At the core of U.S. trade law is an under-studied structural dichotomy. On the one hand, well-established statutory authorities enable the President to eliminate trade barriers through negotiations with U.S. trading partners. On the other hand, different, lesser-known authorities allow the President to erect trade barriers on an exceptional basis where necessary for U.S. economic security. Rather than thinking of free trade as a source of or tool for economic security as political theorists long have, our law codifies these authorities as though they are in contrast to one another—allowing departures from the free trade norm when security so demands. Further, the two categories of authorities suffer from a mismatch in what I call “trade delegation disciplines”: While Congress kept tight controls on the President’s free trade negotiations, it abandoned controls on the exceptional, security-driven authorities, empowering the executive to handle U.S. trade interests in an unbridled way that our nation’s Founders feared.
This Article is the first to identify how trade law has exceptionalized security. It develops an original typology of the categories of congressional delegations that constitute our exceptional trade apparatus. This structural account delivers both positive and normative payoffs. Apart from explaining the institutional terrain, identifying the dichotomy challenges the traditional assumption that all executive departures from the prevailing free trade norm are illegal and illegitimate. The historical record demonstrates that, surprisingly, security exceptionalism in U.S. trade law is the product of misunderstood statutes that have been unmoored from their original purposes. Finally, although the exceptions may be difficult to undo or to correct, this analysis shows that trade law has space for a wide array of innovative and nontraditional disciplines that could serve to limit the damage that exceptionalizing security has caused. A review of those options likewise provides certain lessons for the limitations of the nondelegation doctrine and separation of powers.
* Associate Professor, University of Miami School of Law, and Senior Fellow, Institute of International Economic Law, Georgetown University Law Center. For valuable feedback on earlier iterations of this Article, I am particularly grateful to Harlan Cohen, MJ Durkee, Jean Galbraith, Tim Meyer, Andres Sawicki, and Pierre-Hugues Verdier. Thanks also to Rosa Brooks, Bill Burke-White, Elena Chachko, Joe Conti, Caroline Mala Corbin, Cosette Creamer, Mark Drumbl, James Gathii, Monica Hakimi, Rebecca Hamilton, Ben Heath, Duncan Hollis, Rebecca Ingber, Andrew Lang, Simon Lester, Mark Pollack, Steve Ratner, Anthea Roberts, Victoria Sahani, Steve Schnably, Greg Shaffer, Beth Simmons, Barry Sullivan, Chris Whytock, Mark Wu, Ingrid Wuerth, David Zaring, and other participants from workshops at the Cato Institute Program on Geoeconomics, the Fordham International Law Journal Symposium, the Law and Society Association Annual Meeting, Loyola University Chicago School of Law, Ohio State University Moritz College of Law’s Economic Nationalism Program, the University of Miami School of Law, the University of Michigan School of Law Junior Scholars Program, the University of Pennsylvania Perry World House, and Vanderbilt Law School’s International Law Symposium for their generous and helpful comments. Finally, I am grateful to the members of the Stanford Law Review editorial team, especially Sarah Dohan, for their thoughtful and supportive engagement, my research assistants, Arin J. Kim and Philip Stekol, and the Miami Law librarians for their very useful contributions.