Strength in Even Numbers: Maintaining Partisan Balance on the U.S. International Trade Commission
In the wake of the highly contentious presidential nomination of Amy Coney Barrett to the U.S. Supreme Court and her subsequent confirmation without a single vote from the Senate minority party1 just days before the presidential election, it is readily apparent that our courts are not exempt from the ever-increasing conflict2 between political parties.
In this regard, the U.S. International Trade Commission (ITC) is yet again distinguished from federal district courts. Amid allegations of intended court-packing or stacking on both sides of the party line3 , the ITC remains an independent, nonpartisan federal agency4 statutorily designed to remain politically balanced5.
The Commission is comprised of six commissioners, no more than three of whom may be from the same political party6. Each commissioner is appointed by the President and confirmed by the U.S. Senate for a nine-year term7. The President also designates one commissioner to serve as chairman for a two-year period and one commissioner as vice chairman during that time8. The incoming chairman must be a member of a different political party than his predecessor, and the vice chairman must be a member of a different political party than the chairman9. If the President does not designate a chairman, the eligible commissioner with the longest period of continuous service becomes the chairman by operation of law10.
Notably, the current Commission is operating with one vacancy11 despite President Trump’s efforts to fill the positions of both Commissioners Kieff and Broadbent who left the ITC in 201712. While the U.S. Senate confirmed the appointment of Commissioner Stayin (Republican) on August 1, 2019, to replace Commissioner Broadbent (Republican)13 , the nomination of Dennis M. Devaney (Republican) to replace Commissioner Williamson (Democrat) was suspended and returned to the President under the provisions of Senate Rule XXXI14. As a result, Commissioner Karpel, originally nominated to replace Commissioner Kieff15 , was renominated to replace Commissioner Williamson16 , leaving Commissioner Kieff’s position vacant.
In addition, current Commissioner Schmidtlein’s (Democrat) term expires at the end of 202117 , and Commissioner Johanson (Republican) is currently serving as a holdover past the expiration of his original term18. This means that the victor of the 2020 Presidential election will be responsible for the appointment of at least one Democrat and potentially two Republican commissioners if President Trump does not nominate a replacement for the Republican positions prior to the end of this term.
Regardless of who appoints them, however, the future commissioners will assume the crucial role of providing to our future President and Congress clear and accurate information and analysis on a wide range of trade-related issues, irrespective of their own party affiliations19. While the Commission does not on its own formulate trade policy, it must provide unbiased support to the executive branch and the Congress20. The benefit of this arrangement has been recognized and preserved by the implementation of specific tie-breaking statutory provisions in response to at least one previous attempt by Senate committee to create an odd number of Commissioners21. For example, an evenly divided vote by the Commission represents an affirmative determination in antidumping and countervailing duty investigations22 and results in institution in Section 337 investigations23.
Ultimately, the Commission’s structure and the balance among the parties represented reinforce its unique and important role as an impartial agency24. While trade policy may be influenced by the outcome of the election, the independent and impartial role of the Commissioners remains unwavering.
November 3, 2020
1 Nicholas Fandos, The Senate confirms Barrett on a nearly party-line vote, delivering a win to Trump that tips the Supreme Court to the right, The New York Times (last updated Oct. 27, 2020, 2:56 PM), https://www.nytimes.com/live/2020/10/26/us/trump-biden-election.
2 Philip Bump, How the Presidential candidates plan to bridge America’s deep political and cultural divide, The Washington Post, (Sept. 15, 2020, 4:54 PM), https://www.washingtonpost.com/politics/2020/09/15/how-presidential-candidates-plan-bridge-americas-deep-political-cultural-divide/.
3 Barbara Sprunt, Biden Campaign Continues to Deflect on Court-Packing, NPR (Oct. 11, 2020, 6:38 PM), https://www.npr.org/2020/10/11/922806310/biden-campaign-continues-to-deflect-on-court-packing; Aaron Blake, The GOP’s court-stacking, The Washington Post (Oct. 12, 2020, 11:30 AM), https://www.washingtonpost.com/politics/2020/10/12/no-gop-didnt-engage-court-packing-it-did-plenty-court-stacking/.
4 About the ITC, United States International Trade Commission (last accessed Nov. 2, 2020, 3:17 PM), https://www.usitc.gov/press_room/about_usitc.htm.
5 19 U.S.C. § 1330(a).
7 19 U.S.C. § 1330(a)–(b).
8 19 U.S.C. § 1330(c).
9 Id. at 1330(c)(1)–(3).
10 Id. at 1330(c)(2).
11 USITC Commissioners, United States International Trade Commission (last accessed Nov. 2, 2020, 3:18 PM), https://www.usitc.gov/commissioner_bios.
12 Michelle Rosenberg, Trump Nominates Commissioners to the International Trade Commission, Fox Rothschild LLP (Oct. 31, 2017), https://internationaltrade.foxrothschild.com/2017/10/articles/global-trade/americas/trump-nominates-commissioners-to-the-international-trade-commission/.
13 Commissioner Randolph J. Stayin, United States International Trade Commission (Aug. 2020); Nominations Sent to the Senate, White House Statements & Releases, (Jan. 16, 2019), https://www.whitehouse.gov/briefings-statements/nominations-sent-senate/.
14 115th Congress (2017-2018), PN1058, https://www.congress.gov/nomination/115th-congress/1058; Megan Casella, A new tariff bill in town, Politico (Jan. 30, 2019), https://www.politico.com/newsletters/morning-trade/2019/01/30/a-new-tariff-bill-in-town-494720.
15 President Donald J. Trump Announced Intent to Nominate Personnel to Key Administration Posts, White House Nominations & Appointments, (Feb. 23, 2018) https://www.whitehouse.gov/presidential-actions/president-donald-j-trump-announces-intent-nominate-personnel-key-administration-posts-37/.
16 Three Nominations and One Withdrawal Sent to the Senate, White House Nominations & Appointments, (June 5, 2019) https://www.whitehouse.gov/presidential-actions/three-nominations-one-withdrawal-sent-senate/.
17 Commissioner Rhonda K. Schmidtlein, United States International Trade Commission (June 2018), https://www.usitc.gov/press_room/bios/schmidtlein.htm.
18 Commissioner David J. Johanson, United States International Trade Commission, (June 2020), https://www.usitc.gov/press_room/bios/johanson.htm.
19 Paul R. Bardos and Alexander B. Hammer, A Centennial History of the USITC, 11-13 (Nov. 2017), https://www.usitc.gov/documents/final_centennial_history_508_compliant_v2.pdf.
20 Id. at 13, 137.
21 Id. at 137 (“For example, in the consideration of the 1974Trade Act, the Senate Finance Committee proposed changing the number to seven.”).
22 Antidumping and Countervailing Duty Handbook (Fourteenth Edition), United States International Trade Commission, (June 2015), https://www.usitc.gov/trade_remedy/documents/handbook.pdf.
23 Bardos and Hammer, supra note 20, at 137.
24 Id. at 141.