Congressional authority in a time of Trump executive overreach

The impeachment proceedings against President Donald Trump have stirred new interest in the Watergate investigation of 1973-74. At that time, Congress and the executive branch were in a constitutional tug-of-war. 

Today, in the House of Representatives at least, Congress is reasserting its constitutional powers as it did when it impeached President Nixon. There are also stirrings that the House may flex greater political muscle when it comes to “regulating foreign commerce.” 

The Senate, however, lags behind in addressing the issue of unchecked executive action on international trade, tariffs, arms sales and sanctions. This is generating severe diplomatic complications for both U.S. allies and competitors.

As the 2020 election approaches, the president will need to satisfy his political base and double down on policies he promised during his 2016 campaign. Senate Majority Leader Mitch McConnell (R-Ky.) will “crack the whip” to enforce loyalty to the president and his agenda.

The Senate has a limited window of time to challenge the administration and reassert its constitutional power and role in foreign policy. The current moment is about more than the president’s political future. It is about the long-term capability of the Senate to function as a balance against any president that threatens to permanently damage America’s existing alliances and undermine America’s status as a global leader. 

In recent decades, presidents have accumulated power at Congress’ expense. This pattern includes the use of national emergencies and trade provisions, in which the executive branch ignores or eclipses the legislature.

Congress will soon vote whether to approve the U.S.-Mexico-Canada Agreement which Trump has been negotiating for two years to replace NAFTA. Some members of the House have pushed back in response to the damage done by Trump’s trade wars, inconsistencies and fraying relations with allies and multilateral institutions designed by his predecessors in the White House. 

For example, Representatives Suzan DelBene (D-Wash.) and Ron Kind (D-Wisc.) have introduced legislation that gives Congress greater power to prohibit the imposition of duties on the importation of goods under the International Emergency Economic Powers Act.

While there are examples of the Democrat led House exercising its role in “regulating foreign commerce” vis-a-vis President Trump. The same cannot be said for the Senate, which is chaired by Chuck Grassley (R-Iowa). 

Earlier in the 116th Congress, Chairman Grassley expressed concern over President Trump’s use of the Trade Act of 1974 to engage in a tit-or-tat trade war with China. This was a dramatic departure from U.S. practice of using the multilateral World Trade Organization dispute settlement process. In Grassley’s words, “I fear that continuing to use tariffs in this way will undermine our credibility with our current and potential trading partners and undo the benefits of our historic tax reform.” 

There was also hope earlier in the year that Chairman Grassley would work with ranking member Ron Wyden (D-Ore.) to curb President Trump’s use of “national security” as a rationale for the imposition of tariffs. 

In early November, Grassley gave a 232 related speech on the Senate floor addressing Congress’ Constitutional authority to review foreign commerce but also acknowledging political pressure from other Republicans. “However, every time we get close to marking up a Section 232 bill… I get calls from colleagues who say: Mr. Chairman, the President won’t like us taking away his tariff law, and we don’t want to make the President upset.”

Today’s Senate could learn a lot from its predecessors in the early 1970s, a time of Senate assertiveness. In the era of Watergate and the Vietnam War, the secrecy and policy failures from administrations by both parties left the public demanding change. 

A powerful, bipartisan group of senators came together to reclaim their constitutional prerogatives. The political conditions that stimulated pushback also resulted in the passage of prominent bipartisan legislative initiatives. 

During this time, Congress reasserted its budget authority by passing the Congressional Budget and Impoundment Act. Congress also exerted its power over war powers with the War Powers Act of 1973. 

Nixon’s large military sales deals with Saudi Arabia and Iran also raised congressional pushback. Under the Foreign Military Sales Act (FMSA) enacted in 1968, Congress had delegated authority to the president to sell and transfer defense articles, services and training. However, by December 1974 Congress had reclaimed substantial oversight.

Bipartisan concern in Congress resulted in the passage of the Nelson-Bingham Amendment that transformed U.S. arms export policy. 

This mandated that the president must inform both Houses of Congress of the details before the sale of any defense article or service costing $25 million or more, and allowing 20 calendar days to adopt a “veto” resolution.

In the early 70s, the Senate drew its greatness from its willingness to work with presidents when possible but hold the executive branch accountable when necessary. The Senate was also willing to engage in bipartisan compromise, placing the nation’s well-being over individual political ambitions. 

In contrast, this 116th Congress, President Trump vetoed three Senate resolutions that blocked his sale of $8.1 billion in arms to Saudi Arabia, and the Senate failed to overturn Trump’s actions. Although Congress had been informally blocking the sale of smart bombs since at least May of 2018, the emergency provision and a divided Upper House allowed the President to move forward without congressional approval.

In the past, the Congress has used the power vested in it by the Constitution to check the executive branch when it oversteps. The impeachment hearings in the 116th Congress is demonstrating the wisdom of a system based on separate but equal branches of government. It remains to be seen, however, whether the bipartisan assertiveness of the Senate of the early 1970’s will serve as an example for current lawmakers 

As the 2020 election looms the need to restore balance between the legislative and the executive grows more urgent. Much is at stake, both at home and abroad. 

Lawmakers from both sides of the aisle should look to the activist Congress of the 1970s to model foreign and trade policies that will serve the future as well as it has served the past 75 years. In the face of unprecedented economic, military, and diplomatic competition from China and fraying relations to our foreign allies, 

Congress must be willing to tackle the challenges of the 21st Century while preserving the system of checks and balances that has served the country well since the Founders made it the centerpiece of our constitutional system.

Paula Stern, Ph.D. is founder and president of The Stern Group. She is a former chairwoman of the U.S. International Trade Commission. You can follow The Stern Group on Twitter @SternGroupDC.