For a former trade policy analyst like me, nothing personifies more the dysfunction of the current US system of governance then trade.  The Constitution is very clear in that only Congress can impose tariffs (which are like taxes), and it even goes as far as requiring that treaties with foreign nations (like trade agreements) need a 2/3 majority to pass in the US Senate.  And although Congress still maintains a great deal of power in passing a trade agreements that imposes tariffs on US imports, Congress has also extended a great deal of discretion to the President to withdraw from a trade agreement (like President Trump is trying to do in the case of NAFTA) and impose unilateral tariffs in the name of national security (like President Trump did with steel and aluminum imports).  Now, the President is even considering whether to impose a 25% tariff on imported cars and auto-parts.

However, two efforts are currently under way to curtail presidential power to impose tariffs.  One is political, in a form of a new law making its way through both chambers of Congress; the ‘Bicameral Congressional Trade Authority Act.’  The bill will put the Department of Defense in charge of investigations into whether national security justifies new tariffs, and it will require Congressional approval before a president can impose tariffs using the ‘national security’ justification (see. Section 232 of the Trade Expansion Act of 1962).

The other is a legal challenge to the Presidents use of national security to impose tariffs, which like taxes, only Congress can impose: therefore, the challenge goes,, it was unconstitutional for Congress to delegate such ‘legislative powers’ to the Executive Branch (see. ‘Whats next, a tariff on peanut butter?‘ by George Will).

The chances that the ‘Bicameral Congressional Trade Authority Act’ will become law, are rather slim.  No President (current, past or future), who will have to sign such law, would be willing to give up such powers.  On the other hand, the legal challenge to the unconstitutional delegation of Congressional power goes at the core of what is wrong with the unbalanced US Federal system of governance (excessive concentration of power at the hands of one person – the President!).

Stay tuned…