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Articles served from cato.org

Congress Should Retire Section 122

Clark Packard Last month, I had the pleasure of sitting down with Rep. Jimmy Panetta (D‑CA) at a Cato policy forum focused on Section 122 of the Trade Act of 1974 and the broader question of congressional tariff authority. Preceding our fireside chat, the American Enterprise Institute’s Stan Veuger and Hana Greenberg—who previously served as chief of staff to former Rep. Ron Kind (D‑WI)—joined for a panel on the legality of Section 122, whether the conditions justifying its use actually exist today, and what Congress can realistically do to reassert its constitutional role over trade. Late last year, Veuger and I wrote in Foreign Policy that if the Supreme Court struck down the Trump administration’s International Emergency Economic Powers Act (IEEPA) tariffs, Section 122 was an obvious fallback. Sure enough, after the Supreme Court’s February ruling against the IEEPA tariffs in Learning Resources, Inc. v. Trump, the administration quickly pivoted, slapping a 10 percent tariff on nearly all imports under Section 122’s balance-of-payments authority. But, as Veuger and I explained, Section 122 was designed for a world of fixed exchange rates, in which the US dollar was pegged to gold—a world that no longer exists. Invoking it now to address a supposed balance-of-payments crisis strains both the statute and credulity. My Cato colleague Kyle Handley has also laid out the historical case for why the administration’s Section 122 invocation doesn’t hold up. As he explains in a recent blog post, Section 122 emerged from the Bretton Woods era of fixed exchange rates, when a balance-of-payments deficit could become a direct claim on US gold reserves. Handley notes that French President Georges Pompidou literally sent a ship to New York to retrieve French gold deposits, a vivid illustration of the kind of payments crisis the statute was actually designed to address. Under today’s floating exchange rate system, no such problem exists—trade deficits are simply mirrored capital inflows. Handley also shows that the current account deficit in 2024, measured as a share of GDP, is not historically unusual and was well below the peaks registered in 2002–2008. Not even then did presidents declare a balance-of-payments emergency. As Handley, who also signed an economists’ amicus brief in support of plaintiffs challenging the Section 122 tariffs in the US Court of International Trade, surmises: “If ‘balance-of-payments deficits’ can be redefined to mean some politically salient trade imbalance, then Section 122 stops being a narrow emergency provision designed for a fixed-exchange-rate system and becomes a standing reservoir of discretionary tariff authority.” Some members of Congress, meanwhile, are taking actions of their own. Rep. Panetta has since introduced a bill that takes direct aim at the administration’s use of Section 122. He recently introduced the Stop Global Tariffs Act, co-led by Rep. Don Bacon (R‑NE) and Ways and Means Trade Subcommittee Ranking Member Linda Sánchez (D‑CA). The bill does three things: (1) strikes down the current Section 122 10 percent global tariffs, (2) requires that importers already harmed by those duties be reimbursed, and (3) prevents the administration from relaunching the same tariffs under a new declaration. As I noted immediately following the Supreme Court’s IEEPA ruling, judicial intervention can only go so far. Courts can strike down specific tariff actions, but they can’t fix the underlying statutory landscape that gives presidents the tools to keep trying. (Plus, there are legitimate questions about how far courts will go in second-guessing presidential determinations of fact that presuppose the invocation of these statutes.) Congress wrote these authorities; Congress expanded and delegated more of them over decades; and Congress is the appropriate institution to claw them back. Legislation like the Stop Global Tariffs Act is exactly the structural remedy that’s needed. Section 122 was built for a different era, and the administration’s reliance on it signals how legally cornered its tariff agenda has become. The Stop Global Tariffs Act won’t sail through a Republican-controlled House, but its value isn’t contingent on passage. Building the political case for Congress to reclaim its Article I authorities over tariffs and trade starts with legislation like this. It bears repeating that these tools don’t belong to any one president. The statutory hooks the Trump administration has exploited—IEEPA, Section 122, Section 232 (i.e., “national security” tariffs), and Section 301 (i.e., “unfair trade” tariffs)—would be equally available to any future occupant of the White House, of either party. Congress has spent decades ceding its constitutional authority over trade, and emergency provisions have a way of becoming permanent features of executive power rather than the temporary, narrowly targeted measures they were sold as. Section 122 is the latest chapter in that story. Fixing it requires more than litigation and legislative gestures; it requires Congress actually acting to claw back its constitutional powers.

Apr 16, 202613 votes

The Case for Letting FISA’s Section 702 Expire

Patrick G. Eddington The countdown on a key U.S. surveillance capability has begun, with Section 702 of the Foreign Intelligence Surveillance Act (FISA) set to expire on April 20 absent its reauthorization by Congress. We should let it. Originally sold to the public as a counterterrorism-related surveillance response to the 9/11 attacks, the Section 702 program has morphed into far more than a “foreign intelligence information” collection tool. And recent efforts to reform, rather than repeal, the legislation fall short. , Section 702 authorizes the National Security Agency (NSA) to collect communications of non‑U.S. persons located abroad without a warrant. However, because of the structure of the global telecommunications system, the text messages, phone calls, and other digital data of people in the United States are invariably captured during FISA Section 702 collection activities. That information is stored in databases that are queried by the NSA, the Federal Bureau of Investigation, and even some Central Intelligence Agency personnel—all without having to obtain a warrant from a federal judge before conducting such searches. The prior abuses of such Section 702 collection and warrantless database querying are well documented. This month, a bipartisan group of senators introduced a 116-page bill—the Security and Freedom Enhancement (SAFE) Act—ostensibly designed to bring an end to nearly 20 years of constitutional rights violations under Section 702. But the legislation includes several fatal flaws, potentially allowing for the continuation of warrantless searches and unrestricted data collection targeting Americans. , Recent efforts to reform the federal government’s intelligence-gathering capability fall short. , A recent court case illustrates why sweeping changes to Section 702 are both long overdue and desperately needed. One day after Donald Trump was sworn in for his second presidential term, Judge LaShann DeArcy Hall of the Eastern District of New York unsealed her previously classified ruling in U.S. v. Hasbajrami. In short, the case involved an episode in which FBI personnel conducted warrantless searches of the FISA Section 702 database for information on the defendant, a legal permanent resident from Albania charged with “material support to a terrorist organization,” and failed to disclose that fact at trial. While the revelation did not result in a mistrial, upon remand from the 2nd Circuit Court of Appeals, Judge Hall examined the question of whether such a warrantless search was constitutional. Her excoriation of the Biden Justice Department on the matter was blistering, arguing that “the Government suggests that simply because their queries pertained to foreign intelligence, without more, they fall within the exception [for requiring a warrant] … that is just untrue.” She concluded that a warrant was indeed required to access stored FISA Section 702 data. To lawmakers’ credit, the new FISA Section 702 reform bill put forth by Sens. Mike Lee of Utah, Dick Durbin of Illinois, Kevin Cramer of North Dakota, and Mazie Hirono of Hawaii includes such a warrant requirement. Unfortunately, it also includes multiple “exceptions” that make the requirement less stringent than it should be. The plain fact of the matter is that no person on U.S. soil should be the subject of intelligence collection under FISA in the first place unless they are in direct contact with a known or suspected terrorist or foreign spy. And if they are, that itself is probable cause to get a warrant for investigative purposes under the Fourth Amendment. Yet it’s known that information on millions of innocent Americans is swept up and stored for years via Section 702’s digital dragnet. The bill, as drafted, does nothing to end that practice. However, the bill’s authors do attempt to address another major, unregulated surveillance practice plaguing American citizens: the easy availability of personal information via tech companies and data brokers. It’s not the first effort to prevent this practice. In 2024, the House passed on a bipartisan basis the Fourth Amendment Is Not For Sale Act, which would have required federal law enforcement to get a warrant from a judge in order to obtain personal information held by commercial firms such as Google or the myriad data brokers operating in the United States. Unfortunately, the Senate didn’t take up the legislation last session, and the commercial data acquisition prohibitions in the SAFE Act also include major carve-outs that may be exploitable by federal law enforcement and intelligence agencies. The latest reform bill also falls short because of its reliance on federal enforcement. Take its imposition of criminal penalties for false or misleading FISA Court submissions, for example. This provision, like all others in the bill, presumes the Justice Department is run by an attorney general who will seek to prosecute such breaches even if they are committed by political appointees of the administration in which the attorney general serves. That was a questionable presumption in the pre-Trump era. In the world of Trump 2.0, such expectations ignore not only the current administration’s abysmal legal compliance track record but the terrible precedents that misconduct has set for those who follow Trump into office. It’s also telling that the two leading surveillance reform voices in the Senate—Ron Wyden of Oregon and Rand Paul of Kentucky—have not thus far co-sponsored this legislation. Surveillance reform advocates should view their silence as a big red flag. Finally, even if the SAFE Act were to pass the Senate and House, it faces an almost certain veto from Trump. Key presidential aide Stephen Miller is pushing hard for the reauthorization of FISA as is through at least 2027. Miller has the ear and trust of the president. It’s not hard to see how this fight will play out absent a change in the political dynamics. Surveillance reformers in the Senate can change those dynamics by simply letting FISA Section 702 expire on April 20. If FISA were to revert to its pre‑9/11 legal form, the Justice Department and U.S. intelligence community could still collect foreign intelligence information on foreign entities, including terrorist organizations. The attorney general would still be authorized to conduct warrantless surveillance on an emergency basis but would be required to report such surveillance to the FISA Court (which reviews FISA surveillance applications) within 24 hours. In other words, if Section 702 expires for a time, it wouldn’t be the end of FISA. But it would force a badly needed reckoning with its abuses—and provide Congress with time to agree on a bill that would preclude such abuses in the future. If the executive branch resists such reforms, that resistance itself would be telling: Maybe the current system depends less on legitimate intelligence needs than on the continued availability of sweeping surveillance powers.

Mar 31, 202617 votes

The Case for Letting FISA’s Section 702 Expire

Mar 31, 20269 votes

Congress Should Stop, Not Enshrine, Equity Stakes in Private Companies by Government

Tad DeHaven Congressional Republicans have long posed as defenders of free markets. But for the past year, they’ve said little and done nothing about the Trump administration’s acquisition of ownership stakes in private companies. Now, some Republicans want to use the Defense Production Act, or DPA, to give the executive branch explicit statutory authority to make this market-undermining practice permanent. Since Trump returned to office, the federal government has acquired ownership stakes, or the right to purchase shares, in a dozen companies. Many of those deals have been concentrated in critical minerals and related supply chains, but the broader pattern is unmistakable. The administration is using equity, warrants, and other ownership-like instruments to push federal power deeper into private enterprise. These moves have been announced or pursued without clear, government-wide statutory authority. Aside from occasional hearings in which Democrats raised pointed questions, Republicans have shown little interest in serious oversight, and the administration has shown no interest in providing substantive information on the deals’ terms and rationales. It’s hard to believe congressional Republicans would be so deferential were this a Democratic administration. This began with Trump wanting a sovereign wealth fund early in his second term, but the White House soon realized the president wouldn’t have complete control, since Congress would have to create it. So, dutiful administration officials set about improvising a pseudo-investment fund under the executive branch’s control. But having failed to assert itself as a coequal branch of the federal government, Republicans appear ready to shift from complacency to complicity. The present concern is the House’s Defense Production Act reauthorization bill. As amended in committee, it would effectively create a framework for executive branch equity investments. The bill would allow a member of the Defense Production Act Committee to make an equity investment once the DPA Fund manager determines that the company cannot obtain additional private equity on commercially reasonable terms. It would make the Treasury Secretary the fund manager, cap aggregate government ownership at less than 15 percent of a company’s equity, raise the DPA Fund cap from $750 million to $2 billion, and require deal documentation and reporting. Establishing parameters and accountability is all well and good, but the problem begins and ends with creating the statutory architecture for a standing executive equity portfolio in the first place. Take the requirement that private equity must be unavailable on commercially reasonable terms before a DPA official may take a partial ownership interest in a company. For example, the Small Business Administration has a similar “credit elsewhere” requirement for its 7(a) loan program. Yet, the Government Accountability Office has been reporting for years that the agency has failed to ensure compliance. Some Republicans aren’t even trying to hide their intention to carry the administration’s water. In September, Sen. Jim Banks (R‑IN) filed an amendment to the FY2026 National Defense Authorization Act that would have given the DoD’s Office of Strategic Capital explicit authority to acquire equity and would have redefined capital assistance to include equity, options, warrants, and similar instruments. In a February Senate Armed Services Committee hearing, Sen. Roger Wicker (R‑MS) acknowledged “little law currently exists” regarding equity stakes but said he believes they “make good sense in many cases.” Interestingly, some of the clearest market-based criticism of government equity stakes has come from Democrats. At the same hearing, Sen. Jack Reed (D‑RI) asked, “How can other domestic companies remain competitive when DoD invests so heavily in one company and provides that company a competitive advantage?” Sen. Martin Heinrich and two House Democrats stated in a letter to administration officials that, “By privileging select corporations through direct ownership—essentially picking winners and losers—the government may undermine broader market competition and the development of innovative technologies or mineral or material substitutions.” Would these same Republicans and Democrats be taking these positions if a Democrat were in the White House? Well, Capitol Hill is where principles go to die. Regardless, whether motivated by political opportunism or a sincere desire to do the right thing, what matters is that the Pandora’s Box the Trump administration opened, should be closed by Congress. The Senate Banking Committee has not publicly committed to moving its own DPA reauthorization bill. But if it does, the bill should make clear that the executive branch cannot acquire equity stakes, warrants, or similar rights in private firms under the DPA. Congress should then use the next defense authorization bill, or another vehicle, to make the same point for Pentagon industrial base authorities and the Office of Strategic Capital.

Mar 30, 20268 votes

Congress Should Stop, Not Enshrine, Equity Stakes in Private Companies by Government

Mar 30, 20268 votes

Congress Knows It Has a Spending Problem, But Won’t Fix It

Romina Boccia At a recent Senate hearing on the fiscal outlook, legislators and budget experts said the quiet part out loud: the United States is running historically large deficits in non-crisis times, and we need to stop pretending that we can grow our way out of it. , Washington’s problem isn’t ignorance. It’s that the only politically safe position is to acknowledge the debt crisis — and then do nothing to fix it. Congress lacks an effective mechanism to make politically difficult decisions possible. The message from the hearing was stark: this is not a crisis caused by recession or war. It is the result of policy choices lawmakers refuse to confront. The federal budget is increasingly tilted toward unsustainable promises made to older Americans, financed by borrowing that imposes the costs on younger Americans. Earlier CBO projections show that by 2029, the federal government will spend roughly 50 cents of every budget dollar on benefits for Americans 65 and older. , Fiscal discipline is politically costly, but inaction will be disastrous. How can we restore sanity to federal budgeting? , The long-term picture is even worse. According to the government’s Financial Report, more than 100 percent of long-term unfunded obligations stem from just two programs: Medicare and Social Security (their combined shortfalls reflect the difference between their dedicated taxes and projected spending, which exceed the total because the rest of the budget shows a small projected surplus over the same period). , , Hosted by the Senate Subcommittee on Fiscal Responsibility and Economic Growth, the hearing featured Congressional Budget Office (CBO) Director Phillip Swagel, Committee for a Responsible Federal Budget (CRFB) President Maya MacGuineas, and Yale Budget Lab founder Martha Gimbel. Sen. Ron Johnson (R‑WI) offered a blunt assessment of the political stalemate during opening remarks. Democrats “insist the solution is simply making the rich pay their fair share,” he said, but then don’t follow through on meaningful tax increases. Republicans argue there’s a spending problem, yet “when they had the power to return spending to a reasonable pre-pandemic level, the One Big Beautiful Bill simply did not meet the moment.” In other words, Washington’s fiscal debate is a performance: each side criticizes the other for choices it is unwilling to reverse when it has the opportunity. The day of reckoning is no longer far off. Social Security faces financing constraints in just six years, triggering automatic benefit cuts of roughly 25 percent. Medicare’s hospital trust fund is not far behind. Whether Congress chooses slower benefit growth, means-testing, eligibility changes, higher taxes, or some blend, delay only increases the eventual scale of the adjustment. One illusion common to both sides of the political aisle is the idea that tough choices can be avoided with faster economic growth. As CBO Director Phillip Swagel noted, stronger growth raises revenues but also increases interest costs on a truly massive debt. Interest costs are already higher than defense spending and rising quickly. As debt rises to excessive levels, even good economic news can come with a fiscal price tag. The hearing also highlighted a generational injustice that Washington tiptoes around: the budget increasingly redistributes from younger, poorer Americans to older, wealthier ones. Swagel (CBO) noted that children ultimately bear the cost of borrowing that today’s voters authorize. MacGuineas (CRFB) and Gimbel (Yale) underscored how the federal government spends far more on seniors than on children. What’s more, today’s elderly, as a cohort, are not the economically precarious group they once were: senior poverty has declined below that of the general population. That’s because the budget doesn’t redistribute based on need. Spending favors the most politically organized constituency, while deficit financing shifts costs to those with the least political power. And acting to fix the fiscal imbalance requires something that Congress would rather avoid: imposing concentrated political pain today to prevent much larger, but more dispersed economic pain tomorrow. Every fix to the US debt path has identifiable losers — industries that benefit from tax preferences, higher-income retirees facing slower benefit growth, and special interests whose gravy train of federal taxpayers’ money might get cut off. Those groups show up, mobilize, and threaten to punish politicians at the ballot box. Beneficiaries of reform, however, including younger taxpayers, busy working families, and even future Congresses, rarely advocate on their own behalf. As economist James Buchanan observed in Democracy in Deficit, fiscal restraint rarely produces political rewards. Voters immediately feel spending cuts or tax increases, but they never see the crises that responsible policy prevents — the inflation that never erupts, the interest rates that never spike, the austerity that never becomes necessary. That is why the most valuable conclusion one can draw from this hearing is that the United States needs a process that can make economically necessary (but politically difficult) tradeoffs possible. I have argued for exactly that: an independent fiscal commission, modeled on the Base Realignment and Closure process. BRAC allowed Congress to close military bases it knew were unnecessary but couldn’t politically touch, and succeeded because it created political cover for difficult decisions Congress knew needed to be made. A fiscal BRAC would apply the same logic to the budget’s third rails and sacred cows. Congress would establish the commission, set specific guidelines and targets for what commissioners must accomplish, and reverse the status quo’s default of inaction. The commission’s recommendations could take effect automatically, with presidential approval, unless Congress voted to reject them. That shift — from requiring affirmative action to requiring affirmative obstruction — changes the political calculus. Critics object that commissions are a way to dodge accountability. This commission would do the opposite: return spending accountability to a system built to evade it. Congress abdicated control when it put the largest entitlement programs on autopilot. An effective commission is our best shot at correcting these programs’ unsustainable and unaccountable growth. , , Washington knows it has a spending problem. This Senate hearing made that clear. What it lacks is the will, and an effective mechanism, to do something about it. A BRAC-like fiscal commission won’t make tough choices easy. But it could finally make them possible. Discipline will come eventually. The question is whether Congress chooses it or waits for a crisis to impose it.

Mar 23, 202610 votes

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Articles served from cato.org

Congress Should Retire Section 122

The Case for Letting FISA’s Section 702 Expire

The Case for Letting FISA’s Section 702 Expire

Congress Should Stop, Not Enshrine, Equity Stakes in Private Companies by Government

Congress Should Stop, Not Enshrine, Equity Stakes in Private Companies by Government

Congress Knows It Has a Spending Problem, But Won’t Fix It