Trade Cases

Bipartisan Support for Limiting Presidential Trade Authority

January 26, 2019

A bill limiting the president’s authority to impose tariffs under the auspice of national security will be introduced in Congress next week.

Sen. Pat Toomey (R-PA) will introduce a bill that would require the president to obtain approval from Congress before imports could be restricted under Section 232 of the Trade Expansion Act of 1962. Toomey’s proposal would also require Commerce to take a back seat to the Pentagon in determining whether import of a product impairs or threatens to impair national security. Commerce could only send remedy recommendations to the president if the Pentagon determines a threat exists.

Previous attempts led by Toomey to attach a similar bill to the National Defense Authorization Act and a farm bill were unsuccessful last year.

In August, Rep. Rob Portman (D-OH) introduced the Trade Security Act. The bill, like Toomey’s, states that the Department of Defense would determine if a threat to national security from imports exists and then submit a report to the president. The president would direct Commerce to consult with the U.S. Trade Representative and the DOD on how to respond to the threat. Commerce would submit recommendations to the president, who would decide whether to act. Congress could reject the president’s proposed action by passing a joint resolution of disapproval.

The Trade Security Act would also expand the language in Section 232 to apply to all imports. Currently, Congress has veto ability only on trade measures applied to imports of petroleum or petroleum products.

Portman plans to reintroduce the bill in February. Neither bill would be retroactive to tariffs already imposed on steel and aluminum imports, but would allow Congress to halt any attempt by the administration to place proposed tariffs on automobiles and auto parts.

Senate Finance Committee Chairman Chuck Grassley (R-IA) said in a statement earlier this month that he intends to “review the president’s use of power under Section 232” and expressed his belief that our allies should not be alienated by tariffs “disguised as national security protections.”

The American Institute for International Steel is currently litigating whether Section 232 violates the constitutional prohibition against Congress delegating its legislative powers to the president. If successful, the current Section 232 tariffs and quotas would be terminated, and firms would be entitled to refunds for tariffs paid. It would prevent the future use of Section 232 on the auto industry.