Bills to Align Executive Authority With Congress Could Idle But Spark New Trade Discussion
Recently introduced bills meant to realign executive trade authorities with Congress appear unlikely to progress quickly, if at all, interviews with a senator and trade analysts indicated. The bills follow some recent debate over the legal authority the executive branch has to make tariff changes (see 1612150045 and 1611150035). Sen. Mike Lee, R-Utah, on Jan. 20 introduced S. 177, the Global Trade Accountability Act (here), which would make all executive branch trade actions, including tariff raises and reductions, subject to congressional approval. Rep. Morgan Griffith, R-Va., on Jan. 24 introduced H. Con. Res. 14, “Reclaiming Congress’s Constitutional Mandate in Trade Resolution,” which initiates planning for a shift of Office of the U.S. Trade Representative functions and responsibilities to Congress (here).
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Lee said in an interview he has spoken to members of the Trump administration about his legislation, but couldn’t gauge their level of support. “A lot of people are still becoming familiar with this area of law and of the fact of why it’s of concern to some people,” Lee said, acknowledging that it has been somewhat of an uphill battle to gain traction on his philosophy to bolster congressional authorities. While there have been talks with House lawmakers about how legislation like S. 177 might pass, “it’s not as though it’s easy over there, either,” Lee said. “This is going to be one of those things that we are going to undertake one step at a time. This is one of these moments where I have to remind myself that Rome was not built in a day. … What I think I need to do is set the groundwork now so that as many people as possible can become aware of it, and offer up an alternative.”
Lee said his bill currently has no co-sponsors, but he's working to shore up support from other senators. A network of lawmakers working to reclaim certain constitutional responsibilities for Congress from the executive branch drafted the legislation “long before we had any idea of who our president was going to be,” Lee said when asked about the timing of the bill. Lee said he’d be more concerned about a presidential move to raise tariffs than to lower them, but added that he wants his legislation to dictate a broad realignment of executive trade powers with Congress. Among the areas that would be subject to congressional approval under Lee’s Global Trade Accountability Act (see 1701190076) are changes to current free trade agreements and tariff-rate quotas.
Jon Kent, a lobbyist for the National Customs Brokers & Forwarders Association of America, said he doesn't foresee much success for Lee’s bill. “We are in a new era, a new President with broad assertion of executive power,” Kent said in an email. “Why would the Administration concede on these issues?” The White House didn't comment.
Congress’s ceding of original Constitutional power over U.S. commerce with foreign nations to the USTR “limits accountability,” Griffith said a statement describing his bill (here). He pointed to the Trans-Pacific Partnership as an example of deals that can falter under a current process essentially devoid of congressional input and, therefore, less likely to serve broad national interests. “Imagine, if you will, that the office of the United States Trade Representative is a tree,” Griffith said. “My bill would simply establish a plan to dig up the tree, roots and all, from the White House lawn, transport it a few blocks up the road, and replant it in the grounds of the United States Capitol."
An “ad hoc committee” referenced in Griffith’s bill would consist of House and Senate members, and would be informed by an advisory board consisting of executive and legislative branch officials, as well as representatives of industry, agriculture and labor interests. The committee would be required to produce a report with a plan for the transfer of USTR functions to Congress. "This isn’t about partisan politics or any particular trade deal, but rather is about exercising Congress’s Constitutional responsibilities when it comes to trade issues,” Griffith said.
Arnold and Porter attorney Claire Reade said many members of Congress believe USTR remains well-positioned to respond to global issues while representing U.S. interests. Still, Lee’s and Griffith’s bills could start a national conversation about whether some executive trade powers should be returned to congressional jurisdiction, she said. The Senate Finance and House Ways and Means committees' leadership didn't comment on the bills.