Indeed, officials from both the Trump and Biden administrations have invoked economic security as a reason for action across a wide range of policy issues. In addition to tariffs on goods from China and on steel and aluminum, take the proposed outbound investment screening mechanism, the Trump administration’s efforts to force a sale of TikTok, or the extensive new export controls, as obvious examples. The justifications reflect a broader conversation on security that is now pervasive in trade policy circles. Compare the U.S. Trade Representative’s Annual Report published in 2016 to the version published this March. The 2016 report mentioned security 25 times, frequently in the context of food security. The 2024 report mentioned security 129 times. And the 2024 Report added a section on “enhancing economic security,” just one example of the securitization of U.S. foreign affairs, especially in Washington’s relationship with Beijing.

In a forthcoming article, we argue that this linking of “foreign commerce” to “economic security” in U.S. policymaking has had the effect of dangerously, and often erroneously, intermingling authority that Congress has delegated to the executive branch with the president’s constitutional powers to oversee foreign affairs. The Constitution assigns plenary authority over taxes, tariffs, and commerce – including, explicitly, foreign commerce – to Congress. The Constitution assigns other kinds of foreign affairs powers, such as the role of commander-in-chief of the armed forces or the power to negotiate treaties, to the president. The executive branch’s authority over foreign commerce began as a statutory authority, but over time the executive, with some backing from the courts, has increasingly claimed that such authority has constitutional dimensions. Constitutional claims over the president’s non-commercial foreign affairs authority have begun to engulf understandings of Congress’s plenary authority over the regulation of commerce with foreign nations – from the perspective of both the executive branch as well as the courts. 

Assertions of Executive Branch Power in Foreign Commerce

Officials from both the Biden and Trump administrations have advanced novel arguments before the courts asserting this point: foreign commerce is part of security, and therefore the president has his own constitutional foundations for action in the domain of commerce. In a case concerning the Trump administration’s tariffs on steel and aluminum, the government argued that “[t]he President’s coexistent constitutional foreign affairs and national security responsibilities compel the conclusion that Congress did not enact an unconstitutional statute.” In the context of a case about tariffs, this claim is extraordinary. The text of the Constitution expressly allocates the power to tax, as well as the power to regulate foreign commerce, to Congress exclusively. It makes no difference that the statute in question – Section 232 of the Trade Expansion Act of 1962 – invites the president to evaluate a threat to national security as a predicate to exercising purely delegated power to impose taxes. Such an exercise of delegated power does not open the door to his constitutional authority; rather, it draws on his expertise. 

The idea that statutory interpretation – which, as the Supreme Court has emphasized, is the crux of nondelegation analysis – would be different because the president has constitutional authority over other kinds of foreign affairs issues represents a significant effort to expand extra-textual presidential foreign affairs powers into areas reserved to Congress. And this argument was not a one-off. Although courts have not embraced the executive branch’s most expansive arguments, they have usually upheld challenged action that the executive branch has defended in these terms. For example, in Transpacific Steel LLC v. United States, the government defended the president’s decision to impose additional tariffs under Section 232 after the statutory deadline for presidential action by arguing that the president has inherent authority to modify his actions “when the President is exercising powers that are quintessentially executive in nature” such as “foreign policy and national security.” Although the Federal Circuit did not embrace this expansive argument explicitly, it interpreted Section 232 to allow the president to modify his actions after the statutory deadline. In this way too, disputes over foreign commerce are coming to resemble those over national security, where the president (almost) always wins.

Congress Can Restore the Balance

Given that the courts usually have not been willing to course-correct in this area, it falls on Congress to restore the balance in its favor. And rightly so; the complex geopolitical problems of today may require more guidance from our elected leaders. Existing delegations to the executive branch – which, like Section 232 and Section 301 of the Trade Act of 1974, often date from the Cold War – are imperfect instruments for the set of geoeconomic challenges currently facing the United States. Congress should reconsider these authorities with attention to the domestic, economic, and foreign policy challenges of this century, not the last. To the extent “economic security” is a central element of U.S. foreign and domestic policy, the many constituencies in that policy space should press for Congress’s attention. Our article outlines three potential paths to serve that end. 

First, we argue that Congress should amend a variety of statutes (such as Section 232 and Section 301) to sunset the president’s economic security actions after 90 or 180 days without the possibility of renewal unless Congress authorizes their extension. As the cases discussed above illustrate, the president has used his constitutional authority over foreign affairs to push the limits of broadly-worded delegations, and to deflect efforts to persuade courts to read such delegations narrowly for separation of powers reasons. A clear statutory withdrawal of tariff authority would blunt the president’s efforts, in effect, to constitutionalize control of foreign commerce and to wage trade war. It would still enable the president to act quickly in the face of an emergency, but without sacrificing Congress’s role. During the Trump administration, a number of bills were introduced that would have curtailed the president’s authorities in ways similar to those we propose, but none made it out of committee. Given the uncertainty created by this year’s presidential election – in which former President Trump has promised even more expansive uses of executive authority, including an across-the-board 10 percent tariff on imported products if reelected – Congress may be more disposed to enact such legislation in 2024, regardless of which candidate occupies the White House in 2025. 

Second, Congress should prohibit the executive branch from relying on an international agreement it has negotiated as the legal basis under which any good or service is imported into the United States, exported from the United States, or regulated while in the United States, unless Congress has either explicitly authorized the agreement in advance or approved it after its conclusion. Trade agreements and their negotiations have increasingly become a flashpoint for tension between the executive branch and Congress. In recent decades, the executive branch has concluded hundreds of commercial agreements – often with significant geopolitical and foreign affairs implications – that were neither authorized nor approved by Congress. Congress should clarify and reform the executive branch’s trade agreement authorities by imposing bright-line rules via statute. While the executive branch might object that such a statute interferes with its constitutional authority to negotiate with foreign countries, our proposal is carefully drawn to limit only the domestic effects of agreements, not the president’s authority to negotiate the agreements in the first place – an approach that falls well within Congress’s plenary constitutional authority over commerce.

Third, and finally, Congress should eliminate the U.S. Court of Appeals for the Federal Circuit’s exclusive jurisdiction over appeals in most trade cases and transfer that jurisdiction to the U.S. Court of Appeals for the D.C. Circuit. At present, the Federal Circuit is the appellate court for final decisions from the U.S. Court of International Trade. In that role, it has been responsible for the decisions we discuss above upholding broad exercises of authority by the executive branch. But the Federal Circuit is primarily an intellectual property court. Indeed, one member of the court has estimated that intellectual property cases consume more than half the court’s docket and more than 80% of its time. Given that international trade law cases in federal court are primarily statutory interpretation and administrative law cases, the D.C. Circuit makes more sense as a forum for appeals. As the premier administrative law circuit in the country, running appeals through the D.C. Circuit would force the bar and the Court of International Trade to approach these administrative law cases in the same manner as other administrative law cases – and that would enhance review of the executive’s activities in a way that is currently lacking. 

Judicial Review Without Chevron

A shift to the D.C. Circuit would be especially well-advised in light of the Supreme Court’s recent line of cases cutting back on administrative agencies’ authority. The most recent such decision is Loper Bright Enterprises v. Raimondo, which eliminates “Chevron deference.” Under the “Chevron doctrine,” courts deferred to an agency’s reasonable interpretation of an ambiguous statute. The Chevron framework applied generally, not specifically to trade statutes, but agencies administering trade statutes regularly relied on Chevron deference to defend their interpretations. Chevron’s demise leaves the scope of deference to agencies up to the federal courts to determine going forward. 

The Supreme Court’s opinion suggests that lesser deference, such as when a court uses an agency interpretation as an aid in the court’s decision as to a statute’s correct interpretation, might continue to be appropriate. In trade cases, however, the government is almost sure to double down on its constitutional arguments, invoking “foreign affairs exceptionalism” – “the belief that legal issues arising from foreign relations are functionally, doctrinally, and even methodologically distinct from those arising in domestic policy” – to try to shield its interpretations of trade authorities from judicial review. The Federal Circuit’s record in trade cases suggests that it may be open to these arguments, creating special deference for trade statutes (over which, again, it often has exclusive jurisdiction), while other circuits develop a less deferential standard based on Loper Bright for other kinds of regulation. 

An early test of how the Federal Circuit will handle the Supreme Court’s new administrative law doctrines in these foreign commerce contexts is likely to come in HMTX Industries v. United States (in full disclosure, one of us has filed an amicus brief in HMTX in support of the challengers). That case asks whether Section 301 – which authorizes, and sometimes mandates the U.S. Trade Representative to take a variety of measures to counter unjustifiable, unreasonable, or discriminatory actions by foreign countries that burden U.S. commerce – allows the executive branch to increase the tariffs on products from China without the investigation usually required by the statute. The government asserts that a new investigation is unnecessary because these new tariffs address the tariffs China imposed on U.S. goods in response to the Trump administration’s Section 301 tariffs, which were designed to combat China’s intellectual property theft. Despite the Supreme Court’s recent change of direction with regard to agency authority, the government has continued to argue that the decision to expand the tariffs without a new investigation is subject to only limited review. 

As “economic security” has become an organizing concept for U.S. foreign commerce policy, the executive branch has drawn on this blurry policy space to argue that statutory limits on its foreign commercial authority do not bind it. Instead, it has buttressed its delegated authority with claims of independent constitutional authority over commercial matters like tariffs. And unlike Founding Era courts, today’s judiciary has often accepted these claims. Clearly, some members of Congress have different views on how to address economic security concerns. Congress has grabbed some low-hanging fruit by enacting legislation that reclaims some of its authority over trade agreements and there are signs of bipartisan interest in other trade actions. But whether Congress will intervene to address the executive’s efforts to use economic security to expand its control over commerce remains to be seen.

To read the full article published by Just Security, click here.

To read the authors’ original source paper, click here.

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I. INTRODUCTION

The Biden Administration promised to build the economy from the bottom up and the middle out, and we are doing just that. Unemployment is at its lowest rate in over 50 years. This Administration has seen more jobs created in two years than any other Administration has seen in four. Manufacturing is rebounding faster than it has in almost 40 years, while wages are rising, and rising even faster for lower- and middle-income workers. The American Rescue Plan, the Bipartisan Infrastructure Law, the CHIPS and Science Act, and the Inflation Reduction Act were historic investments in America, and they are working.

The Biden Administration continues to believe that trade can—and should—be a force for good. Done right, and in coordination with other policy disciplines, it can grow the middle class, address inequality, tackle the climate crisis, and level the playing field by promoting fair competition. We remain committed to upholding a fair and open global trading system—one that puts working families first, raises living standards, ensures full employment, and promotes sustainable development.

We are continuing to rewrite the story on trade by bringing more people into the process and developing policies and initiatives that are resilient and sustainable and create broad-based growth. In 2023, our trade agenda will continue to focus on unlocking new opportunities for American workers and families—while also supporting and strengthening the middle class, driving decarbonization, and creating good-paying jobs across the American economy. In the aftermath of the COVID-19 pandemic and Russia’s brutal, illegal attack on Ukraine, it also means fortifying relationships with our partners and allies and strengthening critical supply chains to withstand shocks and disruptions to the system and to defend democratic values.

To realize this vision, we are continuing to forge the partnerships necessary to update and enforce the rules governing the global economy and trade.

In the Indo-Pacific and the Western Hemisphere, the United States is leading with a positive economic vision through the Indo-Pacific Economic Framework for Prosperity and the Americas Partnership for Economic Prosperity. With the European Union, we continue to deepen our relationship and intensify cooperation on pressing challenges, such as the People’s Republic of China’s (PRC) non-market policies and practices. Further, we are intensifying negotiations on a first-of-its-kind trade arrangement to address non-market excess capacity and the greenhouse gas emissions of imported steel and aluminum. We are also continuing to build out the Trade and Technology Council, and the Trade and Labor Dialogue under its umbrella, to pursue shared priorities, including supply chain resilience, challenges posed by non-market economies, inclusive digital trade, and the elimination of forced labor.

Additionally, in 2022, we kicked off ambitious initiatives with Taiwan and Kenya to deepen our trade and economic relationships with both partners, and we aim to make rapid progress on both initiatives in 2023. At the World Trade Organization (WTO), after working with WTO Members to deliver key outcomes during the Twelfth Ministerial Conference, the United States is driving the conversation on transforming the institution to be more responsive to the rapidly changing global economic environment and to the needs of everyday people.

Moreover, following the successful U.S. Africa Leaders Summit last year, the Administration will continue to strengthen our partnerships with the African continent and to support regional and continental integration efforts, with the well-being of workers, women, and youth to inform our work.

Our Administration is also fully committed to continued enforcement of our existing trade agreements to hold our trading partners accountable. This includes utilizing the United States-Mexico-Canada Agreement’s Rapid Response Mechanism to raise labor standards across North America and drive a race to the top. We are also using other mechanisms to open, maintain, and enhance access to markets and address unfair trade practices that harm our workers and businesses and ensure that they enjoy the benefits that they were promised.

Finally, a vital element of our effort to build an inclusive trade policy agenda is understanding the effects of our policies on underrepresented and underserved workers and communities, and ensuring that they have a say in how our policies are designed and implemented going forward. We know that an important part of making trade work for all Americans is having a better understanding of the effects of past trade policies.

At the Administration’s request, the United States International Trade Commission (USITC) conducted a first-of-its-kind study of the distributional effects of goods and services trade and trade policy on U.S. workers. Through an extensive information gathering process, the investigation brought to light what many already knew: while trade has benefited many, devastating effects have been concentrated in certain communities. The report also illustrated the gaps around data, and particularly disaggregated data, that can further inform a more equitable trade policy. USTR will continue working with the USITC and other partners to design trade policy that addresses inequality and supports the goals and aspirations of all Americans. USTR will also continue to implement its Equity Action Plan to ensure that racial and gender equity is embedded in its ecosystem.

By placing workers and everyday people at the center of our trade policy, the Biden Administration will continue to use trade as a force for good, to build a durable and fair tomorrow by pursuing resilience, sustainability, and inclusive prosperity.

To read the full trade policy agenda, please click here. 

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