After the unexpected resurrection of a long dormant trade law by President Trump in 2017 and 2018, Congress wants to reclaim some of its trade oversight authority in 2019. A pair of bipartisan, bicameral competing bills have been introduced in Congress to modify Section 232 of the Trade Expansion Act of 1962 (19 U.S.C. §1862), the provision relied upon by President Trump to justify imposing additional duties or quotas on imports of steel and aluminum (and potentially on automobiles and auto parts and perhaps uranium) entering the United States on the ground that such imports threaten to impair U.S. national security. A close review of those bills provides some insight into why one of those bills has a greater likelihood of moving forward than the other, and why further revisions to any such bill are likely to be considered, to prevent a presidential veto. That review also indicates that even a bipartisan consensus that the Trump administration has not implemented Section 232 as Congress intended may yet fail to result in significant revisions to the law.
S. 287, the Bicameral Congressional Trade Authority Act, was introduced in the Senate on January 31 by Sen. Pat Toomey (R-PA), with 11 cosponsors (6 Republicans, 4 Democrats and 1 independent). S. 365, the Trade Security Act of 2019, was introduced on February 6, 2019, by Sen. Rob Portman (R-OH), with 8 cosponsors (5 Republicans and 3 Democrats). Identical bills were introduced simultaneously in the House of Representatives. H.R. 940 is the House counterpart to the Toomey bill. It was introduced by Rep. Mike Gallagher (R-WI), with 19 cosponsors (12 Republicans and 7 Democrats). The companion House bill to the Portman bill is H.R. 1008. It was introduced by Rep. Ron Kind (D-WI), who is also a co-sponsor of H.R. 940; it has 6 cosponsors (4 Republicans and 2 Democrats).
The Toomey Bill
The Toomey bill (S. 287) would (1) define the term “national security” as “the protection of the United States from foreign aggression,” expressly provide that national security “does not otherwise include the protection of the general welfare of the United States” and delete language in the current law instructing the Secretary of Commerce and the President to “recognize the close relationship of the economic welfare of the Nation to our national security and . . . . the impact of foreign competition on the economic welfare of individual domestic industries,” (2) limit import measures to “covered articles,” which would be defined as “an article related to the development, maintenance, or protection of military equipment, energy resources, or critical infrastructure essential to national security,” (3) designate the Defense Department with lead responsibility for investigating whether imports present a national security threat, while delegating to the Commerce Department responsibility for identifying the appropriate remedy if the Defense Department makes an affirmative determination that imports threaten to impair U.S. national security, and (4) preclude implementation of a proposed measure to unless a joint resolution of approval by the House and Senate is enacted within 60 calendar days of receipt of a report by the President describing the action proposed to be taken and the reasons for it. Current law provides for Congress to enact joint resolutions of disapproval of a Presidential “adjustment of imports” if it disagrees with the President’s decision, but that option is available only for petroleum and petroleum products. The Toomey bill deletes that provision.
In addition, the Toomey bill’s provisions would be retroactive and therefore would allow Congress to terminate, via a joint resolution of approval, the tariffs or quotas the President has imposed on steel and aluminum. For those measures, within 15 days of enactment of the amended Section 232, the President would be required to submit a report to Congress on the earlier determinations, and if not approved by Congress within 60 days of receipt, those measures would be terminated. (The bill language suggests that the termination would be prospective; there is no indication that any duties previously collected under Section 232 would be refunded upon termination of the measure.) Finally, the Toomey bill would codify the exclusion process by which some products have been excluded from the additional duties and would move administration of the exclusion petition and decision-making processes to the U.S. International Trade Commission. It also would charge the Commission with preparing a report, not later than 18 months after a measure is imposed, on the effects of the President’s action on the industry to which the covered article relates and the overall economy of the United States.
The Portman Bill
The Portman bill (S. 365) would prospectively permit a measure to be imposed unless a joint resolution of disapproval were enacted, and therefore is more like existing law although it would permit joint resolutions for any product subject to a Section 232 measure, not just petroleum and petroleum products. Also, if the legislation were enacted before tariffs are imposed on autos and automotive parts, the bill provides that those tariffs would be subject to the terms of the amended Section 232.
Like the Toomey bill, the Portman bill would require the Defense Department to conduct the investigation into whether imports present a national security threat. Also like the Toomey bill, the Portman bill provides that the Commerce Department would be responsible for devising recommendations for a remedy if the Defense Department makes an affirmative determination in its report to the President. However, whether to request recommendations from the Commerce Department would be wholly within the President’s discretion, after reviewing the report from the Defense Department. Notably, the bill emphasizes the need for the Defense and Commerce Departments to consult with the members of the Senate Finance Committee and the House Committee on Ways and Means in preparing their reports and recommendations. Members of Congress have complained repeatedly about limited communications from the Trump administration and the absence of consultations in the lead up to decisions that have a significant impact on constituents.
Key Differences Between the Two Bills and Legislative Prospects
The Toomey bill is far more aggressive than the Portman bill, limiting the definition of national security and the types of products that may be the subject of a Section 232 investigation and measure. More importantly, though, the Toomey bill would require a joint resolution of approval before a measure could be implemented while the Portman bill would require a joint resolution of disapproval before a measure could be blocked or terminated. Given how difficult it can be to get legislation passed, especially in the Senate, where cloture votes to allow a bill to proceed require 60 votes, a requirement of a joint resolution of approval is likely a show-stopper. If there is to be congressional review for all measures under Section 232, expanding the authority of Congress to enact a joint resolution of disapproval to any product that is the subject of a Section 232 measure should be less objectionable to the White House, especially since it would allow a measure to go into force before Congress acts. That may be one reason why Senate Finance Committee chairman Chuck Grassley (R-IA) already has indicated his preference for S. 365. He also has signaled his interest in working toward a compromise bill that would draw broad support and be acceptable to the White House.
Given the seeming congressional unanimity that the investigation should be conducted by the Department of Defense rather than the Commerce Department, a compromise bill may be more likely than not to include that change. Even if there is no agreement on whether to expressly define national security or limit the products subject to Section 232 scrutiny, putting Defense Department personnel in charge of considering the threat to national security may create guardrails that limit the products considered potential national security threats, in contrast with the decisions of the Commerce Department.
There also appears to be a good chance that Congress would include in a compromise bill a codification of a process for considering exclusions of products from Section 232 measures. But despite the many complaints by business and member of Congress over the Commerce Department’s tedious and slow-moving exclusion process for steel and aluminum products, a compromise bill may not necessarily kick that responsibility over to the International Trade Commission as proposed by the Toomey bill. In the “mini-Omnibus” appropriations bill that was signed into law by President Trump on February 15, Congress specifically appropriated money to the Commerce Department for resources to handle exclusion requests. Further, Congress included in that bill “language to ensure that the additional resources . . . enacted for [the Commerce Department] are devoted to an effective Section 232 exclusion process.” In addition, Congress instructed the Commerce Department to provide Congress with detailed, data-filled quarterly reports on the implementation of the exclusion process. That development may be seen by at least some members of Congress as negating the need to move the exclusion process to another agency.
The two bills do establish slightly different timelines for the investigation and Presidential decision-making processes, although it may be a distinction without a meaningful difference. Instead of a single 270-day investigation period, as provided in the current Section 232 and maintained under the Toomey bill, the Portman bill provides 200 days for the Defense Department investigation and then another 100 days for the Commerce Department to identify and recommend relief. However, whether inadvertently or intentionally, the Portman legislation does not specify how long the President may take to decide whether to ask the Commerce Department for remedy recommendations after the Defense Department report is presented to the President. Both bills, like current law, essentially end up with a 360-day process from start to finish.
Despite the number of Republican sponsors and cosponsors of these bills, and statements by Chairman Grassley citing his concerns with Trump’s use of Section 232 (largely because of the painful retaliatory duties imposed by Canada and Mexico on agricultural products exported by U.S. farmers), the bills face an uncertain fate because of a general reluctance of Republicans to counter the president. To date, Republicans, especially in the Senate, appear determined to avoid situations in which they would be called upon to decide whether to override a presidential veto. That suggests that unless the Congress can craft a compromise with which the president will be comfortable, or there are other developments, related (tariffs on autos!) or unrelated (Mueller investigation!), a re-write of Section 232 may get a vote in the Democrat-controlled House but not in the Republican-controlled Senate. Even if a bill does not advance to enactment, the high level of Congressional attention to these bills, particularly by prominent Republicans who have repeatedly publicly voiced their displeasure with the current use of Section 232, serves as a signal that future use of this authority will face further resistance.
This information is provided for educational and informational purposes only and is not intended and should not be construed as legal advice.
 Rep. Darin LaHood (R-IL) is also a cosponsor of both House bills. In the Senate. Sen. Lamar Alexander (R-TN) is a cosponsor of both Senate bills.
 See Explanatory Statement Submitted by Mrs. Lowey, Chairwoman of the House Committee on Appropriations, Regarding H.J.Res. 31, at Division C, Title 1, pages 3-4, available at https://www.appropriations.senate.gov/imo/media/doc/SOM%20FY19%20Consolidated%20Appropriations%20Act.pdf.
 See https://www.reuters.com/article/us-usa-trade-grassley/senate-finance-chair-says-tariffs-on-steel-aluminum-should-go-idUSKCN1PO25X.