Checks and Balances: Reaffirming the Role of Congress

Another priority for the Biden administration and Congress should be to reaffirm the role of Congress on trade. Article I Section 8 of the Constitution vests Congress with the exclusive authority “to lay and collect taxes, duties, imposts and excises… [and] to regulate commerce with foreign nations.” Over recent decades, however, Congress has delegated authority to levy tariffs to the executive branch through at least half a dozen laws in a manner arguably at odds with the Congress’s constitutional primacy on trade. Congress should enact legislation to ensure that executive tariff actions under any of these delegated authorities are contingent on an affirming vote by both houses.

In due course, Congress should also authorize a new iteration of Trade Promotion Authority (TPA). Under TPA, Congress establishes U.S. trade negotiating objectives as well as consultation and notification requirements for the executive branch, which has the constitutional responsibility for negotiations with foreign governments. If the administration follows TPA’s requirements and timeline, implementing legislation for new trade agreements receives privileged consideration in the Congress (i.e., trade agreement implementing bills may not be amended and require only a simple majority to be approved).

The most recent iteration of TPA, the Bipartisan Congressional Trade Priorities and Accountability Act of 2015, will expire in 2021. It represents an excellent articulation of negotiating objectives and practical consultation requirements which the next version of TPA will hopefully emulate.

ACTION: The Chamber supports legislation to ensure that executive tariff actions under any of the existing delegated authorities in U.S. law are contingent on an affirming vote by both chambers of Congress and will advocate, in due course, for legislation to renew Trade Promotion Authority.