style or new-style agreements, U.S. trade representatives are judged by what they finish, not by what they start, and time is running out. Move the bus faster and don’t let the wheels fall off.

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