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Saturday, September 22, 2018

Tariff Authority

Rachel Fefer and colleagues write at CRS:
Section 232 of the Trade Expansion Act of 1962 (19 U.S.C. §1862) provides the President with the ability to impose restrictions on certain imports based on an affirmative determination by the Department of Commerce (Commerce) that the product under investigation “is being imported into the United States in such quantities or under such circumstances as to threaten to impair the national security.” Section 232 actions are of interest to Congress because they are a delegation of Congress’s constitutional authority “to regulate Commerce with foreign Nations.” They also have important potential economic and policy implications for the United States.

Congress enacted Section 232 during the Cold War when national security issues were at the forefront of national debate. The Trade Expansion Act sets clear steps and timelines for Section 232 investigations and actions, but allows the President to make a final determination over the appropriate action to take following an affirmative finding by Commerce that the relevant imports threaten to impair national security. [Before 2017] there have been 26 Section 232 investigations resulting in nine affirmative findings by Commerce. In six of those cases the President imposed a trade action
In establishing Section 232 of the Trade Expansion Act, Congress delegated aspects of its authority to regulate international commerce to the Administration. Use of the statute to restrict imports does not require any formal approval by Congress or an affirmative finding by an independent agency, such as the U.S. International Trade Commission, granting the President broad discretion in applying this authority. Should Congress disapprove of the President’s use of the statute, its current recourse is limited to passing new legislation or using informal tools to pressure the Administration (e.g., putting holds on presidential nominee confirmations). Some Members and observers have suggested that Congress should require additional steps in the Section 232 process, such as requiring an economic impact study by the U.S. International Trade Commission, congressional consultation or approval of any new tariffs (see, for example, S. 3013), or allowing for a resolution of disapproval as exists in the case of petroleum. In addition, some Members and observers have suggested that Congress should revisit the delegation of its  constitutional authority more broadly, such as by requiring congressional review of executive branch trade actions generally (see, for example, H.R. 5760 and S. 177).