A friendly amendment to the Global Trade Accountability Act

Sen. Mike Lee (R-Utah) is giving it another try.

This week, Lee reintroduced his Global Trade Accountability Act, a bill he first debuted in 2017. He revised the text in 2019, and submitted it again in 2021. The bill is timely and important, perhaps now more than ever. That said, to deliver on its full promise, the bill needs a simple fix.

The bill seeks to give Congress a vote on any unilateral trade actions by the president, like the infamous steel and aluminum tariffs. The devil is in the details, as they say, and a crucial detail has changed. Specifically, the 2023 bill drops an item found in the 2017 version, one that is highly relevant to the moment. Adding this item back in would strengthen the Global Trade Accountability Act.

First, some background.

Lee’s motivation is that, in recent years, U.S. trade policy has increasingly been carried out through executive order. The Petersen Institute for International Economics reports, for example, that while Presidents Clinton, Bush and Obama averaged 19 executive orders on trade, President Trump invoked 41. Trump’s total was inflated by his steel and aluminum tariffs, Section 301 tariffs on China and the sheer volume of actions under the International Emergency Economic Powers Act. The length of this list worries Lee: There are too many ways for the president to bypass congressional oversight. Something needs to be done, but what?

Lee’s bill sets out what the president would need to explain about any proposed unilateral trade measure. This would include “the proposed effective period,” as well as “an economic cost-benefit analysis” showing the action was in “the national economic interest of the United States.” The bill also calls on the comptroller general to do a reality check on the president’s assessment. Congress would then hold hearings, and vote on a joint resolution.

If approved, the unilateral trade action would be reviewed within 12 months by the International Trade Commission, which would be tasked with assessing “the economic effects of the action on producers and consumers in the United States.”

There’s a lot to like about this bill. It’s especially timely given the recent opinion of the U.S. Court of International Trade (CIT) upholding the third and fourth rounds of the Trump/Biden China tariffs that had been challenged by thousands of American importers. Lee’s 2023 bill might just prove to be the legislative fix to remedy the court’s unwillingness “to unscramble this egg.”

But there’s a problem. Lee’s 2017 version required the president to weigh “the potential effect of retaliation from trading partners affected by the action,” but this concern isn’t in the 2023 bill. It should be reinserted.

To see why, consider the CIT’s ruling on the Trump/Biden China tariffs. The plaintiffs in that case had argued that the third and fourth rounds of tariffs were used to clean up the mess that the first two rounds had created. In other words, because China retaliated for these early salvos, the third and fourth rounds were not just tweaks but constituted “an unprecedented, unbounded and unlimited trade war,” and thus are illegal under Section 301.

In its first ruling, the CIT didn’t disagree but said it would “not try to unscramble this egg.” On appeal, the CIT could do little more than concede that the government had to meet a standard that “is not particularly demanding.” This is why Congress has to step in. Lee’s bill can get the job done, but not if it leaves out the concern for “retaliation” that the 2017 version of the bill explicitly flagged. Absent this, the president’s report, which the bill requires before Congress votes, will miss a lot, if not most, of the action.

Over the last 10 years, Congress has been sidelined by a slew of executive orders on trade. If the Global Trade Accountability Act doesn’t gain traction again, Congress should have to answer for its lack of interest in reclaiming tariff authority.

Marc L. Busch is the Karl F. Landegger Professor of International Business Diplomacy at the Walsh School of Foreign Service at Georgetown University and a global fellow at the Wilson Center’s Wahba Institute for Strategic Competition. Follow him on Twitter @marclbusch.