A Duty of Congress

April 16, 1962

In the Constitution, Congress alone is granted power “to lay and collect . . . duties” and “to regulate commerce with foreign nations.” In the government’s tariff bill Congress is asked to make a sweeping delegation of these powers to the President.

Few people realize how sweeping that delegation is. Discussion has centered around the proposal that the President be given power to reduce this country’s existing tariffs by as much as 50 percent in return for comparable reductions by other countries—and even to cut tariffs to zero on items on which the U.S. and Common Market together account for 80 percent or more of aggregate world export value. But the bill would also give the President power: (1) To increase any tariff by 50 percent over “the rate existing on July 1, 1934” (i.e., before any of the reductions made in 28 years of reciprocal agreements); (2) to levy new tariffs on duty-free goods up to half of their value; and (3) to impose any “other import restriction . . . as he may determine to be in the national interest.”

AN ACT TO ABDICATE

So the Trade Expansion Act of 1962 might more appropriately be called “An Act to Abdicate the Constitutional Power and Responsibility of Congress over Tariffs and Trade and to Turn Everything over to the President.”

There is, of course, a practical argument for a limited delegation of power in this field. Though reciprocal-trade agreements rest on dubious assumptions, Congress has already been delegating its tariff-making powers for 28 years. Individual agreements often involve more than a thousand items. Congress as such is hardly equipped to bargain separately with each foreign country or trading bloc.

But that is no reason why it need surrender its constitutional powers and responsibilities, tie its own hands in advance, and reduce itself to impotence in this field. It can and should provide that the President submit every trade agreement to Congress, but that an agreement go into effect in 60 days unless either house votes against it.

There are ample precedents for such a provision. It is precisely the provision in the Reorganization Act (which enabled Congress to halt the proposed Department of Urban Affairs). The President himself, in asking a few weeks ago for discretionary powers to cut income taxes, suggested that such powers be “subject to Congressional veto.”

CONGRESSIONAL VETO

Yet Under Secretary of State Ball declares: “It would greatly weaken the negotiating position of the United States if it could go through the great agony of making a very complicated trade agreement and then not be able to assure the country with which it was making it that it would be a binding treaty.”

If this argument is sound, the Senate should be deprived of its constitutional power to ratify treaties by a two-thirds vote or to reject them by a vote of one-third plus one. This constitutional provision is a far more formidable hurdle than the safeguard here proposed. It requires a positive two-thirds majority endorsement by the Senate, which can let a negotiated treaty die by mere inaction. Under the proposed Trade Expansion bill amendment, a trade agreement would automatically go into effect unless at least one house acted adversely on it within 60 days. Surely Congress should not allow any agreement to go into effect to which even one house is actively opposed.

Nor is there any substance in Ball’s “agony” argument. Both sets of government negotiators would be paid for their work and time. Those of the foreign country would lose nothing by their own tariff concession if the agreement were rejected; the concessions would simply not go into effect. Our own negotiators would be put in a stronger rather than a weaker bargaining position; they could argue that, if they conceded too much, Congress might kill the whole agreement.

Finally, turning power over to the President is no guarantee against political logrolling—as illustrated by Mr. Kennedy’s order for a sharp increase in the tariffs on woolen carpets and glass, the bulk of which comes from Belgium, in order to win sectional support for his program.