Trade Cases

Leibowitz on Trade: Bill Would Limit Presidential Authority

February 3, 2019

Trade attorney and Steel Market Update contributor Lewis Leibowitz offers the following update on events in Washington:

Congress started the year in international trade by introducing bills to limit presidential authority to order import restrictions. There are two significant pieces of legislation in the House and one in the Senate. I will briefly summarize the House bill, H.R. 723, entitled Global Trade Accountability Act of 2019, which was introduced in the House on Jan. 23.

H.R. 723 would add a provision to trade legislation requiring that any “unilateral trade action” by the president be effective only after a congressional joint resolution approving the action. A “unilateral trade action” means any presidential decision under several statutes. The Trade Act of 1974 includes authority to act in response to balance of payment issues (section 122), to unfair acts in international trade (section 301 and following), market disruption (sections 406, 421 and 422), foreign discrimination against products of the United States (19 USC section 1338), national security actions (section 232 of the Trade Expansion Act of 1962), implementation of trade agreements (section 103(a) of the Bipartisan Congressional Trade Priorities and Accountability Act of 2015, the Trading with the Enemy Act and the Emergency Economic Powers Act. This bill is clearly not limited to section 232 actions. While the president could take action for a non-renewable period of 90 days, for a period any longer unilateral action would have to approved by a congressional joint resolution in order to take effect. This would be effected by a new statute (section 155, amending the Trade Act of 1974) that prescribes procedures for consideration of such a joint resolution.

The bill was introduced Jan. 23 with 10 cosponsors, all Republicans. It has broad business community support, but it is not bipartisan, at least not yet.

This bill and the Bicameral Congressional Trade Authority Act of 2019, introduced in the House and Senate on Jan. 30, are the first efforts in the new Congress to restrict the president’s authority to impose tariffs, quotas and other trade restrictions that may harm essential industries in the United States without consulting Congress. It is too early to predict where this effort will lead. However, it appears that many members of Congress are serious about reducing the likelihood of future disruptive trade actions without congressional involvement.

I will, in future updates, summarize other legislative proposals, including a bill that would expand the president’s authority to order trade restrictions.

Lewis Leibowitz

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