On January 30, 2019, legislation was introduced in the Senate and House on a bi-partisan basis that would curtail the President’s power to impose tariffs for national security reasons. The Bicameral Congressional Trade Authority Act of 2019 was introduced by Senators Pat Toomey (R-PA) and Mark Warner (D-VA), along with Representatives Mike Gallagher (R-WI) and Ron Kind (D-WI). The legislation restricts the President’s authority to impose tariffs for national security reasons by amending Section 232 of the Trade Expansion Act of 1962 (“Section 232”).

Section 232 is a trade statute that authorizes the President to impose tariffs or quotas on imports that “threaten to impair” U.S. national security. Currently, tariffs or quotas may be imposed under Section 232 after an investigation by the Department of Commerce. If Commerce finds that imports of certain goods threaten to impair national security, it will recommend certain responsive action—including tariffs and/or quotas—to the President. The President may then proclaim that tariffs or quotas should be imposed without Congressional approval.

Although Section 232 has been used infrequently, the Trump administration has exercised its Section 232 authority to impose tariffs of 25% on imports of steel and 10% tariffs on imports of aluminum. The Administration is also considering using the authority to impose tariffs on imported autos. The Administration’s use of the auhority has prompted concerns from business groups and members of Congress who fear the impact of the 232 tariffs on both the U.S. economy and U.S. relationships with allies.

To address these concerns, members of Congress are proposing that the statute be amended to require Congressional oversight over Section 232 actions. The Act introduces significant changes to Section 232, including:

• Congress has 60 days to approve any proposed Section 232 actions. Approval would take the form of an approval resolution in Congress. If, however, Congress does not pass an approval resolution for a proposed Section 232 action, then the President’s proposed action would not take effect.

• Narrowed definition for “national security.” The bill narrows the definition of “national security” for purposes of a Section 232 investigation to actions involving goods used in military equipment, energy resources, and/or critical infrastructure. In addition, the imported goods subject to the investigation must constitute a “substantial cause” of a threat to impair U.S. national security.

• National security determinations transferred from the Department of Commerce to the Department of Defense. Although the Department of Commerce would still determine the appropriate trade remedy in the event of an affirmative determination, the Department of Defense would have the authority to determine whether imports constitute a substantial cause of a threat to impair U.S. national security.

• Retroactive application to the current Section 232 steel and aluminum tariffs. If the Bicameral Congressional Trade Authority Act is passed, the bill provides Congress with retroactive authority to review the current 232 actions. If Congress does not pass an approval resolution for the actions within 75 days after enactment of the Act, Section 232 actions taken in the last four years would be repealed.

• Authorizes the International Trade Commission (ITC) to administer an exclusion process for any future Section 232 action. Given criticisms of the Department of Commerce exclusion processes for the steel and aluminum tariffs, the bill transfers authority to administer an exclusion process to the ITC.

• ITC reports on the impact of Section 232 trade actions. The bill would require the ITC to submit reports to Congress on the industry-specific and downstream impacts of all Section 232 actions taken in the last four years, along with any future Section 232 actions.

At this stage, it is unclear whether the Bicameral Congressional Trade Authority Act will become law. Senator Pat Toomey, a principal sponsor of the legislation, has stated that it needs “much broader support” before it can advance through the Senate.